In the case of Kasymakhunov and Saybatalov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in two applications
(nos. 26261/05 and 26377/06) against the Russian Federation lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by an Uzbek national, Mr Yusup Salimakhunovich
Kasymakhunov (“the first applicant”), and a Russian national, Mr Marat Temerbulatovich
Saybatalov (“the second applicant”), on 11 July 2005 and 10 June 2006
respectively.
The first applicant was represented by Mr K.
Koroteyev, Ms D. Vedernikova, Ms N. Kravchuk, Mr P. Leach and Mr W.
Bowring, lawyers with the Human Rights Centre “Memorial”, based in Moscow. The second applicant was represented by Mr R. Mukhametov, a lawyer practising in Tyumen. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of
the Russian Federation at the European Court of Human Rights.
The applicants alleged, in particular, that they
had been convicted on the basis of legal provisions that were neither
accessible nor foreseeable in their application. They also complained of a
violation of their freedoms of religion, expression and association and of
discrimination on account of their religious beliefs.
On 11 June 2009 and 17 June 2010 the applications
were communicated to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time (Article 29
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1964 and 1972
respectively. The first applicant’s whereabouts are unknown. The second
applicant lives in Tyumen.
The applicants are members of Hizb ut-Tahrir
al-Islami.
Hizb ut-Tahrir al-Islami (The Party of Islamic
Liberation - hereinafter “Hizb ut-Tahrir”) is an international Islamic
organisation with branches in many parts of the world, including the Middle
East and Europe. It advocates the overthrow of governments and their
replacement by an Islamic State in the form of a recreated Caliphate. Hizb
ut-Tahrir first emerged among Palestinians in Jordan in the early 1950s. It has
achieved a small, but highly committed following in a number of Middle Eastern
states and has also gained in popularity among Muslims in western Europe and Indonesia. It began working in Central Asia in the mid-1990s and has developed a committed following
inside Uzbekistan, and to a lesser extent in neighbouring Kyrgyzstan, Tajikistan and Kazakhstan.
A. Ban on Hizb ut-Tahrir in Russia
On 14 February 2003 the Supreme Court of the Russian Federation found fifteen organisations, including Hizb ut-Tahrir, to be terrorist
organisations and prohibited their activity in the territory of Russia. It held a hearing in camera which was attended by a representative of the Prosecutor
General’s office, but not the organisations’ representatives. The part
concerning Hizb ut-Tahrir reads in its entirety as follows:
“The Party of Islamic Liberation (‘Hizb ut-Tahrir al-Islami’)
is an organisation that pursues the aims of overthrowing non-Islamic
governments and of establishing Islamic rule on an international scale by
reviving a ‘Worldwide Islamic Caliphate’, in the first place in the regions
with a predominantly Muslim population, including Russia and other members of
the Commonwealth of Independent States. Its main methods and activities include
Islamic militant propaganda, combined with intolerance towards other religions,
active recruitment of supporters, and activities aimed at promoting schism and
disunity in society (primarily proselytism with massive financial support). It
is banned in several Middle East and Commonwealth of Independent States
countries (Uzbekistan).”
On 18 June 2003 the Supreme
Court rejected as out of time the appeal submitted by one of the banned
organisations. It found it established, on the basis of the evidence submitted
by the Prosecutor General’s office, that the information about the decision of
14 February 2003 had been published in the mass media in February 2003. The
fact that the organisation had not learned about that decision until 28 April
2003 was irrelevant. There had therefore been no reason to extend the time-limit
for appealing.
On 28 July 2006 a
list of organisations declared to be terrorist organisations by the Russian
courts was for the first time published in the official periodical Rossiyskaya
Gazeta. The list included, among others, the organisations declared to be terrorist
organisations by the Supreme Court’s decision of 14 February 2003, such as Hizb
ut-Tahrir.
B. Criminal proceedings against the first applicant
On 13 February 2004 the first applicant was
arrested. On 25 March 2004 criminal proceedings were instituted against him and
his partner Ms D. They were accused of being members of Hizb ut-Tahrir and
were charged with aiding and abetting terrorism, founding a criminal
organisation and using forged documents, offences under Article 205.1 § 1, Article
210 § 1 and Article 327 § 3 of the Criminal Code.
When questioned by the investigator, the first
applicant admitted to being a member of Hizb ut-Tahrir and living in Russia under a false name and with forged identity documents. According to him, Hizb ut-Tahrir
was a political organisation with a strict hierarchical structure and the aim of
establishing the Caliphate through “velvet revolutions”, first in Muslim lands
and then in other traditionally non-Muslim countries. It did not resort to, or
call for, violence. Its members viewed Islam as a political ideology rather
than a religious belief. The first applicant’s main activity consisted in talking
to people in an attempt to persuade them to join Hizb ut-Tahrir. He distributed
Hizb ut-Tahrir’s literature and explained its ideology. He had succeeded in
recruiting five or six people who formed the Moscow section of Hizb ut-Tahrir
under his leadership. He gave instructions to the members of his section and
was also responsible for maintaining contacts with other local sections of Hizb
ut-Tahrir. He knew that the organisation had been banned in Russia and therefore the members of his section had pseudonyms.
His partner Ms D. gave similar evidence. She
affirmed that Hizb ut-Tahrir was not a terrorist organisation.
The investigator also
obtained statements from several witnesses. The witnesses stated that the first
applicant and Ms D. had attempted to persuade them to become members of Hizb
ut-Tahrir and had supplied them with Hizb ut-Tahrir’s literature. They gave the
leaflets and brochures received from the first applicant to the investigator.
Some of the witnesses testified that the first applicant had urged them to
fight the unfaithful, including with weapons, and they had the impression that
he had called for assistance to Chechen guerrillas. One witness also stated
that the first applicant had advocated the establishment of sharia on the territory of Russia.
The first applicant’s flat was searched and
guidelines on the use of weapons, explosives and poisons were found there.
In September 2004 the case was sent for trial
before the Moscow City Court.
The first applicant pleaded not guilty. He
admitted his membership of Hizb ut-Tahrir al-Islami and confirmed his previous
description of its activities and ideology. He insisted that it was not a
terrorist organisation and that it condemned any use of violence. He repudiated
in part his previous statement, stating that it had been given under pressure,
and denied any attempts to persuade people to join Hizb ut-Tahrir. He further
stated that the guidelines found in his flat had been planted by the police.
The first applicant’s partner Ms D. denied being
a member of Hizb ut-Tahrir and stated that she had not known about its being
banned in Russia.
The trial court then questioned witnesses called
by the prosecution, who confirmed the statements they had given during the
investigation.
Finally, the trial court examined the leaflets
and brochures distributed by the first applicant.
On 11 November 2004 the
Moscow City Court found the first applicant guilty of aiding and abetting
terrorism, founding a criminal organisation and using forged documents (Article
205.1 § 1, Article 210 § 1 and Article 327 § 3 of the Criminal Code). Referring
to the witness testimony, the first applicant’s statements to the investigator
and documentary evidence, the court found it established that the first
applicant, being a member of Hizb ut-Tahrir, had founded a local section of
that organisation and, in the period from 1999 to February 2004, had recruited
new members and distributed the organisation’s literature. The court analysed
the contents of the leaflets and brochures distributed by the first applicant
and found that they proclaimed the superiority of Islam over other religions
and political ideologies, such as communism and capitalism, and advocated
intolerance towards non-Muslims. They also rejected democratic principles as
incompatible with the rules of sharia. They declared war on governments
which were not based on Islam and called for their overthrow, including by
violent methods. They urged members of Hizb ut-Tahrir to take part in the
sacred war (jihad). By stating that jihad was not a defensive war
but a struggle to expand the Islamic State, which had to be carried out even if
the “unfaithful” did not attack Muslims, the documents in question openly
advocated and glorified warfare in the name of Allah. They also stated that
such countries as the United States of America, the United Kingdom, France and Russia were enemy States and that war had to be declared against any State that occupied
Muslim lands. Citizens of the above enemy States should not be allowed to enter
Muslim states and it should be permitted to kill them and take their property
if they were not Muslims. Referring to the contents of the above-mentioned leaflets
and brochures, the contents of the guidelines on the use of weapons, explosives
and poisons found in the first applicant’s flat and the Supreme Court’s
decision of 14 February 2003, the court concluded that the local section of
Hizb ut-Tahrir founded by the first applicant was a terrorist organisation. The
court also found it established that the first applicant had known about the
Supreme Court’s decision of 14 February 2003. His actions had therefore
amounted to incitement to participate in the activities of a terrorist
organisation, punishable under Article 205.1 of the Criminal Code, and to
founding of a criminal organisation, punishable under Article 210 of the Code.
The court sentenced the first applicant to eight
years’ imprisonment.
In his submissions on appeal the first applicant
stated that he had never called for or resorted to violence. Nor had he been involved
in any terrorist activities. His conviction for spreading Islamic ideology had
breached his right to freedom of speech and opinion. He also argued that the
trial court had incorrectly interpreted the religious terminology contained in
Hizb ut-Tahrir’s literature. Given that the trial judge did not have sufficient
knowledge of religious matters, an expert opinion should have been ordered.
Finally, the first applicant submitted that he had had no knowledge of the
decision of the Supreme Court banning Hizb ut-Tahrir as that decision had never
been officially published.
On 13 January 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal.
On 2 May 2007 the Udorskiy
District Court of the Komy Republic decided to bring the applicant’s sentence
into conformity with the recent amendments to Article 205.1 of the Criminal
Code. It found that incitement to participate in the activities of a terrorist
organisation was no longer classified as adding or abetting terrorism in the
new version of Article 205.1 (see paragraph 55 below). The court therefore
decided to set aside the conviction under Article 205.1 and reduce the first
applicant’s sentence to seven years and four months’ imprisonment. On
3 July 2007 the Supreme Court of the Komy Republic upheld that decision on
appeal.
On 10 June 2011 the first applicant finished
serving his sentence. He is now facing extradition proceedings to Uzbekistan, where criminal proceedings are pending against him in relation to his
membership of Hizb ut-Tahrir. On 14 December 2012 he disappeared from Moscow and his current whereabouts are unknown.
