Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, RUSSIAN FEDERATION; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.26-05329 (E) 290526 290526
Human Rights Committee
Views adopted by the Committee under the Optional
Protocol, concerning communication No. 3192/2018*, **, ***
Communication submitted by:
Anatoly Vilitkevich, Alyona Vilitkevich, Venera
Mikhailova, Viner Ganiev, Alfiya Ilyasova,
Syuzanna Ilyasova, Yelena Kozhevnikova,
Oksana Lapina, Gulfiya Khafizova, Lilianna
Khafizova, Nadezhda Yakimova and Olesya
Yakimova (represented by counsels Shane Brady
and Haykaz Zoryan)
Alleged victims:
The authors
State Party:
Russian Federation
Date of communication:
30 April 2018 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 19 June 2018 (not issued in
document form)
Date of adoption of Views:
13 March 2026
Subject matter:
Criminal charges brought against a Jehovah’s
Witness for “extremism”; arrest and detention for
peaceful religious meeting; search and seizures
in private homes; discrimination on religious
grounds; religious minority rights
Procedural issues:
Exhaustion of domestic remedies; substantiation
of claims
Substantive issues:
Right to liberty and security of person;
interference with privacy and home; freedom of
thought, conscience and religion; equality before
the law; rights of minorities to profess and
practise their religion
Articles of the Covenant:
9 (1) and (3), 17 (1) and (2), 18 (1–3), 26 and 27
* Adopted by the Committee at its 145th session (2–19 March 2026).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Carlos Ramón Fernández Liesa, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye, Hernán
Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Tijana Šurlan, Teraya Koji and
Hélène Tigroudja.
*** Individual opinions by Committee members Hernán Quezada Cabrera (partially concurring)
and Hélène Tigroudja (partially dissenting) are annexed to the present Views.
United Nations
CCPR/C/145/D/3192/2018
International Covenant on
Civil and Political Rights
Distr.: General
8 May 2026
Original: English
CCPR/C/145/D/3192/2018
2
GE.26-05329
Articles of the Optional Protocol:
2 and 5 (2) (b)
1.1
The authors of the communication are the following 12 individuals, all of whom are
nationals of the Russian Federation: Anatoly Vilitkevich, born in 1986; Alyona Vilitkevich,
born in 1983; Venera Mikhailova, born in 1967; Viner Ganiev, born in 1964; Alfiya Ilyasova,
born in 1975; Syuzanna Ilyasova, born in 2001; Yelena Kozhevnikova, born in 1969; Oksana
Lapina, born in 1974; Gulfiya Khafizova, born in 1960; Lilianna Khafizova, born in 1989;
Nadezhda Yakimova, born in 1961; and Olesya Yakimova, born in 1985. They claim that the
State Party has violated their rights under articles 9 (1), 17 (1) and (2), 18 (1–3), 26 and 27
of the Covenant. In addition, Mr. Vilitkevich alleges that his rights have been violated under
article 9 (3) of the Covenant. The Optional Protocol entered into force for the State Party on
1 January 1992. The authors are represented by counsel.
1.2
On 30 April 2018, Mr. Vilitkevich submitted a request for interim measures, asking
the Committee to request his release from pretrial detention. On 19 June 2018, the Committee,
through its Special Rapporteurs on new communications and interim measures, decided not
to grant that request.
Facts as submitted by the authors
2.1
All of the authors are Jehovah’s Witnesses residing in Ufa, Republic of Bashkortostan,
in the Russian Federation. On 20 April 2017, the Supreme Court of the Russian Federation
declared the National Administrative Centre of Jehovah’s Witnesses, together with 395
affiliated local religious organizations, to be “extremist organizations”. The Court ordered
their liquidation and banning, and the confiscation of their property by the State. Prior to that
decision, Mr. Vilitkevich served as a religious minister and all the other authors were
members of the same “religious group”, as defined in section 7 of the Federal Act on Freedom
of Conscience and Religious Associations.
