G. Krylova—Defence Counsel Commentary
The first court hearing concerning the application of the Moscow Northern Administrative Circuit prosecutor for the liquidation of the Religious Congregation of Jehovah’s Witnesses in Moscow was heard at the Golovinskiy Intermunicipal Court on September 29, 1998. In essence, the demands of the prosecutor in his application are a manifestation of militant anti-cultism, which is currently being actively used by opponents of religious minorities.
An active campaign against religious organizations has begun in the media. Although some stories in the press give a fair coverage of events, the overwhelming majority of stories in the press and television reports are biased and in essence reflect the views of the Russian Orthodox Church. In some broadcasts deceptive editing and/or derisive commentary is used to equate Jehovah’s Witnesses with satanic sects. This can only be interpreted as an attempt to influence the court by shaping a negative public opinion toward Jehovah’s Witnesses.
The background of the case is as follows: Anti-cult groups have been writing to various state agencies for four years demanding that Jehovah’s Witnesses’ work be banned. For this very reason checks have been made into the religious organization on several occasions in both St. Petersburg and Moscow, including in the context of criminal cases. However, no evidence of any wrongdoing (not to speak of any crimes) has been uncovered, and all criminal cases were closed on exonerative grounds, either due to the lack of a crime or the lack of evidence of a crime.
At this point in 1996 the anti-cult organizations The Committee for Protection of the Family and the Individual (St. Petersburg) and The Committee for Rescuing Youth (Moscow) filed a lawsuit demanding that the Russian Administrative Center of Jehovah’s Witnesses be liquidated and that they be awarded 100 billion rubles in psychological damages, supposedly for harm inflicted on the mental and physical health of the religion’s members. If the anti-cultists demands had been awarded, this would in effect have meant a ban on Jehovah’s Witnesses throughout all of Russia, and the forced transfer of all its property (in particular its headquarters in Solnechnoye, which was built by the volunteer labor of believers not only from Russia, but also the United States and Western Europe) to the anti-cult groups. It should be noted that the grounds given in the anti-cultists’ lawsuit in St. Petersburg are similar to the application of the prosecutor now being heard — that Jehovah’s Witnesses feel theirs is the only true religion and declare all others to be false, “failure to fulfill civic obligations” (this because of their choice of alternative service instead of the military; non-involvement in political affairs; refusal to celebrate state, religious, and family holidays; and “inflicting harm to one’s health” — for their refusal of blood transfusions and supposed psychological changes from participation in the congregation’s activity).
The lawsuit was first reviewed by the Sestroretsk Regional Court of St. Petersburg, and subsequently forwarded to the St. Petersburg City Court on the provincial level. In April 1998 the court found that the anti-cult organizations were not legally empowered to file a lawsuit for the liquidation of an organization and to receive monetary compensation for harm that had supposedly been inflicted on others. The Prosecutor’s Office and the Justice Administration of St. Petersburg officially refrained from participation in the trial.
Now the anti-cult groups shifted the weight of their efforts to the religious congregation in Moscow. Jehovah’s Witnesses in Russia number approximately 250,000 people, and one of the largest communities is in Moscow, which consists of approximately 10,000 believers. Although all the negative information in the case was provided to the investigation by the anti-cultists, the investigation opened on the basis of their complaint confirmed the absence of any crimes in the congregation’s activities. Although the criminal case was closed on four occasions, the complaints of anti-cult groups led to these complaints being overruled by higher officials in the prosecutor’s office on the grounds that the investigation was “insufficient”. If one looks at the text of the investigation’s documents, it is not hard to see why the anti-cultists strove to achieve a change in the reasons for the investigator’s decision. For example, in the report closing the case on December 28, 1997, the investigator writes: “Having analyzed the Committee for Rescuing Youth’s claims listed above concerning violations of the constitutional rights of citizens by the religious organization of Jehovah’s Witnesses, the investigation found that the complaints of the Committee for Rescuing Youth are based on their active hostility toward this particular religious organization, the members of which they deny the opportunity to exercise their constitutional rights on the basis of their denomination . . . having analyzed the evidence collected in the case and evaluating it as a whole, the investigation has found that the activity of the organization, as well as that of the leaders of the religious society of Jehovah’s Witnesses, is not connected with the infliction of harm to the health of citizens or other infringements on the individual or the rights and freedoms of citizens and does not compel citizens to refuse to fulfill their civic obligations or to commit illegal acts, and is in complete harmony with the Constitution of the Russian Federation and its legislative acts . . .”