C. Criminal proceedings against the second applicant
On 18 June 2004 criminal proceedings were
instituted against the second applicant and eight other persons by the Tyumen regional prosecutor’s office. They were accused of being members of Hizb ut-Tahrir
and charged with aiding and abetting terrorism, an offence under Article 205.1
§ 1 of the Criminal Code, and founding and membership of an extremist
organisation, an offence under Article 282.2 §§ 1 and 2 of the Criminal Code.
When questioned by the investigator, the second applicant
admitted to being a member of Hizb ut-Tahrir and, since the beginning of 2003,
the leader of its local sections in Tyumen and Tobolsk. Their aim was to
establish the Caliphate in the Middle East. He had learned that the organisation
had been banned in Russia in the course of his interview with the police in the
autumn of 2003. The meetings of the local sections had all been held in secret.
He had chaired the meetings, had admitted new members, had distributed Hizb
ut-Tahrir’s literature and had explained its ideology. He had also been
responsible for maintaining contacts with the Moscow section of Hizb ut-Tahrir.
His co-defendants gave similar evidence. They
confirmed the second applicant’s leadership position and his regular contact
with other local sections of Hizb ut-Tahrir in Russia. During their regular and
secret meetings they had read Hizb ut-Tahrir’s literature and discussed its
aims, among which had been recruitment of new members and dissemination of Hizb
ut-Tahrir’s ideology among the population through media publications and
distribution of leaflets. The issues they had discussed during the meetings
were often political rather than religious. Members of the organisation had to
give an oath, pay contributions and obey orders by the leaders. They considered
themselves part of the international organisation Hizb ut-Tahrir al-Islami.
Some of them stated that they knew that the organisation had been banned in Russia.
The investigator also obtained statements from several
witnesses. The witnesses stated that the defendants had attempted to persuade
them to become members of Hizb ut-Tahrir and had supplied them with the
organisation’s literature.
The defendants’ flats were searched and multiple
copies of Hizb ut-Tahrir’s literature and leaflets were found there.
Some of those leaflets criticised the authorities’ decision to ban Hizb
ut-Tahrir and the ensuing arrests and criminal proceedings against its members.
It was also discovered that documents containing Hizb ut-Tahrir’s texts and
information about its activities were stored on the hard disk of the second applicant’s
computer and several floppy disks.
In June 2005 the case was sent for trial before
the Tobolsk Town Court of the Tyumen Region. All defendants, including the second
applicant, repudiated their previous statements, stating that they had been
given under duress, and pleaded not guilty.
They admitted to being followers of Hizb
ut-Tahrir’s ideology but denied being members of the organisation. They had
gathered regularly and openly to read Islamic texts and discuss religious
issues. All the texts had been printed out from the Internet and none of them
had been banned or recognised as extremist. They had never planned or
participated in any terrorist activities, nor had they incited others to commit
terrorist acts. They were opposed to violence and strived to achieve their aim,
namely establishment of the Caliphate, through ideological and political
struggle.
The trial court then questioned witnesses called
by the prosecution. Some of them confirmed the evidence they had given during the
investigation, while the others repudiated their previous statements.
The court also listened
to audio recordings and watched video recordings of the defendants’ meetings.
During the meetings the defendants discussed the ideology and aims of Hizb
ut-Tahrir, its structure and the methods employed by it. The second applicant
and his assistant had been the principal spokesmen. They had instructed the
others that orders should be immediately obeyed and had warned that those who refused
to obey would be punished. They had also explained that the local section’s
main activities were to be proselytism, involvement of new members and
establishment of contacts with high-ranking State officials. During one of the
meetings the defendants had discussed the possibility of obtaining arms and
explosives and committing terrorist acts. During another meeting the second applicant’s
assistant had stated the following:
“‘I am astonished why you have Jews here, why you have so many
of them accumulated?’
‘We have overseers in two towns, I mean our supporters. The
criminal world supports us. Hizb supports us. In our town the [criminals]
support us.’
‘You should have hate, fury... You should be a wolf, you should
attack. You should not be afraid of burying someone in asphalt, when someone is
assaulted you should join in, you should make a contribution to violence. You
should be like that. Jews are foul people, they act in an underhand way. They
will not carry out an attack themselves, they will hire someone. They are sly
and rich, they control the town thanks to their money.’”
The court further examined the contents of the
Internet site maintained by Hizb ut-Tahrir and the literature found in the
defendants’ flats.
Finally, the court examined
expert reports submitted by the prosecutor. A panel composed of experts in
religious, political and linguistic matters examined the literature found
during the search of the defendants’ flats and the audio and video recordings.
The experts concluded that the documents and recordings contained religious and
political propaganda on behalf of Hizb ut-Tahrir. Some of them contained
radical fundamentalist statements accepting and advocating the use of violence
and armed struggle in the form of jihad. Therefore, there were reasons to
consider that Hizb ut-Tahrir’s literature was extremist in nature and
that its dissemination amounted to pro-terrorism propaganda. The documents under
examination advocated the idea that all existing States and governments were
illegitimate as they were not based on Islam and called for their overthrow,
including by violent methods, for the universal Islamisation of mankind and for
the establishment of a “Worldwide Islamic Caliphate”; in other words, they
called for a coup d’état and the forcible taking over of the government
in all countries. The experts noted that although the documents did not
indicate clearly the methods by which the organisation’s aims were to be
achieved and did not openly call for the commission of terrorist acts, they
unambiguously rejected any possibility of the organisation’s participation in
the democratic political process. It followed, in the experts’ opinion, that
its aim of taking over governments could only be achieved through the use of
violence. The documents also contained ideas promoting the superiority of
Muslims over adherents of other religions and consistent calls for
confrontation between Islamic fundamentalists and all others. They were capable
of creating hostility and disunity in society. Finally, the linguistic experts
found that the documents under examination were highly manipulative and capable
of influencing the mind and the will of the reader. They employed professional
manipulation techniques. Thus, they twisted the meanings of some words, for
example interpreting “terrorism” as acts of violence against Muslims only,
while the same acts against adherents of other religions were described as
sacred war against non-believers (jihad).
The trial court questioned one of the experts,
who confirmed his findings. He added that Hizb ut-Tahrir was an extremist
organisation that was intolerant towards other religions. It called for
violence against non-believers, which might be interpreted as incitement to
terrorism.
The experts called by the defence disputed the
above findings. One of the experts, a co-president of the Council of Muftis of
Russia, stated to the court that Hizb ut-Tahrir was not a terrorist
organisation and was not involved in the commission of any terrorist acts. Its
ideology was utopian and unrealistic. Its main activity was Islamic
proselytism. According to its texts, the Caliphate was to be established by
peaceful methods. Another expert also testified that the members of Hizb
ut-Tahrir were not violent and did not present any danger to national security.
On 3 October 2005 the Tobolsk Town Court found
the second applicant and his co-defendants guilty as charged. Referring to the
witness testimony, the defendants’ statements to the investigator, the audio and
video recordings of the defendants’ meetings and the expert opinions, the court
found it established that since the beginning of 2003 the defendants had been
members of Hizb ut-Tahrir. That organisation had been declared to be a
terrorist and extremist organisation and banned by the Supreme Court. Given
that the Supreme Court’s decision had been duly published, that the second
applicant had been informed about its contents in December 2003 in the course
of his interview with the police in connection with a similar criminal case and
that leaflets criticising that decision and the ensuing arrests and criminal
proceedings against members of Hizb ut-Tahrir had been found in the defendants’
flats, the Town Court found it established that the defendants knew about the
Supreme Court’s decision banning Hizb ut-Tahrir. Despite that fact,
they had not stopped their activities as members of Hizb ut-Tahrir and had continued
to hold secret meetings, recruit new members and distribute the organisation’s
literature. The documents distributed by the defendants were extremist as they
advocated violence, rejected the rule of law and encouraged hatred towards
adherents of other religions. Their actions had therefore amounted to founding
and membership of a banned extremist organisation, punishable under
Article 282.2 of the Criminal Code, and to incitement to participate in
the activities of a terrorist organisation, punishable under Article 205.1 of
the Code.
The court sentenced the
second applicant to five years and six months’ imprisonment for the offence
under Article 205.1 and to two years’ imprisonment for the offence under
Article 282.2. The aggregate sentence was fixed at six years’ imprisonment.
In his submissions on appeal the second applicant
stated that he had never committed any terrorist acts or been involved in any
terrorist activities. He and his co-defendants had gathered to read Islamic
literature and to discuss religious issues. His conviction had therefore
violated his rights under Articles 9, 10 and 11 of the Convention.
On 12 January 2006 the Tyumen Regional Court
upheld the conviction on appeal.
D. Reports on Hizb ut-Tahrir
Information on the nature
and activities of Hizb ut-Tahrir is scarce and contradictory. The most
comprehensive report was prepared by the International Crisis Group in 2003.
The report, entitled “Radical Islam in Central Asia: Responding to Hizb
ut-Tahrir”, reads, as far as relevant, as follows:
“Hizb ut-Tahrir is not a religious organisation, but rather a
political party whose ideology is based on Islam. It aims to re-establish the
historical Caliphate in order to bring together all Muslim lands under Islamic
rule and establish a state capable of counterbalancing the West. It rejects
contemporary efforts to establish Islamic states, asserting that Saudi Arabia and Iran do not meet the necessary criteria. According to Hizb ut-Tahrir, the Islamic
state is one in which Islamic law - Sharia - is applied to all walks of
life, and there is no compromise with other forms of legislation.
Hizb ut-Tahrir claims to reject violence as a form of political
struggle, and most of its activities are peaceful. In theory, the group rejects
terrorism, considering the killing of innocents to be against Islamic law.
However, behind this rhetoric, there is some ideological justification for
violence in its literature, and it admits participation in a number of failed
coup attempts in the Middle East. It also has contacts with some groups much
less scrupulous about violence. But despite the allegations of governments,
there is no proof of its involvement in terrorist activities in Central Asia or elsewhere.
Government responses have been contradictory and often
ineffective. In much of the Middle East, the organisation is banned from acting
openly, and many of its members have been imprisoned. Central Asian governments
have taken particularly harsh stances, with Uzbekistan leading the way by
arresting and sentencing thousands of members to long prison terms. In some other
Muslim countries, such as Indonesia, Hizb ut-Tahrir acts more or less openly,
as it does in much of Western Europe ...