2.2
On 5 April 2018, the Leninsky District Court of Ufa granted the request of the Ufa
Investigative Department to authorize searches of the authors’ homes based on their
suspected participation in the activity of a religious organization that had been banned
pursuant to a final court decision. As stated in the Investigative Department’s request,
between 19 October and 19 November 2017, in Ufa the authors knowingly participated in
the activities of the Jehovah’s Witnesses, a banned religious organization that had been
designated extremist pursuant to Supreme Court Decision No. AKPI 17-238. The
Investigative Department’s request also indicated that the authors had deliberately and
knowingly engaged in preaching, attending and conducting meetings, propagating the
organization’s activity, thus furthering its aims despite its liquidation and prohibition in the
Russian Federation.
2.3
On 10 April 2018, the police carried out simultaneous raids on the authors’ homes.
The raids lasted several hours. The police seized property, including religious literature and
personal belongings such as telephones and computers. The authors then were taken to the
Investigative Department Office, where they spent several hours and were interrogated,
photographed and fingerprinted. All of the authors were released after interrogation, except
Mr. Vilitkevich, who remained in police custody.
2.4
On 12 April 2018, Mr. Vilitkevich was charged as a suspect under article 282.2 of the
Criminal Code for organizing the activities of an organization that had been declared
extremist pursuant to a final court decision, punishable by up to 10 years of imprisonment.
That same day, the Leninsky District Court authorized his remand in custody until 2 June
2018. On 16 April 2018, Mr. Vilitkevich lodged an appeal against that decision before the
Supreme Court of the Republic of Bashkortostan. On the same date, the authors also filed
separate appeals against the Leninsky District Court’s ruling of 5 April 2018 authorizing the
searches of their homes.
Complaint
3.1
The authors claim that their rights under article 9 (1) of the Covenant were violated
when they were taken against their will to the Investigative Department Office, where they
were made to wait for hours – some of them all day – and then interrogated, photographed
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and fingerprinted. They claim to have been subjected to arbitrary arrest and detention on the
basis of their religion, without being suspects in any criminal proceedings.
3.2
Mr. Vilitkevich claims, in addition, that his arrest and detention on 12 April 2018
constituted a violation of article 9 (3) of the Covenant. He argues that the courts failed to
provide any evidence that his pretrial detention was necessary.
3.3
The authors claim that their rights under article 17 (1) of the Covenant were violated
when the police carried out the raids on their homes and seized religious texts, computers and
other personal belongings.
3.4
The authors also claim that their rights under article 18 (1) of the Covenant were
violated when the police searched and seized their Bibles and religious texts. Mr. Vilitkevich
claims, in addition, that his arrest and detention for his religious ministry constitute a
violation of his rights under article 18 (1). The authors further claim that the State’s actions
amounted to coercion, contrary to article 18 (2) of the Covenant. They maintain that the
authorities sought to intimidate them into abandoning their faith under the pretext of
combating extremism, with the aim of suppressing the religious practice of Jehovah’s
Witnesses. They submit that such interference with their peaceful religious activities cannot
be justified under article 18 (3) of the Covenant.
3.5
The authors claim that the State violated their rights under articles 26 and 27 of the
Covenant by discriminating against them, as a religious minority, on the basis of their
religious beliefs. They argue that, as Jehovah’s Witnesses, they were subjected to
prosecutions that no other religious organization in the Russian Federation has experienced,
without reasonable or objective justification. They claim that they were denied the right to
profess and practise their faith in community with others and that the measures taken by the
authorities, including raids, prosecutions and bans, were aimed at extinguishing their
religious identity and practice.
State Party’s observations on admissibility and the merits
4.1
In a note verbale dated 24 December 2018, the State Party submitted its observations
on admissibility and the merits of the communication, requesting the Committee to find the
communication inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol.
4.2
The State Party submits that the authors failed to exhaust domestic remedies in several
respects: (a) Mr. Vilitkevich did not file cassation appeals against the Leninsky District Court
decision of 12 April 2018 ordering his detention, rendering his claims under article 9 (1) and
(3) inadmissible; (b) the authors did not lodge cassation appeals against the ruling of 5 April
2018 authorizing the search of their residences, rendering their allegations under article 17
inadmissible; and (c) the authors failed to raise their claims under article 18 (2), as well as
articles 26 and 27, before the domestic courts. According to the State Party, only 9 of the
12 authors lodged appeals against the search of their homes.
