Almost thirty years ago, Peter Edge published The Missionary’s Position After Kokkinakis v Greece: in Ossewaarde, the ECtHR returned to the matter…

Background

In Ossewaarde v Russia [2023] ECHR 225, Mr and Mrs Ossewaarde were US citizens living in Oryol, Russia, on a permanent residence permit. They were Baptists, and since moving to Oryol in 2005 they had regularly invited people to their home for prayer and Bible reading [1-5]. In 2016, the police interrupted a service at their home after they had been sent a letter of complaint by a Ms B complaining about “foreign religious cultists” who had pasted evangelical tracts on the notice board at the entrance of her apartment building [6&7]. Mr Ossewaarde was charged with conducting illegal missionary work as a non-Russian national under Article 5.26(5) of the Code of Administrative Offence [8] and fined 40,000 roubles – about 650 euros [9&10]. He appealed, arguing that he had been exercising his right to freedom of religion in his individual capacity, that he had not been a member of any religious association in Russia and that he could not, therefore, have conducted “missionary work” within the meaning of the Religions Act, which defines it as an activity of a religious association. His appeals against his conviction were rejected [10-12].

The Religions Act (Law no. 125-FZ of 26 September 1997) guarantees freedom of conscience and freedom of religion, including the right to worship any religion, individually or in community with others, to perform services or worship, other religious rites and ceremonies, to teach religion and provide religious education, freely to choose and change, have and spread religious and other beliefs and act in accordance with them, including by means of establishing religious associations ­– and that is extended equally to resident foreign nationals [13&14]. Under s.6(1), a “religious group” operates without State registration and acquisition of legal personality and may include Russian nationals and lawfully resident non-nationals as participants [14&15]. However, the Countering Terrorism and Enhancing Public Security Act (Federal Law no. 374-FZ of 6 July 2016) amended the Religions Act by creating new administrative offences in relation to freedom of conscience and religion and provided that missionary work carried out in breach of the legislation on freedom of conscience and religion may be punishable with a fine of between 5,000 and 50,000 Russian roubles (RUB) – with a higher penalty in the case of foreign nationals [14-21].

Mr Ossewaarde complained that he had been punished in administrative proceedings for organising Bible-reading gatherings, in breach both of Article 9 and of Article 11 ECHR. The Court chose to examine his complaint under Article 9 [29]. It rejected the Government’s objection that he had not exhausted domestic remedies and declared his claim admissible [32].

The arguments 

Mr Ossewaarde argued that in preaching the Baptist faith he had not been acting on behalf of any religious association formed under Russian law and had exercised his right to freedom of religion under the Religions Act as an individual, without establishing a “religious group”. Application of the notion of “missionary work” to individual evangelism had been a novel and unpredictable interpretation of the law which had been applied in his case for the first time. In any event, failure to notify the authorities of the establishment of a religious group had not been an administrative offence at the material time – and even if the failure to notify the authorities had been unlawful, that fact alone had not justified interference with his rights to freedom of religion and assembly. His preaching had not constituted “a corruption or deformation of true evangelism” or any threat to public order. His arrest and conviction had not pursued a “pressing social need” and had not been “necessary in a democratic society” [33].

The Government submitted that the interference had been based on Article 5.26 of the Code of Administrative Offences, as interpreted in the light of the requirements on “missionary work” in the Religions Act. He had distributed tracts including an invitation to study Bible “with us” – in a group. Because the tracts had been signed by “Baptist missionary” Donald Ossewaarde, they had not been invited to an individual sermon by citizen Donald Ossewaarde.

In his application for a residence permit, he had said that he had been a missionary of Baptist International Missions, Inc. and had come to Russia to carry out missionary work, and witnesses had confirmed that they had been attending the Bible readings at his home for two to five years. There had therefore been sufficient evidence of his engagement in missionary work without notifying the competent authority about the establishment of a religious group.

The Government cited the Court’s finding thirty years ago in Kokkinakis v Greece [1993] ECHR 20 (which, incidentally, was the first Article 9 case to come before the ECtHR) that “a State may legitimately consider it necessary to take measures aimed at repressing certain forms of conduct judged incompatible with the respect for the freedom of thought, conscience and religion of others” and argued that the interference had pursued legitimate aims and had been necessary in a democratic society for the protection of public order and the rights of others [34].

The European Association of Jehovah’s Christian Witnesses, a third-party intervener, submitted that the 2016 restrictions on “missionary work” were a particularly severe effect on religions for which door-to-door evangelising was a fundamental tenet [35].

The judgment

The Court held that Mr Ossewaarde’s conviction for failing to comply with the new legal requirements applicable to missionary activities had been a breach of Article 9 [38]. It reiterated that freedom to manifest one’s religion included in principle the right to express one’s religious views by imparting them to others and the right “to try to convince one’s neighbour”, for example through “teaching”, failing which “freedom to change [one’s] religion or belief”, enshrined in Article 9, would be likely to remain a dead letter. Christian evangelism was protected under Article 9 alongside other acts of worship such as the collective study and discussion of religious texts. The Venice Commission had observed that missionary work was a “vital dimension of a religion” [39]. The right to engage in religious persuasion might be legitimately restricted where it involved an element of coercion or violence, but absent coercion or improper pressure, the Court had affirmed the right to engage in individual evangelism and door-to-door preaching [40].

While States were entitled to require registration of religious denominations in a manner compatible with Articles 9 and 11, sanctioning individual members of an unregistered religious entity for praying or otherwise manifesting their religious beliefs was incompatible with the Convention:

“To admit the contrary would amount to the exclusion of minority religious beliefs which are not formally registered with the State and, consequently, would amount to accepting that a State can dictate what a person must believe” [41].

Prior to his disputed conviction, Mr Ossewaarde had been engaged in evangelism for more than ten years and there was no evidence that he had used any improper methods of proselytism or caused anyone to participate in religious meetings against his or her will [42&43]. The Russian Government had not demonstrated that its new restrictions on missionary work in residential premises pursued any “pressing social need” [44&45].

The Court reiterated that the right to freedom of religion, including the freedom to manifest one’s beliefs and to talk to others about them, could not be made conditional on any acts of State approval or administrative registration because of the risk that a State would dictate what a person must believe. Accordingly, the penalty imposed on Mr Ossewaarde had not been “necessary in a democratic society” [46] and there had been a violation of Article 9 [47]. There had also been a violation of Article 14, taken in conjunction with Article 9 [57]. Mr Ossewaarde’s claim that his arrest and detention had not been “in accordance with a procedure prescribed by law” was rejected as being out of time [58&59].