The party’s writings elaborate three stages of political
struggle, based on its interpretation of the historical mission of the Prophet
Mohammed in establishing the first Islamic state:
The First: The stage of culturing; this involves finding and
cultivating individuals who are convinced by the thought and method of the
party. This is necessary in order to formulate and establish a group capable of
carrying the party’s ideas.
The Second: The stage of interaction with the Ummah (wider
Muslim community) in order to encourage the Ummah to work for Islam and
to carry the Da’wah (message) as if it was its own, and so that it works
to establish Islam in life, state and society.
The Third: The stage of taking the government and
implementing Islam completely and totally, and carrying its message to the
world.
The first stage is the most important in present party activity
and one of the keys to its longevity. It is based on finding appropriate
members and moulding them to its thinking...
The second stage involves: ‘Collective culturing of the masses
... through organising lessons in the mosques, conferences, lectures, places of
public gathering, newspapers, books and leaflets...’ Hizb ut-Tahrir is very effective at spreading its views through
wide publication of books and leaflets in multiple languages and a network of
well-run websites that provide access to
most of the party’s literature.
Through these two stages of political work, Hizb ut-Tahrir
claims that it can develop mass understanding of its ideas (although not
necessarily mass membership), and most importantly that it can persuade
influential figures in politics, the military and elsewhere to act in
accordance with its program and aims. The party actively attempts to recruit
well-educated members of society, particularly those in positions that allow
them to influence popular opinion.
Getting from this position - wide acceptance of ideas, and some
influence on those who are capable of influencing policy - to establishment of
an Islamic state is the essence of the third stage of political struggle. It is
this stage, the actual seizure of power, and the establishment of the Islamic
state, that is most murky in the literature. In most of its writings Hizb
ut-Tahrir rejects participation in parliamentary democracy, or any alliances
with other political parties to gain power...
There is little doubt about Hizb ut-Tahrir’s disregard for
democracy. It rejects the concept as a Western, anti-Islamic invention and is
not interested in acting as a party within an open political system. A recent
publication claims: ‘Democracy ... is considered a kufr [unbelievers]
system, it is in clear contradiction with the Qu’ran and Sunnah’ ...
It is widely reported that Hizb ut-Tahrir, both in Central Asia and beyond, eschews violence to achieve its ends. Some human rights activists
have argued that it is essentially a peaceful group that operates only in the
realm of ideas and propaganda. It has never been proven to have been involved
in any violence in Central Asia, and in its other global activities it has
generally pursued its aims through peaceful propaganda. It is strongly opposed
to U.S. policy in the Middle East, but does not call for terrorist actions
against America. Indeed, it claims to be opposed to terrorist activity and
asserts that the killing of innocent civilians is against Islamic law. Its literature is straightforward, claiming
that ‘... military struggle is not the method of re-establishing the Khilafah’ ...
Yet the view that Hizb ut-Tahrir is opposed to political
violence per se is mistaken. The situation is much more nuanced than
most researchers allow ... One scholar explains:
‘... in practical terms an-Nabhani argued that a regime
could be brought down through acts of civil disobedience such as strikes,
noncooperation with the authorities or demonstrations, or through a procession
to the palace or presidential residence, provided that the movement enjoys
exclusive control and leadership ... Alternatively, it could be toppled through
a military coup executed by forces that have agreed to hand over power to the
movement.’
However, Hizb ut-Tahrir argues that as a political party it
does not undertake any physical or violent actions. So how can it justify
involvement in a military coup?
‘Hizb ut-Tahrir itself eschews the use of force [but] ...
internal sources argue that groups pledging the party their back-up can use
arms ... if society stands against the regime its removal even by military
force does not constitute an act of violence: this would be the case only if
the party were to kill its opponents to arrive in power, for example.’ ...
What this means in practice is not certain, but it could
clearly be interpreted as seeking military assistance from other groups, should
members be experiencing considerable harm, or in the broadest sense to
establish the Caliphate. In this way, the party remains committed to its
intellectual and political struggle but does not rule out seeking assistance
from other groups, including some that will take military action on its behalf ...
The party’s interpretation of jihad is also somewhat
confused at first glance ... A member in Kazakhstan explained: ‘There are two
types of jihad: the physical and the spiritual. The physical jihad will
come after the establishment of the Caliphate. The spiritual is for now’ ...
Although the main jihad is not expected until the
Caliphate is introduced, this does not mean that Muslims should not fight
defensive wars. Thus, Muslims, Hizb ut-Tahrir members included, are enjoined to
fight against an invader if attacked ...
There is much loose rhetoric about jihad in party
leaflets, which does not always underline these distinctions. And there is
clearly some potential for a defensive jihad to be interpreted in a very
broad fashion. But the main thrust of Hizb ut-Tahrir thinking seems to have
remained intact: the jihad will come when the Caliphate is established ...
Historically, the party’s record provides no evidence of it
being involved in terrorist activity against civilians, or in military actions
against U.S. or Western interests. But there is good evidence of its
involvement in a series of failed coups and attempts to overthrow governments
in the Middle East. Some of the evidence for these incidents is disputed, but
it seems clear that Hizb ut-Tahrir was involved in an attempted coup d’état in Jordan on several occasions in the late 1960s and early 1970s. It was also accused of
involvement in an attack on the military academy in Egypt in 1974, interpreted
by the government as preparation for a coup. Far from denying involvement,
party representatives admit that, ‘It is no secret that Hizb ut-Tahrir has been
involved in a number of failed coup attempts in the Middle East’ ...
Thus while it seems clear that ideologically and practically
Hizb ut-Tahrir cannot be classified as a terrorist group, it is willing to
persuade militaries to overthrow their governments, and in certain cases be
involved in such military coups itself. Should it ever come to power, its
willingness to use violence as an Islamic state would be more certain: it
consistently emphasises that the duty of the Islamic state is to carry out
military campaigns to free Muslim lands from the rule of ‘unbelievers’ and to
wage war against Israel ...”
The report goes on to describe the position of
Hizb ut-Tahrir in western Europe:
“According to the Hizb ut-Tahrir leader in Sweden, Fadi
Abdullatif, the party is growing by actively recruiting second-generation
Muslim immigrants ... The party’s popularity among Muslims in the West has
continued to grow, providing it a strong organisational, and possibly
financial, base.
Germany became the first Western state to ban Hizb ut-Tahrir in
January 2003, citing its anti-Semitic and anti-Israeli propaganda. However, the
German authorities did not provide any evidence of links between it and
terrorist groups. German security forces carried out further raids on known
activists, now working illegally, in May 2003.
In Denmark the party has also garnered support among
immigrants. In March 2003 its leader, Fadi Abdullatif, was convicted of
breaking anti-racism laws, after he handed out leaflets allegedly calling for
Jews to be killed. The group claims the quotes were taken out of context. The
government has apparently considered banning the party, which according to
media reports has about 100 members.
In the UK Hizb ut-Tahrir remains very active, particularly in London and in towns with major Muslim populations such as Birmingham, Bradford and Sheffield. It has been notably successful in recruiting students, although it has been
banned from many university campuses, because of its anti-Semitism, alleged
threatening behaviour towards students of other faiths, and public objections
to homosexuality ...”
Human Rights Watch notes in its 2004 report
“Creating Enemies of the State. Religious Persecution in Uzbekistan”:
“Hizb ut-Tahrir renounces violence as a means to achieve
reestablishment of the Caliphate. However, it does not reject the use of
violence during armed conflicts already under way and in which the group
regards Muslims as struggling against oppressors, such as Palestinian violence
against Israeli occupation. Its literature denounces secularism and
Western-style democracy. Its anti-Semitic and anti-Israel statements have led the government of Germany
to ban it ... Some in the diplomatic community, in particular the U.S. government, consider Hizb ut-Tahrir to be a political organization and therefore argue
that imprisoned Hizb ut-Tahrir members are not victims of religious
persecution. But religion and politics are
inseparable in Hizb ut-Tahrir’s ideology and activities ... Even if one
accepts that there is a political component to Hizb ut-Tahrir’s ideology,
methods, and goals, this does not vitiate the right of that group’s members to
be protected from religion-based persecution ...
Hizb ut-Tahrir’s designation as a nonviolent organization has
been contested. Hizb ut-Tahrir literature does not renounce violence in
armed struggles already under way -in Israel and the Occupied Territories,
Chechnya, and Kashmir - in which it views Muslims as the victims of
persecution. But Hizb ut-Tahrir members have consistently rejected the use of
violence to achieve the aim of reestablishing the Caliphate, which they believe
will only be legitimate if created the same way they believe the Prophet
Muhammad created the original Caliphate, and which can occur only as a result
of gradual ‘awakening’ among Muslims ...”
Another report on Hizb ut-Tahrir’s activities,
entitled “Whether Hizb ut-Tahrir is an extremist organisation?”, was
published on 20 October 2005 by SOVA Centre for Information and Analysis, a
Russian non-governmental organisation. The report states, in particular,
that following the Supreme Court’s decision of 14 February 2003 banning
Hizb ut-Tahrir, many of its members were charged with aiding and abetting
terrorism, membership of a criminal organisation, membership of an extremist
organisation or unlawful possession of arms. The first applicant was the first
to be convicted at final instance. Many other convictions followed thereafter.
The report further states that the analysis of
Hizb ut-Tahrir’s literature reveals that that organisation openly and
unequivocally rejects democratic principles and political freedoms, such as
freedom of religion and freedom of thought, declaring that they are contrary to
Islam. Moreover, the literature declares that it is justified to use violence
to fight democracy. However, it affirms that such violence will be used only
after the establishment of the Caliphate and the commencement of jihad.