4.3
The State Party further submits that, on 21 June 2018, the Supreme Court of the
Republic of Bashkortostan overturned the Leninsky District Court decision of 1 June 2018
and replaced detention with house arrest, and that Mr. Vilitkevich has not appealed that
decision.
4.4
With regard to the merits of the authors’ allegations under article 9 (1) and (3) of the
Covenant, the State Party submits that 11 of the authors were not formally placed under arrest.
Mr. Vilitkevich was arrested and detained under article 282.2 of the Criminal Code not for
peaceful worship, but for organizing the activities of the Ufa chapter of the “Administrative
Centre of Jehovah’s Witnesses in Russia”, which is a banned organization, despite knowing
that it had been outlawed by the Supreme Court on 20 April 2017 for extremist activities. His
detention was based on the reasonable suspicion that, if released, he might obstruct the legal
proceedings or influence witnesses, and did not therefore amount to arbitrary detention. The
domestic courts carefully assessed all the relevant facts, including the absence of a criminal
record, his family ties, place of residence and health status. Subsequently the appeal court
reviewed the necessity of detention and replaced it with house arrest. There were no
procedural irregularities or arbitrariness.
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4.5
With regard to article 17 of the Covenant, the State Party submits that the searches of
the authors’ homes were duly authorized by the courts in a criminal investigation under article
282 of the Criminal Code and were lawful. The authors’ argument that the searches
constituted criminalization of religious activity essentially reflects disagreement with the
decision of the Supreme Court of the Russian Federation of 20 April 2017. The searches were
carried out with the aim of confiscating religious material as evidence in a criminal
investigation. During the searches and seizure of property, a balance was maintained between
the private interests of the individuals concerned and the public interest in the conduct of
criminal proceedings.
4.6
The State Party objects to the claim that articles 26 and 27 were violated, given that
the searches of the authors’ homes and Mr. Vilitkevich’s arrest were based on legitimate
grounds set out in the Act on Freedom of Conscience and Religious Associations and the Act
on Combating Extremist Activity, which provide for restrictions on activities of religious
organizations. The authors were aware of the Supreme Court decision declaring the
Administrative Centre of Jehovah’s Witnesses an extremist organization and banning it in
the Russian Federation. Nevertheless, they took part, out of religious motivation, in pursuing
the goals of the extremist organization aimed at spreading the faith through preaching in
public places and residential locations, thereby conducting propaganda for a banned
organization and directly participating in activities conducted by members of the Jehovah’s
Witnesses. The State Party argues that the restrictions imposed on the authors were
proportionate and necessary in a democratic society, not based on any discriminatory grounds
but aimed at protecting others, preventing harm to public order and security, society and the
State.
Authors’ comments on the State Party’s observations on admissibility and the merits
5.1
On 15 July 2019, the authors submitted their comments on the State Party’s
observations, in which they reiterated their arguments concerning all the allegations. They
maintain that the cassation appeal procedure in the Russian Federation is not an effective
remedy and does not need to be exhausted.
5.2
The authors updated the Committee on developments that had taken place since their
original submission. On 21 June 2018, the Supreme Court of Bashkortostan partially upheld
Mr. Vilitkevich’s appeal, replacing his detention with house arrest after he had spent 73 days
in pretrial detention. His house arrest was subsequently extended on seven occasions until 2
March 2019. On 28 February 2019, it was replaced with an indefinite travel ban pending trial.
In total, Mr. Vilitkevich remained under restraint for 325 days, including 73 days in detention
and 252 days under house arrest. The authors refer to opinion No. 11/2019 of the Working
Group on Arbitrary Detention, concerning a similar case, and argue that deprivation of liberty
in Mr. Vilitkevich’s case was arbitrary and discriminatory.1
Additional submissions
From the State Party
6.
On 2 September 2020, the State Party reiterated that there had been no violation of
the Covenant. It submits that Mr. Vilitkevich’s detention was lawful, based on evidence of
his continued organizational activities, and notes that the restrictive measures were
progressively mitigated over time. The State Party maintains that the searches of the authors’
homes were lawful, conducted with proper judicial authorization, and resulted in the seizure
of materials related to criminal activity. The State Party also submits that the domestic courts
examined the authors’ cases observing all procedural safeguards.
