Brandon Reece Taylorian is an associate lecturer at the University of Central Lancashire (UK). The following is Part Two of a two-part post.
Introduction
Part One of this two-part post gave an overview of the range of state policies and practices that restrict importations of religious goods and provided an assessment of when customs regulations inappropriately limit FoRB. Part Two, below, focuses on two 2020 European Court of Human Rights (ECtHR) cases involving restrictions on the importation of Jehovah’s Witness literature in Armenia and Azerbaijan, respectively. These cases show how states have applied their import regulations in practice, to the detriment of religious communities. Both cases also illustrate how the ECtHR determines a violation of the European Convention on Human Rights (ECHR) in the specific area of religious import restrictions.
Restrictive Customs Regulations in ECtHR Cases
Two relevant cases involving attempts by religious organizations to import their literature reached the ECtHR in 2020: Religious Community of Jehovah’s Witnesses v. Azerbaijan and Christian Religious Organization of Jehovah’s Witnesses v. Armenia. Although most states mentioned in this post are not under the jurisdiction of the ECtHR, a brief analysis of the two cases highlights the criteria the ECtHR uses when determining what constitutes a violation of the ECHR when states restrict the importation of religious goods. Analyzing the cases also provides two accounts of how states have applied their laws and regulations in practice, which cannot be captured in an overview alone.
The first case was lodged by three representatives of the Jehovah’s Witnesses in Azerbaijan against the government. Since 1999, the Religious Community of Jehovah’s Witnesses had been registered by the Ministry of Justice in Azerbaijan, and from 2002, the community had applied on a regular basis to the State Committee for Work with Religious Associations, as prescribed by law, to request permissions to import religious literature intended for propagation.
The Committee’s responses to these requests were inconsistent, as it had granted permission on one occasion but denied permission on another. In June 2008, the Committee allowed only three of six requested titles to be imported, banning the remaining three because they contained passages hostile to other religions and beliefs. The Jehovah’s Witnesses appealed this decision with the Sabail District Court, then with the Baku Court of Appeal, and finally with the Supreme Court without resolution, leading them to lodge a case with the ECtHR. The Jehovah’s Witnesses claimed a violation of ECHR Articles 9 (FoRB) and 10 (freedom of expression), among others, stating that the persistent refusal of Azerbaijan’s domestic authorities to permit importation of their literature unlawfully interfered with their right to freedom of religion and religious expression.
The ECtHR chose to examine the claims purely under Article 10, read in light of Article 9, and ruled that Article 10 had been violated. The Court agreed the domestic law was vague, failing to define the key elements authorities were to apply when deciding whether to allow the import of religious publications. Ultimately, however, the ECtHR found that domestic courts did not provide “relevant and sufficient” reasons to justify as “necessary” the state’s interference with freedom of expression. In reaching its holding, the Court reiterated the need for religious groups to access literature to exercise their right to manifest religion “through worship, teaching, practice and observance” under Article 9.
The second case, raised by Jehovah’s Witnesses in Armenia, ended less successfully for religious adherents. Armenia is an example of a state that imposes no formal restrictions on importing religious goods, but in practice state and customs officials have been known to discriminate between religious groups. Jehovah’s Witnesses in Armenia claimed that their 2012 shipment of religious materials, including religious books, periodicals, CDs, and DVDs, should not have been subject to value-added tax (VAT), and they challenged how the tax had been calculated.
Armenia’s domestic courts, including the Administrative Court of Appeal and the Court of Cassation, both ruled against the Jehovah’s Witnesses, leading them to lodge a case against Armenia at the ECtHR. The Witnesses claimed a violation of both Article 9 and Article 1 of Protocol 1 (protection of property) under the ECHR. They claimed that state agencies’ refusals to exempt imports of donated religious literature from taxation, and the arbitrary imposition of a grossly inflated customs value on the same import, had breached the Jehovah’s Witnesses’ rights under Article 9. The Witnesses also claimed that Armenian tax authorities refused to apply a tax benefit provided under the country’s Freedom of Conscience and Religious Organizations Act. The Witnesses argued that the state’s arbitrary denial of the tax benefit, along with settlement of the VAT bill, which required the Witnesses to pay a significant amount of its donated funds, meant it could not use funds to further its religious activities. They claimed that this result was the actual intended purpose behind Armenia’s imposing the tax bill.
Under ECtHR case law, the Court acknowledged that “an economic, financial or fiscal measure could, in certain circumstances, constitute an interference with the exercise of rights secured under Article 9 . . . if that measure were found to have had a real and serious impact on a religious community’s ability to pursue its religious activity.” The ECtHR found that, in this case, the impugned measures did not qualify as “a real and serious impact” because Bibles and books were not subject to taxation; the Jehovah’s Witnesses were charged VAT only on periodicals, CDs, and DVDs, which the Court found did not have an impact on their places of worship. In the end, the Court ruled the application inadmissible since the Jehovah’s Witnesses had not claimed that they could not afford to pay the tax bill, only that they could not use tax-bill funds to advance their religious activities. Fundamentally, the Court acknowledged the margin of appreciation of domestic tax authorities to levy VAT on imported shipments, and it reiterated that it would acknowledge an Article 9 violation only if the applicant group can prove a “real and serious” detrimental impact on its right to exercise FoRB.
Conclusion
Overall, customs regulations constitute one branch of a broader state apparatus geared toward restricting religion. Under the legitimate justification of controlling extremist literature or protecting national security, customs regulations are too often used—especially by authoritarian and semi-authoritarian states—to restrict the activities of a religious organization the government does not favor, either because it is not the state religion or has chosen to remain unregistered. Customs regulations contravene FoRB whenever they are applied with bias by officials or inhibit the ability of religious organizations to facilitate their members’ right to engage in “worship, observance, practice or teaching” by denying items necessary to perform those protected activities. The two ECtHR cases analyzed above exemplify how customs regulations are imposed in practice with an impact on religious communities. The analysis also highlights that the Strasbourg Court affords states a sizeable margin of appreciation in limiting imports, and that any complainant must demonstrate the import regulation’s “real and serious impact” on the religious community for a violation to be declared. Finally, this post has revealed how both state registration and state recognition of religions often intersect with how customs regulations on religious goods are devised and applied in practice, resulting in a tendency to disproportionately impact members of minority and new religious movements.