Although there are two commonly accepted meanings of this term in Islam,
Hizb ut-Tahrir’s literature almost always means holy war when
speaking of jihad. Many countries, such as Israel and the United States of America, are declared to be enemy States which should be fought against already,
including by violent methods. Hizb ut-Tahrir, however, does not directly call
upon its members to participate in that fight. Hizb ut-Tahrir expresses its
support to Chechen separatists, even though it condemns terrorist acts against
the civil population committed on Russian territory, at the same time denying
the possibility of involvement of Chechen separatists in such acts. It should
be also noted that Hizb ut-Tahrir does not use the term “terrorism” in its
common meaning, considering any violent acts against enemy States, including
those that would be normally classified as terrorist acts, to constitute part
of holy war. The report cites Hizb ut-Tahrir’s document entitled “The Islamic
rule on hijacking aeroplanes”, which states that it is justified to hijack
civil aeroplanes of enemy States and kill their passengers because the citizens
of such States and their property constitute legitimate war targets. That
document was deleted from Hizb ut-Tahrir’s website several years ago, but no
statements disavowing its contents have ever been made by the organisation’s
leadership, which gives cause to believe that it has been deleted for the
purposes of secrecy. As regards the means for the establishment of the
Caliphate, Hizb ut-Tahrir’s literature is not clear on this point. It is
certain that the organisation rejects the possibility of participation in
parliamentary elections or any other democratic process in order to come to
power. There remains the possibility of a coup d’état committed by more
or less violent methods. The Caliphate must, however, first be established on
traditionally Muslim territories, which do not include Russia. Accordingly, the report concludes that Hizb ut-Tahrir is not planning any coup d’état
in Russia and its activities there are limited to proselytism.
Finally, the report notes that some of Hizb
ut-Tahrir’s documents, including those that can still be found on the
organisation’s Russian website, contain anti-Semitic propaganda, glorification
of suicide bombers in Israel and calls for violence against Jews and for the destruction
of Israel. It thus concludes that Hizb ut-Tahrir is an extremist organisation
stirring anti-Semitic hatred and advocating violence. The report recommends, however,
that the Supreme Court’s decision banning Hizb ut-Tahrir should be annulled and
that prosecution of individuals on the mere ground of their membership of that
organisation should be stopped. It considers it advisable that only those of the
organisation’s members who have made statements advocating hatred or violence
should face criminal or other proceedings.
A report entitled “Hizb ut
Tahrir al Islami (Islamic Party of Liberation)”, published on 15 April 2007 by the
European research project Transnational Terrorism, Security, and the Rule of
Law (TTSRL), financed by the European Commission, reads as follows:
“Hizb ut Tahrir al Islami (Islamic Party of Liberation)
presents itself as ‘a political party whose ideology is Islam, so politics is
its work and Islam is its ideology ...’ ... In their own eyes, Hizb ut Tahrir
(for short) is a political group and not a priestly one ... It is a
trans-national party or movement that claims to try to achieve its political
goals without the use of violence and has branches in about forty countries,
including both Islamic and Western countries. In the Islamic world they are,
for instance, active not only in the Middle East, but also in Bangladesh, Malaysia, Indonesia, and the former Soviet republics in Central Asia. In almost all of
these countries, Hizb ut Tahrir is perceived as a threat to the state or even
as a terrorist organisation. In the Western world, Hizb ut Tahrir has a
presence in, among others, the United Kingdom, the Netherlands, Germany, Australia, the United States and Canada. To these countries, Hizb ut Tahrir presents a
particularly difficult challenge since it holds radical Islamist views, but
openly only advocates peaceful change. Nonetheless, in a number of EU member
states, the party is regarded as one that secretly does support the idea of a
violent jihad and/or has been involved in anti-Semitic incidents ...
The organizational structure of Hizb ut Tahrir is rather
complex ... The identities of Hizb ut Tahrir’s current leader and senior
officers have not been mentioned in reliable open sources.
Concrete issues at the level of different national branches are
in the hands of national leaders, where the scope and content of the activities
within the branches greatly differ. A general distinction can be made between
countries in which the party is permitted to operate freely, and countries in
which Hizb ut Tahrir is prosecuted. In Uzbekistan, for instance, [Hizb ut
Tahrir] is organized in a secretive and hierarchical pyramid structure made up
of many five-person cells whose members, after they have completed training
averaging about two months, form their own groups or ‘halka’ - also of five to
six members. Other sources speak of three-person cells... In EU member states,
the branches of Hizb ut Tahrir are organized like most political parties and
have a hierarchical structure with a national leader, local groups and the
possibility of membership for anyone who supports the party’s ideas. In
addition, the European branches of the party also consist of study groups, the
above-mentioned ‘halkas.’...
From the beginning, Hizb ut Tahrir’s leadership decreed that
members should not participate in terrorist activities. This message has been
continuously reverberated. There are, however, many allegations of links
between the party and terrorist organisations. It should be stressed that none
of these allegations are backed by concrete evidence ...
There are, nonetheless, possible indirect links between Hizb ut
Tahrir and terrorist groups and individuals. In Britain, three men, who in 1995
were arrested and charged with conspiring to assassinate the Israeli
ambassador, were reported to have been in possession of Hizb ut Tahrir
literature and to have helped organize Hizb ut Tahrir meetings in Manchester ...
Another man, Muhammad Babar - who is linked to the seven men currently on trial
in London on charges of planning terrorist attacks between January 2003 and
April 2004 - has stated that he became a member of Hizb ut Tahrir and
another radical group, Al Muhajiroun, while at the university, when he became
angered by the Gulf War ... In the above mentioned cases, as well as in most
cases, those behind the allegations only point at involvement in Hizb ut Tahrir
activities while studying, the possession of Hizb ut Tahrir materials, and
other rather indirect relations between suspects of terrorism and the party.
More serious are the allegations that connect the party to the other radical
group mentioned above, Al-Muhajiroun, established in 1995 as a splinter
group that broke off from Hizb ut-Tahrir. According to leader Omar
Bakri Muhammad, the two groups initially split because Hizb ut Tahrir was ‘too
soft’ ... His group has been accused of recruiting young Muslims in Britain to
fight abroad in places such as Kashmir, Afghanistan and Chechnya ...
Despite the above-mentioned allegations, authorities in the EU
have not yet formally accused Hizb ut Tahrir for having links with terrorist
organisations. In addition, there are no official reports that members have
joined or become involved in the global jihad movement. However, it should be
noted that some counties do see the organisation as a possible or potential
threat to democracy and the rule of law ...
Unlike more traditional Islamic parties, Hizb ut Tahrir refuses
to be involved in local politics, making it impossible for regional leaders to
co-opt the group. Although Hizb ut Tahrir describes itself as a political
party, it does not want to participate in elections or want to be part of
coalition governments ... The process towards the utopian Islamic Caliphate is
viewed more as a social or intellectual process rather than a political one.
For the above-mentioned intellectual struggle and intellectual
transformation, Hizb ut Tahrir focuses primarily on highly educated
Muslims. The method is the so-called Islamic da’wah through which society
can be transformed into an Islamic one. Within the EU, the concrete translation
of this concept is distributing leaflets at universities and near mosques, or
to organise meetings on current political and social issues, such as the
situation in Iraq, the cartoon issue in Denmark and Guantanamo Bay ... Although
the method of da’wah seems very theoretical and impractical in relation to the
stated goal, it cannot be denied that the party has managed to attract tens of
thousands of Muslims in Europe who believe in its method ...
As mentioned above, Hizb ut Tahrir has branches in some forty
countries, in a number of which the party is considered a terrorist
organisation. Within the EU, where religiously inspired political parties enjoy
relatively greater freedom than they do anywhere else, only Germany has outlawed Hizb ut Tahrir ...
... [Many] questions remain open with regard to the nature of
this party and its impact on society and how to deal with its spreading of
anti-Semitic, anti-Western and non-democratic ideas and sentiments ...
A case-study on an organisation such as Hizb ut Tahrir as part
of an overall large research project on counter-terrorism might suggest
prematurely that Hizb ut-Tahrir falls in the category of labelled terrorist
organisations, or at least belongs to a group of organisations that pose a
serious threat to our democratic society. However, such qualifications cannot
be given to Hizb ut-Tahrir without serious reservations. The question can even
be raised whether such qualification is fit for this organisation at all. Although,
in its philosophy Hizb ut-Tahrir has anti-democratic tendencies, it also
rejects the idea of violent jihad to achieve their goal of a caliphate. Most
allegations on the terrorist connection of the organisation or some of its
members point at rather indirect links, are not based on solid sources, or
should by their numbers be assessed as mere coincidences.
On the other hand, experience shows that organisations such as
Hizb ut-Tahrir are ‘very smart in walking the very fine line between propaganda
and incitement to terrorism’, according to Paul Wilkinson, director of the
Centre for the Study of Terrorism and Political Violence at the University of
St Andrews ... However, outlawing this organisation without a proper cause
might have the opposite effect. It is therefore important to monitor with
prudence and to act on facts instead of allegations.”
E. Hizb ut-Tahrir’s literature
Hizb ut-Tahrir’s aims
and principles, as well as the details of what an Islamic state would look
like, are outlined in a range of literature produced by the organisation. In
particular, it has prepared a Draft Constitution which sketches the major
provisions of an Islamic State (wording as in the original):
1. Basic principles and government structure
Article 1
“The Islamic ‘Aqeedah [creed] constitutes the foundation
of the State. Nothing is permitted to exist in the government’s structure,
accountability, or any other aspect connected with the government, that does
not take the ‘Aqeedah as its source. The ‘Aqeedah is also the
source for the State’s constitution and Sharia canons. Nothing connected
to the constitution or canons is permitted to exist unless it emanates from the
Islamic ‘Aqeedah.”
Article 7
“The State implements the aHkaam Sharia [divine rules] on
all citizens who hold citizenship of the Islamic State, whether Muslims or not,
in the following manner:
a. The aHkaam Sharia is implemented in its
entirety, without exception, on all Muslims.
b. Non-Muslims are allowed to follow their own
beliefs and worships.
c. Those who are guilty of apostasy (murtadd)
from Islam are to be executed according to the rule of apostasy, provided they
have by themselves renounced Islam. If they are born as non-Muslims, i.e., if
they are the sons of apostates, then they are treated as non-Muslims according
to their status as being either polytheists (mushriks) or People of the
Book.
d. In matters of food and clothing the non-Muslims
are treated according to their religions within the limits allowed by aHkaam
Sharia.
e. Marital affairs (including divorce) among
non-Muslims are settled in accordance with their religions, but between
non-Muslims and Muslims they are settled according to the aHkaam Sharia.
f. All the remaining Sharia matters and
rules, such as: the application of transactions, punishments and evidences (at
court), the system of ruling and economics are implemented by the State upon
everyone, Muslim and non-Muslim alike. This includes the people of treaties (mu’aahid),
the protected subjects (ahludh dhimmah) and all who submit to the
authority of Islam. The implementation on these people is the same as the
implementation on the subjects of the State. Ambassadors and envoys enjoy
diplomatic immunity.”