From the authors
7.
On 25 August 2022, the authors submitted to the Committee two more recent opinions
of the Working Group on Arbitrary Detention2 and the judgment of the European Court of
1 A/HRC/WGAD/2019/11.
2 A/HRC/WGAD/2019/34 and A/HRC/WGAD/2020/10.
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Human Rights in LRO and Others v. Russian Federation, 3 condemning the systemic
persecution of Jehovah’s Witnesses in the State Party.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
8.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
8.3
The Committee notes the State Party’s argument that only 9 of the 12 authors
submitted appeals against the order of 5 April 2018 authorizing the search of their homes. In
the absence of any clarification from the authors in that regard, the Committee finds the
claims under article 17 of the Covenant submitted by Alyona Vilitkevich, Syuzanna Ilyasova
and Nadezhda Yakimova inadmissible under article 5 (2) (b) of the Optional Protocol.
8.4
The Committee also notes the State Party’s claim that the rest of the authors have
failed to exhaust all available domestic remedies because they have not submitted appeals
under the cassation review procedure. The Committee further notes the authors’ argument
that cassation appeals would be ineffective and unlikely to bring any relief. The Committee
recalls that, for the purposes of article 5 (2) (b) of the Optional Protocol, domestic remedies
must be both effective and available, and must not be unduly prolonged. The Committee also
recalls its jurisprudence in which it has found that criminal cassation appeals in the Russian
Federation do not constitute effective remedies for the purposes of article 5 (2) (b) of the
Optional Protocol, and it is therefore for the State Party to demonstrate that such a procedure
offers a reasonable prospect of redress in the circumstances of the present case. 4 In the
absence of any clarification from the State Party as to the effectiveness of cassation review
in cases of searches of the homes of Jehovah’s Witnesses, in particular after the Supreme
Court decision of 20 April 2017 banning the Jehovah’s Witnesses religious organization, the
Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from
considering the merits.
8.5
The Committee notes Mr. Vilitkevich’s claim under article 9 (3) of the Covenant.
However, it notes that the author’s detention was authorized by the Leninsky District Court
on 12 April 2018 and that the author’s arguments support his claims under article 9 (1) rather
than article 9 (3) of the Covenant. The Committee thus finds this claim insufficiently
substantiated and inadmissible under article 3 of the Optional Protocol.
8.6
The Committee considers that the remaining authors have sufficiently substantiated,
for the purposes of admissibility, their claims under articles 9 (1), 17 (1), 18 (1–3), 26 and 27
of the Covenant. The Committee thus declares these claims admissible and proceeds with the
consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all information made
available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
9.2
In relation to the authors’ claim under article 18 (1) and (3) of the Covenant, the
Committee recalls its general comment No. 22 (1993) on the right to freedom of thought,
conscience and religion, in which it stated that article 18 does not permit any limitations
whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a
religion or belief of one’s choice (para. 3). By contrast, the right to freedom to manifest one’s
religion or beliefs may be subject to certain limitations, but only those prescribed by law and
3 European Court of Human Rights, Taganrog LRO and Others v. Russia, Applications Nos. 32401/10
and 19 others, Judgment, 7 June 2022.
4 Krikkerik v. Russian Federation (CCPR/C/137/D/2992/2017), paras. 8.3 and 8.4.
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necessary to protect public safety, public order, health or morals or the fundamental rights
and freedoms of others.
9.3
The Committee notes the authors’ contention that their homes were searched,
religious materials seized and that they were arrested and detained for practising their religion
in community with others. The Committee also notes from the criminal investigation
documents on file that the unlawful activities of which the authors were accused included
preaching, attending and conducting meetings of the banned Jehovah’s Witnesses religious
organization. In line with its general comment No. 22 (1993), the Committee considers that
these activities form part of the authors’ right to manifest their beliefs.
9.4
The Committee must now determine whether the limitations imposed on the authors’
right to manifest their religion were prescribed by law and necessary within the meaning of
article 18 (3) of the Covenant. The Committee notes the State Party’s argument that the
limitation was prescribed by law, namely by article 282 (2) of the Criminal Code applied
following the Supreme Court decision of 20 April 2017 by which the entire Jehovah’s
Witnesses religious organization was pronounced extremist.