Why then, only four months later, in April 1998, did the investigation, without establishing any new evidence, come to a completely opposite conclusion: “… having evaluated the evidence collected in the case, the investigation feels that the religious organization of Jehovah’s Witnesses violates international laws on human rights, the Russian laws ‘On the Freedom of Religion’, ‘On Education’, and others, and flouts the provisions of the Russian Constitution, although specific cases of crimes committed by members of the organization were not uncovered, as a result of which it is impossible to bring them to criminal accountability for specific wrongdoing”? Why, possessing all the same evidence presented by the Committee for Rescuing Youth, did the investigation find their slanderous accusations to be justified, directly quoting them in the report: “Jehovah’s Witnesses are a powerful totalitarian sect of worldwide significance, which engages in the recruitment of underage children with the use of elements of psychic coding, and significantly worsens the financial status of the sectarians’ families by a strict system of collecting fees for the sect, inflames hatred toward traditional religions and religious movements of the Russian Orthodox Church, which is leading to the destruction of national traditions in the minds of the young generation, increases the number of broken family ties, compels others to refuse to carry out their civil obligations (military duty) and blood transfusions, inflames religious and national discord, preaches the absolute superiority of certain people over others, creates fear, agitation, and psychosis in expectation of the ‘end of the world’”?
The change in the position of the prosecutor conducting the investigation of Jehovah’s Witnesses is no coincidence. For a lawyer, the groundlessness of the investigator’s arguments are obvious, as well as the interests of which religion she was acting. Among her conclusions is the “destruction of national traditions in the minds of the young generation”, among her evidence is a report from the Department of Catechization and Religious Education of the Holy Synod of the Moscow Patriarchate, and an opinion from the Center for Rehabilitation of Victims of Non-traditional Religions in Memory of A. S. Khomyakov with the Moscow Church of All Grieving Joys, which is headed by a Russian Orthodox priest. These documents in both form and content give a rather derogatory evaluation of not so much the work, but the teachings of the religious organization. Although theological questions are not decided in the courtroom with the prosecutor as the plaintiff, there is no doubt that the attempt in this case to take the trial out of the legal arena and into the sphere of doctrinal disputes is coming from the government, whose interests are being represented by the prosecutor. Therefore, this trial cannot be considered outside the context of Church-State policy in Russia.
This trial against the Moscow congregation of Jehovah’s Witnesses is the first attempt to liquidate a religious organization on the basis of the discriminatory law “On the Freedom of Conscience and on Religious Associations”. This precedent will without a doubt determine how judicial practice of application of this law will develop in the future. Therefore, the first trial has attracted the keen interest of not only members of the congregation, but also from the media and defenders and opponents of religious freedom in Russia.
Although the court only considered procedural matters on September 29, their resolution already give a basis for certain predictions of how events will further develop.
At the beginning of the trial the prosecutor made a motion to have representatives of a public association — The Committee for Rescuing Youth — included as a third party in the case, that is, the same committee that demanded liquidation of the religious organization in St. Petersburg and who supplied the complaints and materials for the criminal case that was investigated. The procedural rights of a third party in a trial are rather broad and are equal to the rights of the other parties to a considerable degree. Thus, an anti-cult organization would have been officially included among the participants in the case. The prosecutor explained that this organization had filed a complaint with the prosecutor’s office demanding that the congregation’s activity be banned, and its materials served as the basis for the prosecutor’s application to the court. However, the law requires that third parties have not a factual, but a legal link to the participants in the case, that is, that the decision of the court would affect the rights and/or obligations of the third party in relationship to the participants in the trial. It is clear to anyone acquainted with the civil case that the anti-cult group was in fact the initiator of the case. However, it is also clear that the anti-cult group has no legal connection to either the prosecutor or the religious congregation. Therefore, the court agreed with the objections of the congregation’s members and turned down the prosecutor’s motion.
At the same time, the prosecutor did not point to the mandatory participation of the Justice Administration (which registered the congregation, exercises supervision over its activity, and registers its liquidation in the event of such a decision by the court) as a third party in such cases. The Justice Administration was included in the case by motion of the congregation’s representatives.
