Update on Jehovah’s Witness cases before the European Court of Human Rights: implications of a surprising partnership

ABSTRACT

This contribution details the large number of cases carried by Jehovah’s Witnesses to the European Court of Human Rights during its existence, and examines the many positive outcomes of those cases for the Witnesses and for religious freedom in the Council of Europe region. There is also discussion of theoretical debates concerning the underlying philosophy of the Court as it adjudicates the many religion cases the Witnesses have brought, and concepts from the sociology of law such as ‘courts as partners’ and ‘third party partisans’ also are examined as possible explanations of how the long-term and surprising arrangement has evolved over the life of the Court.

KEYWORDS:

• European Court of Human Rights
• Jehovah’s Witnesses
• Council of Europe
• Article 9
• religious freedom
• ‘courts as partners’
• ‘third party partisans’

Disclosure statement

No potential conflict of interest was reported by the author.

List of cases cited

Bayatyan v. Armenia, no 23459/03, decided 7 July 2011 Grand Chamber judgment.

Grandrath v Germany, no. 2299/64, decided 10 December 1966.

Christian Religious Organization of Jehovah’s Witnesses v. Armenia, no. 73601/14.

Religionsgemeinschaft der Zeugen Jehovas v. Austria, no. 40825/98, decided 31 July 2008.

Kokkinakis v. Greece, no. 14307/88, decided 25 May 1993.

Tsartsidze and Others v. Georgia, no 18766/04, decided 17 January 2017.

Notes

1. See Kaplan (1989) and Botting (1993) for information on Witness jurisprudence in Canada and Manwaring (1962), McAninch (1987), Peters (2000), Zygmunt (1977) and Greenhaw and Koby (2005) for Witness influence on religious freedom and other rights in the United States. See Ringvee (2009) for Witness legal actions in the Baltic region and Richardson (2014) for a review that also includes Witness legal cases in selected European countries.

2. Initially, the enforcement of the European Convention was handled by a Commission which evaluated cases before referring them to the Court. This process was changed in 1998 with the adoption by the CoE of Protocol 11 which reorganised the operation of the ECtHR, deleting the Commission as the mechanism for vetting cases submitted to the Court, enlarging the Court, and also allowing individuals to file cases directly with the Court.

3. This split decision has been much criticised as not addressing the issue of the criminalisation of proselytising directly as well as other grounds. See Evans (2001), Gunn (1996) and Danchin and Foreman (2002).

4. Sadurski (2009) discusses the concept of ‘pilot judgements’ as he argues that the Court is attempting to develop methods of handling the huge load of cases that have been submitted, especially from former Soviet-dominated nations. Note that Sadurski does not treat the Kokkinakis case as a pilot judgement.

  The Court itself is now using this terminology and treats what it calls pilot judgements as something akin to precedents that CoE nations should follow as a way to learn how the Court has ruled on a given matter. For more on pilot judgements, see Haider (2013) and for the Court’s formal statement about pilot judgements, see http://www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf .

5. ‘Friendly settlements’ are achieved when the parties (applicant(s)) and responding government agree on a confidential out of court settlement which is satisfactory to the applicant(s). See http://agent.echr.am/en/functions/representation/friendly-settlements.html for a fuller discussion. ‘Unilateral declarations’ may also resolve a case by virtue of the respondent government publically issuing a declaration acknowledging the violation and undertaking to provide redress to the applicant(s). See

  http://www.echr.coe.int/Documents/Unilateral_declarations_ENG.pdf for a fuller discussion.

6. Sixty-three were declared inadmissible because of non-exhaustion of domestic remedies, with the remaining cases rejected for various other reasons. Fifty-two of those are from Armenia where, after the Bayatyan decision in 2011, the ECtHR ruled that many CO cases had to be refiled in Armenia, with the expectation that the Armenian judicial system should follow that ruling and dismiss the cases or allow alternative service. It is worth noting that the Bayatyan case effectively over-ruled an earlier case from Germany, Grandrath v. Germany (1967), which was one of two cases the Witnesses have lost before the Court.