9.5
In this regard, the Committee notes that the Supreme Court decision of 20 April 2017,
available on file, banned the Administrative Centre of Jehovah’s Witnesses and its 395 local
organizations as extremist, which entailed prohibition of their activities and confiscation of
their property. Nevertheless, the Committee observes that that decision did not prohibit
Jehovah’s Witnesses from conducting individual or joint peaceful religious activities. The
domestic decisions on file describe the authors as participating in the activities of a “banned
organization of Jehovah’s Witnesses” because they were meeting to peacefully practise their
religion. There is no differentiation between private practice by individual believers and
membership of a formal administrative entity or between peaceful religious worship and
extremist activities. Based on these observations, the Committee concludes that the State
Party has not demonstrated sufficient legal basis or reasons to impose restrictions on the
authors’ peaceful religious activities. The Committee finds that the State Party has violated
the authors’ rights under article 18 (1) of the Covenant. The Committee will not separately
examine the same claims under article 18 (2).
9.6
With regard to the authors’ allegations of discrimination under article 26 of the
Covenant, the Committee recalls its general comment No. 18 (1989), in which defined
“discrimination” as any distinction, exclusion, restriction or preference which is based on any
ground, including religion, and which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms (para. 7). Differentiated treatment could be allowed if the criteria for such
differentiation are reasonable and objective and if the aim is to achieve a purpose which is
legitimate under the Covenant (para. 13).
9.7
In the present case, the Committee notes the State Party’s argument that the restriction
of the authors’ rights was based on their promotion of the activities of a banned religious
organization and that it was necessary to protect public order, security and the rights of others
(para. 4.6 above). The Committee observes, from the information before it, that although the
Supreme Court decision of 20 April 2017 concerned the dissolution of an administrative
organization of Jehovah’s Witnesses and did not outlaw the entire religion, it was interpreted
by the domestic courts and authorities as summarily banning any practice of the Jehovah’s
Witnesses religion. The information on file and the State Party’s submissions indicate that
mere participation in the religious meetings of Jehovah’s Witnesses was regarded as an
extremist activity based on the 2017 Supreme Court decision. That interpretation led to the
investigation of the authors and the prosecution of Mr. Vilitkevich, without any indication of
extremism in their own actions. In the absence of any information indicating that the authors
were engaged in any conduct other than the peaceful exercise of their religion, the Committee
cannot accept the State Party’s argument that they were targeted based on reasonable and
objective grounds.5 In the light of this, the Committee concludes that the authors’ religious
allegiance was the sole basis for their prosecution and finds their treatment discriminatory on
religious grounds in violation of article 26 of the Covenant.
5 See, mutatis mutandis, Waldman v. Canada (CCPR/C/67/D/694/1996), paras. 10.4–10.6.
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9.8
The Committee notes the authors’ claims under article 27 that, as members of a
religious minority, they have been subjected to prosecutions aimed at extinguishing their
religious identity and practice. The Committee recalls that under article 27, persons belonging
to minorities, inter alia religious minorities, shall not be denied the right, in community with
the other members of their group, to profess and practise their own religion. The Committee
recalls its general comment No. 23 (1994), in which it stated that these rights depend on the
ability of the minority group to maintain its religion (para. 6.2) and that article 27 relates to
rights whose protection imposes specific obligations on States Parties. The protection of
those rights is directed towards ensuring the survival of the religious identity of the minorities
concerned (para. 9).
9.9
The facts in the present communication indicate that the authors were subjected to
investigation, and Mr. Vilitkevich was charged under article 282 (2) of the Criminal Code,
based on their peaceful group religious practices, which were monitored by the Ufa
Investigative Department from 19 October to 19 November 2017 (para. 2.2 above). As
indicated (para. 9.5 above), rather than pointing to any extremist activities perpetrated by the
authors, the authorities effectively banned their religious practice in its entirety by subjecting
any manifestation thereof to criminal prosecution under article 282 of the Criminal Code,
relying on the Supreme Court decision of 20 April 2017. The Committee finds that such
excessive interpretation and application of the Supreme Court decision resulted in denial of
the authors’ right to profess and practise their own religion in community with the other
members of their religious group and threatened the continued existence of their religious
community, albeit a religious minority. The Committee considers that in the present case, the
State Party undermined the authors’ ability to maintain their religious identity as Jehovah’s
Witnesses, in violation of article 27 of the Covenant.
