Prohibition of Jehovah’s Witness Religious Books Violates Freedom of Expression

JUDGMENT

Religious Community of Jehovah’s Witnesses v. Azerbaijan 20.02.2020 (no.  52884/09)

see here

SUMMARY

Freedom of thought, religion and expression.

The applicant religious community of Jehovah’s Witnesses in Azerbaijan complained that the state had banned the introduction of specific religious literature on the grounds that religious tensions would be created. The domestic Courts dismissed the appeal irrevocably, holding these books inappropriate for undermining mutual respect between religions.

The Court stresses that intervention in Article 10 on freedom of expression must be considered on the basis of its proportionality in a democratic society and recalls that the national authorities must put forward relevant and sufficient reasons to justify the intervention.

The ECtHR found that the domestic courts did not make a detailed assessment of the ideas presented in the books, nor did they take into account that they were religious ideology, nor did they cite specific facts proving a delicate background at the critical time, such as being in existence.

The ECtHR unanimously ruled that the national courts did not strike a balanced balance and did not provide “relevant and sufficient grounds” for intervention. Violation of freedom of expression (Article 10 ECHR).

PROVISION

Article 10

PRINCIPAL FACTS

The applicant community, the Religious Community of Jehovah’s Witnesses, was registered by the
Ministry of Justice of Azerbaijan on 22 December 1999.

The case concerned an import ban on several Jehovah’s Witnesses texts.

In June 2008 the State Committee for Work with Religious Associations banned the import of some
of the applicant community’s religious literature, arguing that the titles in question contained
passages which were hostile towards other religions and beliefs.

The applicant community, relying on the provisions of the Constitution and the Convention on
freedom of worship and freedom of expression, took the Committee to court to have its decision
declared unlawful and for it to be quashed.

However, the first-instance court upheld the Committee’s ban, basing its conclusions on an expert
report which examined three titles, “Worship the Only True God”, “What Does the Bible Really
Teach?” and “What Is the Purpose of Life?”. The court found that the books’ content undermined
mutual understanding, tolerance and reciprocal respect between communities of various faiths.
Further appeals by the applicant community were dismissed, with the Supreme Court handing down
a final decision in June 2009.

The applicant community complained about the refusal to allow the import of religious literature in
particular under Article 10 (freedom of expression).

THE DECISION OF THE COURT…

The Court notes that, in this case, there may be a serious question as to whether the interference is provided for by law within the meaning of Article 10, in particular because the relevant law does not specify the reasons why religious literature may not be introduced However, the Court considers that the complaints of the applicant community must in principle be examined in terms of the proportionality of the intervention. The Court will therefore leave open the question whether interference with the right of the community to freedom of expression can be regarded as ‘lawful’ within the meaning of Article 10 § 2 of the ECHR.

The Court notes from the outset that the decision not to allow the introduction of the books in question led to a ban on their distribution to the responsible State. The Court recalls in this case that there is a wide margin of appreciation in the Contracting States when regulating freedom of expression in matters which may violate their personal beliefs in the context of religion or incite religious hatred or intolerance. The authorities’ discretion, however, is not unlimited. However, it is for the European Court of Justice to rule definitively on the compatibility of the restriction with the Convention and will do so by assessing, in the specific circumstances, inter alia whether the intervention corresponds to a ‘pressing social need’ and whether it was ‘commensurate with the legitimate aim pursued’. ». Indeed, such oversight may be considered even more necessary given the rather open position of respect for the religious beliefs of others and the dangers of excessive interference with freedom of expression in the form of action against alleged offensive material.

The Court recalls that it is first for the national authorities to make a comprehensive assessment of the disputed observations in this context, setting out relevant and sufficient reasons to justify the intervention and carefully weigh the applicant community’s right to freedom of expression with the protection of the right to expression with the protection of the right of religious people not to be insulted on the grounds of their beliefs.

 In the instant case the Court notes that the first-instance courts judgment was essentially based on the expert report, and the court limited its analysis to summarising the parties submissions, the conclusion of the expert report, and the applicable legal provisions . In particular, it failed to carry out a comprehensive assessment of the impugned remarks by examining them within the general context of the books. On the contrary, it assessed the statements in question when they were detached from their immediate textual context, and failed to examine which ideas they sought to impart. Moreover, the first-instance court did not take into account the fact that they were part of a religious text . The Court, therefore, cannot accept the reasons provided by the first-instance court as relevant and sufficient for the purpose of justifying the interference in question.

Furthermore, although the first-instance court perceived that those expressions were capable of leading to public disturbances, the domestic courts did not refer to any specific circumstances indicative of a sensitive background at the material time – such as the existence of interreligious tensions or an atmosphere of hostility and hatred between religious communities in Azerbaijan – in which the impugned statements might have unleashed violence, given rise to serious interreligious frictions, or led to similar harmful consequences .

Εξάλλου, το πρωτοβάθμιο δικαστήριο δεν ανέφερε ούτε καν την επίδραση της απαγόρευσης στα δικαιώματα της προσφεύγουσας κοινότητας βάσει των άρθρων 9 και 10 της Σύμβασης ή του ισότιμου εσωτερικού δικαίου της και δεν προσπάθησε να εξισορροπήσει το δικαίωμα της κοινότητας στην ελευθερία της έκφρασης και τα δικαιώματα των άλλων ώστε να μην προσβάλλονται οι πεποιθήσεις τους. Αυτό δεν συμβαίνει στην προκειμένη περίπτωση, όπου, εξάλλου, η προηγούμενη πτυχή περιορισμού απαιτεί αυστηρό έλεγχο και όταν προκύπτουν σοβαρά ερωτήματα σχετικά με το αν η επέμβαση προβλέπεται από το νόμο.

Moreover, the first-instance court did not even mention the effect of the ban on the applicant communitys rights under Articles 9 and 10 of the Convention or its domestic-law equivalent , and did not try to balance the applicant communitys right to freedom of expression with the rights of others not to be insulted on the grounds of their beliefs. The Court has, in Article 10 cases, often emphasized its subsidiary role as well as the margin of appreciation which, in a given case, a respondent State enjoys when the balancing exercise has been undertaken by the national authorities with sufficient care. That is not the case here, where, furthermore, the prior restraint aspect requires strict scrutiny and where serious questions arise regarding whether the interference was prescribed by law .

Lastly, the Court takes note that the Baku Court of Appeal and the Supreme Court did not address the deficiencies of the Sabail District Courts decision, resorting instead to summary conclusions that the religious intolerance contained in the books in question was a valid reason to ban them .

Having regard to the above considerations and its case-law on the subject, the Court finds that the domestic courts did not carry out careful balancing exercise in conformity with the criteria laid down in its case-law and did not provide “relevant and sufficient” reasons for the interference.

The Court therefore finds that there has been a violation of Article 10 of the Convention.

Just satisfaction: EUR 3,000 for non-pecuniary damage and EUR 42.56 for costs and expenses


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