Article 19
“No one is permitted to take charge of ruling, or any action
considered to be of the nature of ruling, except a male who is free (Hurr),
i.e. not a slave, mature (baaligh), sane (‘aaqil), trustworthy (‘adl),
competent; and he must [be a Muslim].”
Article 21
“Muslims are entitled to establish political parties to
question the rulers and to access the positions of ruling through the Ummah
[Muslim community] on condition that the parties are based on the ‘Aqeedah
of Islam and their adopted rules are aHkaam Sharia [divine rules];
the establishment of such a party does not require a license by the State. Any
party not established on the basis of Islam is prohibited.”
Article 24
“The Khaleefah is deputised by the Ummah with
authority to implement the Sharia.”
Article 26
“Every mature male and female Muslim, who is sane, has the
right to participate in the election of the Khaleefah and in giving him
the pledge (ba’iah). Non-Muslims have no right in this regard.”
Article 31
“There are seven conditions needed in the Khaleefah...
They are to be a male, Muslim, free (Hurr), mature (baaligh),
sane (‘aaqil), trustworthy (‘adl) and able (qaadir).”
The Draft Constitution further indicates that all
highest Government officials, the chief judge and the judges of the Court of
the Unjust Acts (the court which settles disputes between the citizens and the
State) must be male and Muslims. Muslim women are allowed to become lower-level
officials and judges (Articles 42, 49, 67, 69, 87). Non-Muslims may be
appointed only to technical and administrative official positions
(Article 97).
The Draft Constitution further continues:
Article 101
“The members of the Majlis al-Ummah [people’s assembly] are
those people who represent the Muslims in respect of expressing their views to
the Khaleefah when consulted. Non-Muslims are allowed to be members of
the Majlis al-Ummah so that they can voice their complaints in respect
to unjust acts performed by the rulers or the misapplication of the Islamic
laws.”
Article 102
“The members of the Majlis al-Ummah are elected by the
people.”
Article 104
“Consultation (Shoora) and the mashoora are the
seeking of views in absolute terms. These views are not binding in legislation,
definitions, intellectual matters such as discovering the facts and the
technical and scientific matters. However they are binding when the Khaleefah
consults in other practical matters and actions that do not need scrutiny or
research.”
Article 105
“All citizens, Muslim or not, may express their views, but Shoora
is a right for the Muslims only.”
2. Jihad and the army
Article 56
“Jihad is a compulsory duty (farD) on all
Muslims. Military training is therefore compulsory. Thus, every male Muslim,
fifteen years and over, is obliged to undergo military training in readiness
for jihad...”
3. Legal status of women
Article 109
“Segregation of the sexes is fundamental, they should not meet
together except for a need that the Sharia allows or for a purpose the Sharia
allows men and women to meet for, such as trading or pilgrimage (Hajj).”
Article 110
“Women have the same rights and obligations as men, except for
those specified by the Sharia evidences to be for him or her. Thus, she
has the right to practice in trading, farming, and industry; to partake in
contracts and transactions; to possess all form of property; to invest her
funds by herself (or by others); and to conduct all of life’s affairs by her.”
Article 111
“A woman can participate in elections ... and elect, and be a
member of the Majlis al-Ummah, and can be appointed as an official
of the State in a non-ruling position.”
Article 113
“Women live within a public and private life. Within their
public life, they are allowed to live with other women, maHram males
[males forbidden to them in marriage] and foreign men (whom they can marry) on
condition that nothing of the women’s body is revealed, apart from her face and
hands, and that the clothing is not revealing nor her charms displayed. Within
the private life she is not allowed to live except with women or her maHram
males and she is not allowed to live together with foreign men. In both cases
she has to restrict herself with the rules of Sharia.”
Article 118
“The custody of children is both a right and duty of the
mother, whether Muslim or not, so long as the child is in need of this care.
When children, girls or boys, are no longer in need of care, they are to choose
which parent they wish to live with, whether the child is male or female. If
only one of the parents is Muslim, there is no choice for the child is to join
the Muslim parent.”
4. Taxes
Article 139
“Zakaah [property tax] is collected from Muslims on
their properties...”
Article 140
“Jizyah (head-tax) is collected from the non-Muslims (dhimmis).
It is to be taken from the mature men if they are financially capable of paying
it. It is not taken from women or children.”
5. Education
Article 165
“The Islamic creed constitutes the basis upon which the
education policy is built. The syllabi and methods of teaching are designed to
prevent a departure from this basis.”
Article 166
“The purpose of education is to form the Islamic personality in
thought and behaviour. Therefore, all subjects in the curriculum must be chosen
on this basis.”
Article 170
“Arts and crafts may be related to science, such as commerce,
navigation and agriculture. In such cases, they are studied without restriction
or conditions. Sometimes, however, arts and crafts are connected to culture and
influenced by a particular viewpoint of life, such as painting and sculpting.
If this viewpoint of life contradicts the Islamic viewpoint of life, these arts
and crafts are not taken.”
Article 172
“The state’s curriculum is only one, and no curriculum other
than that of the state is allowed to be taught. Private schools provided they
are not foreign, are allowed as long as they adopt the state’s curriculum and
establish themselves on the State’s educational policy and accomplish the goal
of education set by the State. Teaching in such schools should not be mixed
between males and females, whether the students or the teachers; and they
should not be specific for certain deen [religion], madhab [schools
of Muslim law], race or colour.”
6. Relations with other States
Article 177
“It is absolutely forbidden for any individual, party, group or
association to have relations with a foreign state...”
Article 184
“The state’s relations with other states are built upon four
considerations. These are:
...
3. States with whom we do not have treaties, the actual
imperialist states, like Britain, America and France and those states that have
designs on the State, like Russia, are considered to be potentially belligerent
states. All precautions must be taken towards them and it would be wrong to
establish diplomatic relations with them. Their subjects may enter the Islamic
State only with a passport and a visa specific to every individual and for
every visit, unless it became a real belligerent country.
4. With states that are actually belligerent states, like Israel, a state of war must be taken as the basis for all measures and dealings with them.
They must be dealt with as if a real war existed between us - whether an
armistice exists or not - and all their subjects are prevented from entering
the State.”
Article 186
“The State is forbidden to belong to any organisation that is
based on something other than Islam or which applies non-Islamic rules. This
includes international organisations like the United Nations, the International
Court of Justice, the International Monetary Fund and the World Bank, and
regional organisations like the Arab League.”
II. RELEVANT DOMESTIC LAW
A. The Criminal Code
Article 205 § 1 of the Criminal Code of the Russian Federation (as in force at the material time) provides as follows:
“Terrorism, that is an explosion, arson or other acts creating
a danger of loss of human life, substantial material damage or other socially
dangerous consequences, provided that such acts were committed for the purposes
of undermining national security, frightening the population or influencing the
authorities in order to make them adopt decisions favourable to terrorists, as
well as threats to commit the above-mentioned acts, is punishable by eight to
twelve years’ imprisonment.”
Article 205.1 of the Code (as
in force at the material time) reads, in so far as
relevant, as follows:
“1. Aiding and abetting terrorism, that is incitement of a
person to commit an offence under Articles 205 [terrorism], 206 [taking of
hostages], 208 [organisation or membership of an armed criminal group], 211 [hijacking
of an aeroplane, a ship or a train], 277 [attacking of a State official] or 360
[attacking of a person or an institution under international protection] of the
Criminal Code; incitement of a person to participate in the activities of a
terrorist organisation; training or arming of a person with the aim of
committing one of the above-mentioned offences; or financing of terrorism, is
punishable by four to eight years’ imprisonment ...”
On 27 July 2006 that Article was amended. In particular,
incitement to participate in the activities of a terrorist organisation was no
longer classified as adding and abetting terrorism punishable under Article
205.1.
Article 210 of the Code reads,
in so far as relevant, as follows:
“1. The founding of a criminal group (criminal
organisation) for committing serious and especially serious offences, as well
as the leadership of such group or one of its sections ... is punishable by
seven to fifteen years’ imprisonment ...”
Article 15 of the
Code provides that serious offences are premeditated offences for which the Criminal
Code prescribes a maximum penalty of between five and ten years’ imprisonment.
Especially serious offences are premeditated offences for which the Code prescribes
a maximum penalty of more than ten years’ imprisonment or a heavier penalty.
Article 282.2 of the
Code reads as follows:
“1. The founding of a non-profit, religious or other
organisation which has been dissolved or banned by a final judicial decision on
the ground of its extremist activities is punishable by a fine ..., four to six
months’ detention or up to three years’ imprisonment.
2. Membership of a non-profit, religious or other
organisation which has been dissolved or banned by a final judicial decision on
the ground of its extremist activities is punishable by a fine ..., up to four
months’ detention or up to two years’ imprisonment.”
Article 327 § 3 of the Code provides that the
use of official documents known to be forged is punishable by a fine,
correctional labour, or three to six months’ detention.
B. Anti-Terrorism Act
The Anti-Terrorism Act
(Federal Law no. 130-FZ of 25 July 1998, as in force at the material time) defined
terrorism as violence or the threat of violence directed against persons or
organisations, as well as destruction or the threat of destruction of property
or other physical objects, provided that such acts created a danger of loss of
human life, substantial material damage or other socially dangerous
consequences and that they were committed for the purposes of undermining national
security, frightening the population, influencing the authorities in order to
make them adopt decisions favourable to terrorists or satisfying their
illegitimate pecuniary or other interests; an attempt on the life of a State or
public official committed for the purposes of stopping his or her public or
political activities or in revenge for such activities; an attack on a
representative of a foreign State or a staff member of an international
organisation enjoying international protection or on official buildings or means
of transport of persons enjoying international protection, provided that such acts
were committed with the purpose of provoking war or worsening international
relations (section 3 § 1).
Terrorist activities
include the following activities:
- organisation, planning, preparation and commission
of terrorist acts;
- incitement to commit terrorist acts, violence
against persons or organisations or destruction of physical objects for
terrorist purposes;
- creation of an illegal armed group, criminal group
(organisation) or organised group for the commission of terrorist acts, as well
as involvement in such acts;
- recruitment, arming and training of terrorists;
- financing of an organisation or group known to be terrorist
or any assistance to them (section 3 § 2).