9.10
The Committee notes the authors’ claim under article 9 (1) of the Covenant that, on
10 April 2018, they were compelled to accompany the police to the Investigative Department
Office and were kept there for many hours, during which they were interrogated,
photographed and fingerprinted. Noting the State Party’s position that there was no formal
arrest, the Committee must first ascertain whether the authors were deprived of their liberty
within the meaning of article 9 (1) of the Covenant. The Committee recalls that, as it stated
in its general comment No. 35 (2014), deprivation of personal liberty is without free consent;
individuals who go voluntarily to a police station and who know that they are free to leave at
any time are not being deprived of their liberty (para. 6). Moreover, arrest within the meaning
of article 9 need not involve a formal arrest as defined under domestic law (para. 13). The
Committee notes the authors’ assertion that they were not free to leave during the relevant
period. In the absence of information from the State Party indicating that the authors could
have declined to accompany the police or, once present, could have left without adverse
consequences, the Committee concludes that they were coerced into accompanying the police
to the Investigative Department Office and remaining there until released, and were therefore
deprived of their liberty. The Committee, therefore, finds that the authors were arrested, for
the purposes of article 9 (1) of the Covenant.
9.11
The Committee recalls, as it stated in its general comment No. 35 (2014), that: (a) an
arrest or detention must not only be lawful but also include elements of reasonableness and
necessity in all circumstances (para. 12); (b) unlawful deprivation of liberty is deprivation of
liberty that is not imposed on such grounds and in accordance with such procedure as are
established by law (para. 11); (c) the notion of arbitrariness extends beyond unlawfulness and
includes elements of inappropriateness, injustice, lack of predictability and due process of
law, as well as reasonableness, necessity and proportionality (para. 12);6 and (d) detention
imposed as punishment for the legitimate exercise of the rights guaranteed by the Covenant,
including freedom of religion, is arbitrary (para. 17).7 The Committee recalls the authors’
submission that they were detained and that Mr. Vilitkevich was placed in pretrial detention
solely for the peaceful exercise of their religion. In line with its findings above that there was
no legal basis or any acceptable justification for restricting the authors’ rights (para. 9.5), the
6 For example, Bratsylo et al. v. Russian Federation (CCPR/C/140/D/3022/2017), para. 8.4, and
Cayzer v. Australia (CCPR/C/135/D/2981/2017), para. 8.10.
7 Akhmedov v. Kazakhstan (CCPR/C/143/D/3098/2018), para. 7.6.
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Committee considers that the authors’ arrest was unlawful and arbitrary within the meaning
of article 9 (1) of the Covenant. Similarly, the Committee finds that Mr. Vilitkevich’s pretrial
detention was lacking legal grounds and finds it similarly unlawful and arbitrary in violation
of article 9 (1) of the Covenant.
9.12
Having concluded that, in the present case, there has been a violation of articles 9 (1)
and 18 (1) of the Covenant, the Committee decides not to examine separately whether the
same facts constitute a violation of article 17.
10.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose a violation by the State Party of articles 9 (1), 18 (1), 26 and 27 of
the Covenant.
11.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to
provide the authors with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State Party is
obligated to provide the authors with adequate compensation, including reimbursement of
the court fees and legal expenses that they have incurred in relation to the domestic
proceedings and to provide Mr. Vilitkevich with adequate compensation for the time he spent
in detention ordered in violation of the Covenant. The State Party is also under an obligation
to take all steps necessary to prevent similar violations from occurring in the future.
12.
Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State Party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State Party is also requested to publish the present Views and to
have them widely disseminated in the official language of the State Party.
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Annex I
[Original: Spanish]
Individual opinion of Committee member Hernán Quezada
Cabrera (partially concurring)
1.