The preparation of these motions shows that the prosecutor’s application to the court for liquidation is not based in the law. A mandatory participant in the trial, the Justice Administration, is ignored, whereas in violation of legal norms an attempt is made to legalize the participation of the anti-cultists in the trial.
Undoubtedly, Jehovah’s Witnesses took a certain risk by demanding observance of the law in this case. Although the Justice Administration of Moscow has not issued any complaints concerning the congregation’s activity, there is no guarantee that its position at the trial will not be determined by political considerations similar to those of the prosecutor. However, the congregation decided to demand adherence to all procedural norms as a matter of principle, even if tactically it might seem advantageous to exploit the prosecutor’s neglect of the law. Temporary gain and games with the law cannot form the tactics, much less the strategy, of a religious organization in a case that will set a precedent.
The next procedural matter was the participation of a foreigner in the trial. According to constitutional and procedural standards, both citizens and non-citizens of Russia enjoy equal rights in court. Since Jehovah’s Witnesses understand that this trial is about the defense of a fundamental right — the right to the freedom of conscience, which is guaranteed not only by the Russian Constitution, but also by international law, the congregation made the decision to not only entrust its interests to Russian lawyers Galina Krylova and Artur Leontyev, but also to a member of the Canadian Bar Association, John Burns, who has participated in other trials involving Jehovah’s Witnesses. Although there were no real grounds for denying Mr. Burns the opportunity to represent the congregation’s interests, the court report states that he was barred from participation in the case on the basis that there was no interpreter with the necessary documentation. However, an audio recording of the hearing clearly shows the court recognizing Mr. Burns’ power to represent the congregation.
In essence the primary procedural demand of the congregation was a motion to oblige the prosecutor, in accordance with civil procedure, to indicate the specific violations on which he is basing his application for liquidation of the congregation. The reasons given by the prosecutor for his demands are not facts of legal significance. The legal structure of the prosecutor’s application in essence prevents the congregation from defending its legal interests in court and violates the principle of equal rights for the parties, and does not allow them to prepare for the trial as they should. For example, the prosecutor accuses Jehovah’s Witnesses of stirring up religious discord, which is supposedly manifested by the distribution of corresponding literature. This is a crime punishable by law, which, as clearly shown in the investigator’s report, Jehovah’s Witnesses have not committed. Another example is the accusation of infringing on the individual and the rights and freedoms of citizens, in support of which the prosecutor has not indicated a single instance of such infringements, nor has he indicated specifically whose rights and freedoms have been violated and which specific individual was infringed upon. In actuality, the prosecutor is unable to show any violations of rights and freedoms of specific citizens due to the obvious absence of any such violations. References to doctrinal literature cannot serve as evidence of acts and bear witness only to the prosecutor’s intention to take the case outside the legal arena and to turn the court into a doctrinal tribunal.
According to the law, only those interests protected by law are subject to judicial protection, which does not include confessional preferences and religious debates. It is for namely this reason that only actual violations may serve as evidence of the illegality of the actions of a legal entity, which the prosecutor should be obligated to show in his complaint. However, not a single one of the accusations brought forth by the prosecutor is supported by actual violations of the law. For this same reason he was unable to divide his evaluation of the legality of the congregation’s activity into the period before October 1, 1997, that is, when the Russian Law on the Freedom of Religion of October 25, 1990 was in effect, and afterwards. Yet this is a very substantive issue, since the prior legislation stipulated different grounds for terminating the activity of a religious association, and a law cannot be applied retroactively.
In answer to the lawful demand of the congregation’s representatives that facts of legal significance be specified, that is, the specific violations on which the demand for liquidation of the organization is based, as well as the period of time during which (in the prosecutor’s opinion) such violations of the law took place, along with reference to specific laws, the prosecutor indistinctly stated that her witnesses would give the necessary information. The court denied this motion, stating that during the case the prosecutor herself would clarify her application and the corresponding witnesses would be questioned.