A terrorist
organisation is an organisation created with the aim of carrying out terrorist
activities or admitting the possibility of recourse to terrorism as part of its
activities (section 3 § 8).
An organisation may be declared a terrorist organisation
and dissolved by a judicial decision at the request of a prosecutor (section
25).
On 6 March 2006 a new
Anti-Terrorism Act (Federal Law no. 35-FZ) was passed to replace the
1998 Anti-Terrorism Act. The 2006 Anti-Terrorism Act provides that a list of
organisations which have been declared terrorist by a Russian court is to be
kept by the federal security services. That list must be published in the official
periodical press, as determined by the Government (section 24 § 5). Pursuant to Government Decree no. 1014-p of 14 July 2006,
the list of organisations which have been declared to be terrorist organisations
by a Russian court is to be published in the official periodical Rossiyskaya
Gazeta.
C. Suppression of Extremism Act
The Suppression of Extremism
Act (Federal Law no. 114-FZ of 25 July 2002, as in force at the material time),
which was recently examined by the Venice Commission (see Opinion on the
Federal Law on Combating Extremist Activity of the Russian Federation, adopted
by the Venice Commission at its 91st Plenary Session (Venice, 15-16
June 2012)), defines extremist activities as activities of non-profit,
religious or other organisations, the media or individuals consisting in
planning, directing, preparing or committing acts aimed at:
- forcible change of the constitutional foundations
of the Russian Federation and breach of its territorial integrity;
- undermining the national security of the Russian
Federation;
- taking over or usurpation of power;
- founding of armed criminal groups;
- carrying out of terrorist activities;
- encouraging racial, ethnic, religious or social
hatred accompanied by violence or calls for violence;
- creation of mass disorder, commission of
disorderly acts or acts of vandalism out of ideological, political, racial,
ethnic or religious hatred or enmity, or out of hatred or enmity towards a
social group;
- propaganda promoting the exceptionality,
superiority or inferiority of citizens on the ground of their religion, social
position, race, ethnic origin or language;
- propaganda and public display of Nazi attributes
or symbols, or attributes or symbols which are similar to Nazi attributes or
symbols to the point of becoming undistinguishable;
- public appeals to carry
out the above-mentioned activities or to commit the above-mentioned acts, as
well as financing of the above-mentioned activities or the assistance of their
performance by other means, including by providing financial support or technical
facilities, information services or other facilities (section 1§ 1).
The Suppression of Extremism Act further defines
an extremist organisation as a non-profit,
religious or other organisation which has been dissolved or banned by a final
judicial decision on the ground of its extremist activities as defined by the
Act (section 1 § 2).
It is prohibited to publish and distribute
extremist material - that is, printed, audio, video or other material meeting
at least one of the criteria defined in section 1 § 1. Such material includes official
material of banned extremist organisations (section 13).
THE LAW
I. JOINDER OF THE APPLICATIONS
The Court notes at the outset that both
applicants complained that the law provisions which had served as a basis for
their convictions were not foreseeable in their application, taking into
account that the judgment of the Supreme Court banning Hizb ut-Tahrir had not
been officially published at the time when the acts attributed to them had been
committed. They also complained that their convictions for the membership of
Hizb ut-Tahrir had violated their freedoms of religion, expression and
association. Finally, they both complained of discrimination on account of
their religious beliefs. Having regard to the similarity of the applicants’
grievances, the Court is of the view that, in the interests of the proper
administration of justice, the applications should be joined in accordance with
Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE
CONVENTION
The applicants complained that the Supreme Court’s
decision banning Hizb ut-Tahrir had not been officially published. The law
provisions which had served as a basis for their convictions were therefore not
foreseeable in their application, contrary to the requirements of Article 7 of
the Convention. That Article reads as follows:
“1. No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the
time the criminal offence was committed.
2. This article shall not prejudice the trial and
punishment of any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law recognised
by civilised nations.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
The Government conceded that the Supreme Court’s
decision of 14 February 2003 had not been officially published prior to
the applicants’ conviction. That was because at the material time Russian law
had not established a publication procedure or any procedure for keeping an
official list of banned terrorist organisations. It was not until March 2006
that such a procedure had been provided for by law (see paragraph 64 above) and not until July 2006 that the official list of banned terrorist organisations
had been published (see paragraph 10 above). However, the information about the
banning of Hizb ut-Tahrir and other organisations had been divulged on 14 and
15 February 2003 by many traditional and Internet media outlets. Referring to
the Supreme Court’s decision of 18 June 2003 (see paragraph 9 above), the
Government argued that as a result of those publications, society had been sufficiently
informed about the banning of Hizb ut-Tahrir.
The Government further referred to the legal
principle “ignorance of the law is no excuse” and submitted that, in any event,
the domestic courts had established that the applicants had known about the
banning of Hizb ut-Tahrir. Indeed, the applicants, their co-defendants and
witnesses had admitted to knowing that the organisation had been banned when
questioned by the investigator. Moreover, leaflets criticising the decision to
ban Hizb ut-Tahrir had been found in the second applicant’s flat. Accordingly,
the applicants had possessed information about the Supreme Court’s decision of
14 February 2003 and could therefore have foreseen that their membership of Hizb
ut-Tahrir was criminally punishable under Articles 205.1, 210 and 282.2 of
the Criminal Code.
The first applicant submitted that the Supreme
Court’s decision of 14 February 2003 had been an essential element in
establishing his guilt under Articles 205.1 and 210 of the Criminal Code. In
particular, the domestic courts had based their finding that Hizb ut-Tahrir was
a “criminal organisation” within the meaning of Article 210 on the Supreme
Court’s decision of 14 February 2003 by which Hizb ut-Tahrir had been
declared a terrorist organisation. The fact that his conviction under Article
205.1 had later been set aside following an amendment to the Criminal Code (see
paragraph 25 above) had not deprived him of victim status because there had
been no acknowledgment of a violation of his rights. In any event, his
conviction under Article 210 of the Criminal Code - which, as argued above, had
been essentially based on the Supreme Court’s decision of 14 February 2003
- still stood.
The first applicant further submitted that the
Supreme Court’s decision of 14 February 2003, taken in camera and
in the absence of the organisation’s representatives, had never been officially
published, as acknowledged by the Government. The reference to that decision in
the media could not compensate for the absence of an official publication.
Firstly, the media had not published the full text of the decision or at least
its operative part or a summary of its reasoning. Secondly, the press articles
referred to by the Government had been published immediately after the decision
had been adopted and before it had become final. Some publications had
mentioned that the decision was still amenable to appeal. No mention of the
decision’s entry into force had been made in the media. The first applicant could
not therefore have learned from the media reporting whether the Supreme Court’s
decision was enforceable and, accordingly, whether Hizb ut-Tahrir had indeed been
officially banned by a final judicial decision.
The second applicant maintained his claims.
2. The
Court’s assessment
(a) General principles
. The
guarantee enshrined in Article 7, which is an essential element of the rule of
law, occupies a prominent place in the Convention system of protection, as is
underlined by the fact that no derogation from it is permissible under Article
15 of the Convention in time of war or other public emergency. It should be
construed and applied, as follows from its object and purpose, in such a way as
to provide effective safeguards against arbitrary prosecution, conviction and
punishment (see Scoppola v. Italy (no. 2) [GC], no.
10249/03, § 92, 17 September 2009).
. Article
7 § 1 of the Convention goes beyond prohibition of the retrospective
application of criminal law to the detriment of the accused. It also sets
forth, more generally, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena
sine lege). While it prohibits in particular
extending the scope of existing offences to acts which previously were not
criminal offences, it also lays down the principle that the criminal law must
not be extensively construed to an accused’s detriment, for instance by
analogy. It follows that offences and the relevant penalties must be clearly
defined by law. This requirement is satisfied where the individual can know
from the wording of the relevant provision and, if need be, with the assistance
of the courts’ interpretation of it, what acts and omissions will make him
criminally liable. When speaking of “law”
Article 7 alludes to the very same concept as that to which the Convention
refers elsewhere when using that term, a concept which comprises statute law as
well as case-law and implies qualitative requirements, including those of accessibility
and foreseeability (see Cantoni v. France, 15 November 1996,
§ 29, Reports of Judgments and Decisions 1996-V; Coëme and
Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and
33210/96, § 145, ECHR 2000-VII; and Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, §§ 107 and 108, 20 January 2009).
As a consequence of the
principle that laws must be of general application, the wording of statutes is
not always precise. One of the standard techniques of regulation by rules is to
use general categorisations as opposed to exhaustive lists. That means that
many laws are inevitably couched in terms which, to a greater or lesser extent
are vague, and their interpretation and application depend on practice.
Consequently, in any system of law, however clearly drafted a legal provision
may be, including a criminal
law provision, there is an inevitable element of judicial interpretation. There
will always be a need for elucidation of doubtful points and for adaptation to
changing circumstances. Again, whilst certainty is highly desirable, it may
bring in its train excessive rigidity and the law must be able to keep pace
with changing circumstances. Accordingly, Article 7 of the Convention cannot be
read as outlawing the gradual clarification of the rules of criminal liability
through judicial interpretation from case to case, provided that the resultant
development is consistent with the essence of the offence and could reasonably
be foreseen (see Scoppola (no. 2), cited above, §§ 100 and 101). A law may still satisfy the requirement of
“foreseeability” where the person concerned has to take appropriate legal
advice to assess, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Achour v. France
[GC], no. 67335/01, § 54, ECHR 2006-IV, and Huhtamäki
v. Finland, no. 54468/09, § 44,
6 March 2012).
(b) Application to the present case
. In
the light of the above principles, the Court observes that it is not its task
to rule on the applicants’ individual criminal responsibility, that being
primarily a matter for the assessment of the domestic courts, but to consider,
from the standpoint of Article 7 § 1 of the Convention, whether the criminal
offences for which the applicants were convicted were defined with sufficient
accessibility and foreseeability by Russian law.
The essence of the dispute between the parties
is whether the domestic law provisions which served as a basis for the
applicants’ convictions were foreseeable in their application, taking into
account that the judgment of the Supreme Court declaring that Hizb ut-Tahrir
was a terrorist organisation had not been officially published at the time when
the acts attributed to them had been committed. The Court
must thus examine whether the provisions in question fulfil the foreseeability
requirement.