7. One pending case was filed in 2004 and seven were filed before 2010. Each year since 2009 has seen at least six cases filed, with the most being filed in 2015 (16) and 2011 (15). Only two cases have been filed in 2017, both from Russia.

8. Data presented in this report were gathered from the legal arm of the Watch Tower Bible Study organisation headquartered in New York State. I am very grateful for this assistance.

9. See https://www.jw.org/en/news/releases/by-region/austria/austria-ordered-to-compensate-jehovahs-witnesses/ for more details on the Austrian case history, which was decided on September 25 2012.

10. In some of those cases, however, the ECtHR has supported judgements of the Russian Constitutional Court in favour of minority faiths that the Russian bureaucracy had refused to enforce (Richardson and Shterin 2008).

11. Rule 41 – Order of dealing with cases.

  In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.

12. As already discussed, Greece is a special case because of its statute criminalising proselytising; this applies also to an equally strict statute criminalising blasphemy which, together with the anti-proselytism statute, derives from a 1938 military dictatorship. Greece is also a country where the links between religion and national identity are particularly strong, with the repercussions such links often carry for religious minorities. Also noteworthy is the particular role played by the Witnesses themselves in Greece, given the fact that the first Article 9 case decided by the Court came from Greece and from JWs and that many cases against Greece taken to the Court by Jehovah’s Witnesses followed. All of the above has led to many cases being filed before the ECtHR from Greece, with Greece losing most of them. Because Greece has lost so many cases before the Court, all coming after the fall of the Soviet Union, this pattern gives rise to the suggestion that the Court was using Greece to send a strong message to newer members of the CoE that convention articles concerning religion would now be enforced.

13. One major exception is France, which has attempted to indirectly force several minority faiths, including the Jehovah’s Witnesses, into insolvency using its tax laws. However, three such groups, including Jehovah’s Witnesses, submitted applications to the ECtHR and won their cases (Richardson 2014).

14. See Lykes and Richardson (2014) for details on many such cases involving individual claims of violations of Article 9 from France, most of which involve Muslim applicants.

15. See Kaplan (1989) for a discussion of Jehovah’s Witness long-term but ultimately successful battles over CO in Canada, the United States, Australia and other nations.

16. For an important effort to build on theoretical ideas from the Sociology of Law developed herein, see Mayrl (2017), ‘The Judicialization of Religious Freedom: An Institutionalist Approach.’ Paper presented at the Workshop on Religious Freedom and the Varieties of Religious Establishment, Lichtenberg-Kolleg, University of Goettingen, June.

17. Regrettably, the Constitutional Court in Hungary has been severely weakened since the 1990s and no longer is the dominant political entity in that country (Uitz 2012).

18. See Richardson and Shterin’s (2008) discussion of the support given by the ECtHR to the Russian Constitutional Court decisions concerning minority religions and see Evans’ (2010) discussion of how the ECtHR supported a national court decision concerning the right of a minority religion to gain registration and legal status.

19. For substantive discussions of apparent anti-Islam bias being demonstrated by the ECtHR in its jurisprudence, see Meerschaut and Gutwirth (2008) and the many chapters in Durham et al. (2012).

Additional information

Notes on contributors

James T. Richardson

James T. Richardson, J.D., Ph.D., is Emeritus Foundation Professor of Sociology and Judicial Studies at the University of Nevada, Reno. He taught in and directed the Judicial Studies graduate degree programme for trial judges for 30 years and also was a member of the Interdisciplinary Social Psychology doctoral programme as well as the Sociology Department at the University. He served as president of the Society for the Scientific Study of Religion and of the Association for the Sociology of Religion. His most recent publications include Regulating Religion: Case Studies from around the Globe (Kluwer, 2004), Saints under Siege: The Texas Raid on the Fundamentalist Latter Day Saints (with Stuart Wright, New York University Press, 2011), The Sociology of Shari’a: Case Studies from around the World (with Adam Possamai and Bryan Turner, Springer, 2014) and Legal Cases Involving New Religions and Minority Faiths (with Francois Bellanger, Ashgate, 2014). His major areas of interest recently include how legal and judicial systems deal with religion and how judicial systems manage religion in increasingly pluralistic societies, focusing on the role they play in protecting religious freedom.