Taking into consideration this development, the witnesses for the prosecution are of all the more interest, since among them are members of the anti-cult groups and psychiatrists of rehabilitation institutions. On September 29, 1998, the prosecutor made a motion to add A. L. Dvorkin to this list — an employee of the Moscow Partriarchate, who has made numerous public claims about the “mafia-like nature of sects”, among which he includes Jehovah’s Witnesses; A. N. Khvylya-Olinter, who had previously battled against the Hare Krishnas, but came to a peaceful resolution with them under the threat of a lawsuit; and I. V. Metlik, a so-called “expert” who has openly declared himself a supporter of the Russian Orthodox Church. The court agreed to the expanded list of the prosecutor’s witnesses, in spite of the objections of the representatives of Jehovah’s Witnesses, who pointed out these witnesses’ obvious bias.
The congregation’s representatives are prepared to speak both in the doctrinal and the legal arena. However, the problem is that theological debates cannot be the subject of a trial, especially since in this case participation of the dominant confession, along with references to traditional values, would lead to an obvious outcome. As far as the legal arena is concerned, it must be noted that the absence of specific accusations severely limits the congregation’s ability to defend itself. Thus, the motions of the congregation’s representatives were directed at discovery of specific evidence that would confirm or rebut the prosecutor’s claims that the congregation had violated the law. The problem is that Russian law in the overwhelming majority of cases only allows the court to request medical and other documents, and not the congregation. The court, in accordance with procedural rules, assists the parties in collecting evidence if this presents a difficulty for them. In this case the court did not render such assistance, refusing to make inquiries to the corresponding psychiatric and hematological clinics, and limiting itself to requesting the criminal case for review. If one takes into consideration the fact that the documents presented by the prosecutor, which include information from the Committee for Rescuing Youth, letters from various Russian Orthodox organizations, and even the report Sects in France, were allowed into the case by the court, it is clear that at least at the present the court is not demonstrating a even-handed approach to the trial’s participants.
The court also refused to transfer the case to Moscow City Court for review as the court of first instance. In spite of the seeming insignificance of this matter, the principle importance of a correct definition of jurisdiction in hearing this case is clear to lawyers. It’s no coincidence that Article 47 of the Constitution clearly states that no one may be denied the right to have his case heard by the court and judge of jurisdiction as determined by law. When a case is heard by a regional court as the court of first instance, the decision is appealed to the court on the provincial level. However, when the case is heard on the provincial level as the court of first instance, the decision may be directly appealed to the Supreme Court of Russia. At the trial in St. Petersburg, it was determined that a regional court does not have the right to try such a case as the court of first instance. At first the Golovinskiy Court in Moscow also refused to hear the case at first instance, ruling that an application for the liquidation of a congregation registered at the provincial level must be filed by a provincial prosecutor with a provincial court, and not the prosecutor of an administrative circuit as in this case. The Moscow City Court sustained the prosecutor’s protest and overruled this decision. Thus, a provincial court ordered a regional court to hear the case on its merits.
As for the final matter, the trial had attracted the attention of believers and the media. Since the courtroom could not hold all those who wished to attend the trial, representatives of the congregation made a motion to allow filming and audio recording as well as a taped video record of the trial. The court permitted audio recording. This is very significant due to the absence of a law requiring a complete record of court proceedings and the developed practice of summarized court records. In particular, discrepancies were uncovered at the very first hearing between the audio recording and the court record on the matter of the participation of Canadian lawyer John Burns in the trial.
The trial was adjourned until November 17, 1998, since time is needed for the prosecutor’s office to notify the Justice Administration about the hearing.
In summary of the first court hearing, the following conclusions can be made:
- The prosecutor’s demands are not based in the law. The content of his application for liquidation of the congregation and the list of his witnesses suggest an attempt by the prosecutor to take the trial outside the legal arena and into doctrinal matters. This is evident also in the direct participation of employees of the Russian Orthodox Church in the trial.
- Anti-cultists will have an active role in the trial. They are the actual instigators of the case and the primary witnesses for the prosecution. At the same time, the prosecutor, in violation of the law, made a motion that the anti-cult organization be officially recognized as a procedural participant in the case.
- The prosecutor has ignored mandatory procedural rules.
- The rules on jurisdiction have been violated. This violation was predetermined by the decision of the Moscow City Court, which as a provincial court should have heard this case as the court of first instance.
- The prosecutor and the anti-cultists are receiving the active support of the media, which shapes public opinion and in doing so is attempting to influence the court.
- The work of the defense for Jehovah’s Witnesses is to a degree limited by current procedural rules for receiving evidence. The court at this time is not rendering assistance to the defense by collecting evidence as stipulated by the law.
Attorney at law G. A. Krylova