(i) The first applicant’s case
The first applicant was convicted of incitement
to participate in the activities of a terrorist organisation, an offence under
Article 205.1 of the Criminal Code, and of founding a criminal organisation, an
offence under Article 210 of the Criminal Code.
Examining the wording of Article 205.1 of the
Criminal Code, the Court observes that no definition of a “terrorist
organisation” is contained in that Article. A definition may, however, be found
in the Anti-Terrorism Act, which defines a “terrorist organisation” as an
organisation created with the aim of carrying out terrorist activities or
admitting the possibility of recourse to terrorism as part of its activities
(see paragraph 62 above). The Anti-Terrorism Act also specifies which actions
may be regarded as amounting to “terrorism” and “terrorist activities” (see
paragraphs 60 and 61 above). A similar definition of “terrorism” is contained
in Article 205 of the Criminal Code (see paragraph 54 above). The Court
considers that Article 205.1, read in conjunction with Article 205 and with
the provisions of the Anti-Terrorism Act, is formulated with sufficient
precision to enable an individual to know, if need be
with appropriate legal advice, what acts and omissions will make him criminally
liable.
Similarly, the wording of
Article 210 of the Criminal Code is also precise. Article 210 defines a
criminal organisation as an organisation created for the commission of serious
and especially serious offences, while Article 15 of the Criminal Code
determines which offences are considered serious and especially serious (see
paragraphs 56 and 57 above).
. It
is significant that a conviction for incitement to participate in the
activities of a terrorist organisation under Article 205.1 or for founding a
criminal organisation under Article 210 has not been made conditional on the
existence of a prior judicial decision banning that organisation on the ground
of its terrorist, extremist or otherwise criminal nature. It is sufficient for the
trial court to establish, on the basis of the evidence provided by the parties,
that the organisation in question possesses all the characteristics of a
terrorist or criminal organisation as defined by the above-mentioned provisions
of the Criminal Code and the Anti-Terrorism Act.
Turning to the circumstances of the first
applicant’s case, the Court notes that the domestic
courts found all the constituent elements of the offences under Articles 205.1
and 210 in the first applicant’s acts. Thus, it was
established that the local section of Hizb ut-Tahrir founded by him was a
terrorist, and therefore criminal, organisation. It is true that when making
that finding the domestic courts relied on, inter alia, the Supreme
Court’s decision of 14 February 2003 banning Hizb ut-Tahrir on the ground of
its terrorist aims. However, the Supreme Court’s decision was not the sole
basis for that finding. The domestic courts also relied on the leaflets and
brochures found in the first applicant’s flat and distributed by him. After a
detailed assessment of their contents, the domestic courts concluded that they
called for a violent overthrow of non-Muslim governments and advocated and
glorified warfare against non-Muslim States. The fact that the guidelines on
the use of weapons, explosives and poisons were found among the above-mentioned
leaflets and brochures was also relied upon by the courts as a basis for their
finding that the local section of Hizb ut-Tahrir founded by the first applicant
was terrorist in nature. The Court is therefore not convinced by the first
applicant’s argument that the Supreme Court’s decision of 14 February 2003
was an essential element for his conviction under Articles 205.1 and 210
of the Criminal Code.
. In
view of the above, the fact that the Supreme Court’s decision of
14 February 2003 was not officially published at the material time did not
deprive the legal provisions which served as a basis for the first applicant’s
conviction of their accessibility and foreseeability. The Court considers that
Articles 205.1 and 210 of the Criminal Code, read in conjunction with Articles
15 and 205 of that Code and the provisions of the Anti-Terrorism Act, met the
Convention’s “quality of law” requirements.
. There
has therefore been no violation of Article 7 of the Convention in respect of
the first applicant.
(ii) The second applicant’s case
. The
second applicant was convicted of incitement to participate in the activities
of a terrorist organisation, an offence under Article 205.1 of the Criminal
Code, and of founding and membership of an extremist organisation, an offence
under Article 282.2 of the Criminal Code.
. The
Court has already found that Article 205.1 is formulated with sufficient
precision to enable an individual to regulate his conduct. It remains to be
examined whether Article 282.2 was also foreseeable in its application at the
time when the acts attributed to the second applicant were committed.
The Court observes that under Article 282.2 of
the Criminal Code, the founding or membership of an extremist organisation
constitutes a criminal offence only if that organisation has been previously
dissolved or banned by a final judicial decision on the ground of its extremist
activities (see paragraph 58 above). Such a judicial decision was therefore an
essential element for a conviction under Article 282.2.
The Supreme Court’s decision of 14 February 2003 banning Hizb ut-Tahrir has
never been officially published, as acknowledged by the Government, and is
therefore not accessible to the public. Nor was the official list of banned
extremist organisations published until July 2006, long after the
commission of the offences of which the second applicant was accused.
The Court takes note of the Government’s
argument that, despite the lack of an official publication, the second
applicant knew about the Supreme Court’s decision because information about it
had been widely reported in the media. It is, however, not convinced by that
argument. It considers that journalistic reporting of the Supreme Court’s
decision cannot substitute for official publication of the text of the decision,
or at least of its operative part. Only a publication emanating from an
official source can give an adequate and reliable indication of the legal rules
applicable in a given case.
It follows that, in the absence of an official
publication of Supreme Court’s decision of
14 February 2003, the second applicant could not reasonably have foreseen that
his membership of Hizb ut-Tahrir would make him criminally liable under Article
282.2.
Finally, it is relevant that the second
applicant’s conviction under Article 282.2 resulted in a heavier penalty for
him as compared to the penalty that would have been imposed had he been
convicted under Article 205.1 only (see paragraph 41 above, and compare Moiseyev
v. Russia, no. 62936/00, § 242, 9 October 2008). In these
circumstances, the Court concludes that the second applicant’s conviction for founding
and membership of an extremist organisation, an offence under Article 282.2 of
the Criminal Code, was incompatible with the principle “nulla poena sine lege”
embodied in Article 7.
. There
has therefore been a violation of Article 7 of the Convention in respect of the
second applicant.
III. ALLEGED VIOLATION OF ARTICLES 9, 10 AND 11
OF THE CONVENTION
The applicants complained that their convictions
for membership of Hizb ut-Tahrir had violated their rights under Article 9, 10
and 11 of the Convention, which provide:
Article 9
“1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or
belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one’s religion or beliefs
shall be subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the
rights and freedoms of others.”
Article 10
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of frontiers. This Article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
Article 11
“1. Everyone has the right to freedom of peaceful
assembly and to freedom of association with others, including the right to form
and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise
of these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the State.”
A. Submissions by the parties
The Government submitted that the
applicants had not been convicted for their religious beliefs but for their
membership of a terrorist organisation, Hizb ut-Tahrir al-Islami. In
particular, they had distributed leaflets and brochures promoting the superiority
of Muslims over adherents of other religions, calling for a confrontation
between Islamic fundamentalists and all others, for the violent overthrow of
non-Muslim governments and for universal Islamisation of mankind. Hizb
ut-Tahrir rejected the possibility of participating in the democratic political
process and chose to conduct its activities in an illegal and clandestine manner.
The interference with the applicants’ freedoms of religion, expression and
association had therefore been “necessary in a democratic society”. Moreover,
given the terrorist and extremist nature of the organisation and its intention to
create hostility between adherents of different religions, to foster disunity
in society and to undermine the constitutional foundations of the Russian Federation, the applicants’ actions within that organisation had been aimed at
destroying the rights and freedoms set forth in the Convention. Referring to
Article 17 of the Convention, the Government argued that the applicants could
not therefore claim the protection afforded by Articles 9, 10 and 11.
The first applicant submitted that his
conviction had interfered with his freedoms of religion, expression and
association. Given that the Supreme Court’s decision of 14 February
2003 banning Hizb ut-Tahrir had not been officially published, that
interference had been based on legal provisions which did not meet the criteria
of accessibility and foreseeability. Nor had the interference met a “pressing
social need”. Indeed, the Supreme Court’s decision banning Hizb ut-Tahrir was
vague and did not refer to any facts justifying the finding that Hizb ut-Tahrir
was a terrorist organisation. The judgments convicting the first applicant had
not contained any evidence of terrorist activities either. Although he had
never been accused of any violent acts, he had been sentenced to eight years’
imprisonment for the mere fact of his membership of Hizb ut-Tahrir. Such a severe
sanction had been obviously disproportionate to the gravity of the acts attributed
to him, which consisted in nothing more than keeping Islamic literature at
home, spreading Islamic propaganda and recruiting new members of Hizb ut-Tahrir.
. As
regards Article 17 of the Convention, the first applicant submitted that that
Article had been mainly applied to applications concerning anti-Semitic
statements or lodged by anti-Semitic groups (he referred to Garaudy v.
France (dec.), no. 65831/01, ECHR 2003-IX; W.P. and Others v. Poland
(dec.), no. 42264/98, ECHR 2004-VII; and Pavel Ivanov v. Russia (dec.), no.
35222/04, 20 February 2007). It had also been occasionally applied in cases
concerning xenophobic statements (he cited Norwood v. the United Kingdom
(dec.), no. 23131/03, ECHR 2004-XI), whereas in other cases involving similar
statements the Court had found that the application of Article 17 was not
justified and that the case should be examined on the merits (he referred to Leroy
v. France, no. 36109/03, 2 October 2008, and Féret v. Belgium, no. 15615/07, 16 July 2009). As
regards applications lodged by Muslim groups advocating the introduction of sharia,
the Court had never found that, by virtue of Article 17
of the Convention, such groups could not benefit from protection under
the Convention. All such applications had been examined on the merits (he cited
Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98,
41342/98, 41343/98 and 41344/98, ECHR 2003-II; Fazilet Partisi and
Kutan v. Turkey (dec.), no. 1444/02, 30 June 2005; and Erbakan v. Turkey, no. 59405/00, 6 July 2006). The Government had not explained into which of the
above categories of cases potentially covered by Article 17 the present
application could fall, instead limiting their submissions under that Article
to arguing that Hizb ut-Tahrir had been banned in Russia on the ground of its
intention to overthrow the constitutional foundations of the Russian Federation.
The first applicant conceded that Hizb
ut-Tahrir had been accused by some international experts of expressing anti-Semitic
views. It also indisputably advocated the introduction of sharia, which had
been found to be incompatible with the Convention. However, neither the Supreme
Court’s decision banning Hizb ut-Tahrir nor the judgments convicting the first
applicant had relied on any anti-Semitic, racist or otherwise xenophobic
statements attributable to the organisation in general or the first applicant
in particular. The thrust of the accusations levelled against the first
applicant was his membership of an organisation whose aim was to establish
Islamic rule by reviving a “Worldwide Islamic Caliphate”.
It should be taken into account that Hizb ut-Tahrir was not active in Russia, concentrating its activities in Muslim States, such as Uzbekistan. It could not therefore
realistically seize power and start creating a legal regime contrary to the
Convention. The application of Article 17 was therefore not justified in
the first applicant’s case.
The second applicant maintained his claims.
B. The
Court’s assessment
The Court will first examine whether Article 17
of the Convention is applicable to the present case. That Article states:
“Nothing in [the] Convention may be interpreted as implying for
any state, group or person any right to engage in any activity or perform any
act aimed at the destruction of any of the rights and freedoms set forth herein
or at their limitation to a greater extent than is provided for in the
Convention.”
. The
general purpose of Article 17 is to prevent individuals or groups with
totalitarian aims from exploiting in their own interests the principles
enunciated by the Convention (see Norwood, cited above). Although
to achieve that purpose it is not necessary to take away every one of the
rights and freedoms guaranteed from groups and persons engaged in activities contrary
to the text and spirit of the Convention, the Court has
found that the freedoms of religion, expression and association guaranteed by
Articles 9, 10 and 11 of the Convention are covered by Article 17 (see, among
other authorities, W.P. and Others v. Poland, cited above;
Garaudy, cited above; Pavel Ivanov, cited above; and Hizb
ut-Tahrir and Others v. Germany (dec.), no. 31098/08,
§§ 72-75 and 78, 12 June 2012).
. Indeed,
the possibility cannot be excluded that a political party or other association,
in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of
the Convention, might attempt to derive therefrom the right to conduct what
amounts in practice to activities intended to destroy the rights or freedoms
set forth in the Convention and thus bring about the destruction of democracy.
In view of the very clear link between the Convention and democracy, no one may
be authorised to rely on the Convention’s provisions in order to weaken or
destroy the ideals and values of a democratic society. In that context, the
Court considers that it is not at all improbable that totalitarian movements
might do away with democracy, after prospering under the democratic regime,
there being examples of this in modern European history (see Refah
Partisi (the Welfare Party) and Others, cited above, § 99).
. The
Court has accordingly defined as follows the limits within which political
organisations can continue to enjoy the protection of the Convention while
conducting their activities. It has found that a political organisation may promote
a change in the law or the legal and constitutional structures of the State on
two conditions: firstly, the means used to that end must be legal and
democratic; secondly, the change proposed must itself be compatible with
fundamental democratic principles. It necessarily follows that a political organisation
whose leaders incite to violence or put forward a policy which fails to respect
democracy or which is aimed at the destruction of democracy and the flouting of
the rights and freedoms recognised in a democracy cannot lay claim to the
Convention’s protection against penalties imposed on those grounds (ibid.,
§§ 97 and 98).
Turning to the circumstances of the present
case, the Court notes that both applicants were members of Hizb ut-Tahrir and
were engaged in spreading its ideology by distributing its literature and
recruiting new members. It has already found that, by reason of Article 17 of
the Convention, that organisation cannot benefit from the protection of
Articles 9, 10 and 11 of the Convention because of its anti-Semitic and
pro-violence statements, in particular statements calling for the violent
destruction of Israel and for the banishment and killing of its inhabitants and
repeated statements justifying suicide attacks in which civilians are killed.
The Court has held that Hizb ut-Tahrir’s aims are clearly contrary to the
values of the Convention, notably the commitment to the peaceful settlement of
international conflicts and to the sanctity of human life (see Hizb ut-Tahrir and Others, cited above, §§ 73-75
and 78).
The Court does not see any reason to depart
from this finding in the present case. Indeed, during the meetings of the local
section of Hizb ut-Tahrir chaired by the second applicant,
statements calling for violence against Jews were made (see paragraph 35 above). There is also evidence that, when recruiting new members, the first
applicant urged them to fight the unfaithful with weapons (see paragraph 14 above). Moreover, the experts who examined the leaflets and brochures distributed
by the applicants were unanimous in finding that they contained statements
calling for violence. Thus, the experts noted that Hizb ut-Tahrir’s literature advocated
and glorified warfare in the form of jihad, a term which was mainly used
in its meaning of “holy war”, to establish the domination of Islam. Some of the
documents in question also stated that it was permissible to kill any citizen
of enemy States, among which were named, besides Israel, the United States of America, the United Kingdom, France and Russia (see paragraphs 21 and 37 above). In view of the above, the Court is not convinced by the applicants’ assertions that
Hizb ut-Tahrir is an organisation which rejects the possibility of recourse to violence.
Furthermore, it is significant that the experts
also noted that, although Hizb ut-Tahrir clearly aspired to gain political
power in order to overthrow non-Muslim governments and impose Islamic rule
worldwide, it rejected any possibility of participating in the democratic
political process. The terminology used in Hizb ut-Tahrir’s literature to refer
to the methods to be employed to gain political power was so ambiguous as to
give cause to believe that recourse to violent methods was envisaged (see
paragraphs 21 and 37 above; see also the reports on the ideology of Hizb
ut-Tahrir by reputed international NGOs cited in paragraphs 44-50 above). It
follows from the above that the means which Hizb ut-Tahrir plans to use in
order to gain power and to promote a change in the legal
and constitutional structures of the States where it is active cannot be
regarded as legal and democratic.
Nor are the changes in
the legal and constitutional structures of the State proposed by Hizb ut-Tahrir
compatible with the fundamental democratic principles underlying the Convention.
The Court notes that the regime which Hizb ut-Tahrir plans to set up after
gaining power is described in detail in its documents. An analysis of these documents
reveals that Hizb ut-Tahrir proposes to establish a regime which rejects political
freedoms, such as, in particular, freedoms of religion, expression and
association, declaring that they are contrary to Islam. For example,
Hizb ut-Tahrir intends to introduce capital punishment for apostasy
from Islam and to ban all political parties which are not based on Islam (see paragraph 51 above).
Furthermore, in its literature Hizb ut-Tahrir
clearly states its intention to introduce a plurality of legal systems, that is,
a distinction between individuals in all fields of private and public law, with
different rights and freedoms afforded depending on religion. Thus, according
to Hizb ut-Tahrir’s Draft Constitution (see paragraph 51 above), only Muslims will have the right to vote and to be
elected, to become State officials or to acquire membership of political
parties. Different tax rules and family laws will be applicable to
Muslims and to adherents of other religions. The Court has already found that
such a system cannot be considered to be compatible with the Convention system
because it undeniably infringes the principle of non-discrimination on the
ground of religion (see Refah Partisi (the Welfare Party) and Others,
cited above, § 119). Similarly, some
provisions of the Draft Constitution promote differences in treatment based on
sex, for example providing that women cannot take up high-ranking official
positions. These provisions are hard to reconcile with the principle of gender
equality, which has been recognised by the Court
as one of the key principles underlying the Convention and a goal to be
achieved by member States of the Council of Europe (see Leyla
Şahin v. Turkey [GC], no. 44774/98, § 115, ECHR 2005-XI).
. Lastly,
the Court observes that the regime that Hizb ut-Tahrir intends to set up will
be based on sharia. However, it has previously found a regime based on sharia to
be incompatible with the fundamental principles of democracy, particularly with
regard to its criminal law and criminal procedure, its rules on the legal
status of women and the way it intervenes in all spheres of private and public
life in accordance with religious precepts. An organisation whose actions seem
to be aimed at introducing sharia in a State Party to the Convention can hardly
be regarded as complying with the democratic ideal that underlies the whole of
the Convention (see Refah Partisi (the Welfare Party) and Others,
cited above, § 123).
It is significant that the activities of Hizb
ut-Tahrir are not limited to promoting religious worship and observance in
private life of the requirements of Islam. They extend outside the sphere of
individual conscience and concern the organisation and functioning of society
as a whole. Hizb ut-Tahrir clearly seeks to impose on
everyone its religious symbols and conception of a society founded on religious
precepts (ibid., § 128; see also Leyla
Şahin, cited above, § 115).
In view of the above considerations, the Court finds
that the dissemination of the political ideas of Hizb ut-Tahrir by the
applicants clearly constitutes an activity falling within the scope of Article
17 of the Convention. The applicants are essentially seeking to use Articles 9,
10 and 11 to provide a basis under the Convention for a right to engage in
activities contrary to the text and spirit of the Convention. That right, if
granted, would contribute to the destruction of the rights and freedoms set forth in the Convention and referred to above.
It follows that the applicants’ complaints under
Articles 9, 10 and 11 are incompatible ratione
materiae with the provisions of the Convention
within the meaning of Article 35 § 3 (a) and must be rejected in accordance
with Article 35 § 4.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicants complained under Article
14 of the Convention, taken in conjunction with Articles 9, 10 and 11, that
they had been discriminated against on account of their religious beliefs.
The Court has found that that the applicants
are precluded by Article 17 of the Convention from relying on Articles 9, 10
and 11 of the Convention in respect of their convictions for membership of Hizb
ut-Tahrir and dissemination of its ideas. It follows that they cannot allege a
violation of Article 14 of the Convention taken in conjunction with these same
Articles (see Hizb ut-Tahrir and Others, cited
above, § 89).
It follows that this complaint is incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 § 3 (a) and must
be rejected in accordance with Article 35 § 4.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
The second applicant did not submit a claim for
just satisfaction. Accordingly, the Court considers that there is no call to
award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join the applications;
2. Declares the complaint concerning the
conviction on the basis of legal provisions that were allegedly neither
accessible nor foreseeable in their application admissible and the remainder of
the applications inadmissible;
3. Holds that there has been no violation of
Article 7 of the Convention in respect of the first applicant;
4. Holds that there has been a violation of
Article 7 of the Convention in respect of the second applicant.
Done in English, and notified in writing on 14 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