I fully agree with the Committee’s conclusion that the facts presented in this case
disclose a violation by the State Party of the authors’ rights under articles 9 (1), 18 (1), 26
and 27 of the Covenant, on account of the unlawful and arbitrary deprivation of liberty to
which they were subjected, including the pretrial detention of one of them, as well as the
unfounded prohibition of their religious activities, which was discriminatory and undermined
their freedom to maintain their religious identity.
2.
However, it seems to me that inadequate justification has been provided for the
decision contained in paragraph 9.12 of the Views, as the paragraph simply states that, having
concluded that there has been a violation of articles 9 (1) and 18 (1) of the Covenant, the
Committee decides not to examine separately whether the same facts constitute a violation
of article 17 of the Covenant.
3.
From this decision, according to one possible interpretation, it could be understood
that the facts amounting to a violation of article 17 of the Covenant are subsumed under the
aforementioned violation of articles 9 (1) and 18 (1), or that the two provisions of which the
Committee has found a violation are lex specialis compared to the provision whose possible
violation is not being examined.1 That is mere speculation, however, and it cannot take the
place of the reasoning that the Committee should have provided when deciding not to
consider separately the authors’ claims under article 17 of the Covenant.
1 In this regard, it is worth noting the Committee’s Views in the case of Benhadj v. Algeria
(CCPR/C/90/D/1173/2003), para. 8.5. Although those Views concern provisions of the Covenant
other than those examined in the present case, it is worth noting the way in which the Committee
explicitly justified its decision not to examine separately the possible violation of a specific article of
the Covenant, thereby implicitly applying the principle of lex specialis.
CCPR/C/145/D/3192/2018
10
GE.26-05329
Annex II
[Original: English]
Individual opinion of Committee member Hélène Tigroudja
(partially dissenting)
1.
I concur with the bold step taken by the Committee in the present Views with regard
to the violation of the authors’ right to freedom to peacefully practise their religion (art. 18
(1) of the Covenant) but also, the violation of their right to equality before the law (art. 26)
and protection of religious minorities’ rights (art. 27). However, I regret that the Committee
has not better explained its shift of approach to these provisions compared to the dozens of
cases revealing similar patterns (home searches, confiscation of so-called extremist religious
literature, prohibition of private gatherings, etc.) suffered by Jehovah Witnesses in the
Russian Federation, as well as in other States Parties. For instance, in its Views in Yurlov et
al. v. Russian Federation, dealing with the dissolution of a local organization of Jehovah
Witnesses for distributing “extremist” literature,1 the Committee concluded that there had
been a violation of the right to freedom of religion (art. 18) and the right to freedom of
association (art. 22), but decided not to decide on articles 26 and 27 of the Covenant.2
2.
In the present case, the shift of approach regarding article 27 seems to be implicitly
based on the fact that the domestic interpretation and application of the Supreme Court
decision of 20 April 2017 “resulted in denial of the authors’ right to profess and practise their
own religion in community with the other members of their religious minority group and
threatened the continued existence of their religious community, albeit a religious minority”
(para. 9.9 of the Committee’s Views). However, the threshold and standards applied by the
Committee to draw the distinction with previous cases where Jehovah Witnesses were also
arrested, harassed, deprived of liberty or fined for their religious private activities is unclear
and should have been clarified.
3.
The same remark applies to the conclusion of a violation of article 26. In paragraph 9.7
of its Views, the Committee “concludes that the authors’ religious allegiance was the sole
basis for their prosecution and finds their treatment discriminatory on religious grounds”.
More legal or factual explanation of the Committee’s reasoning would be needed for legal
predictability and certainty to better understand why the Committee has, for so long, either
rejected as inadmissible or decided not to decide on the discriminatory treatment of Jehovah
Witnesses in the Russian Federation, as well as in many other States Parties, and why in the
present case, it departs from its precedents.
4.
Nevertheless, I agree with the conclusion of a violation of these two provisions. My
disagreement with the Committee is related to the decision not to examine the violation of
article 17 of the Covenant (protection from interference with family and private life and
home). In paragraph 9.12 of its Views, and following its long-standing but inconsistent
practice, the Committee indicates that it “decides not to examine separately whether the same
facts constitute a violation of article 17”. In this regard, I fully concur with the partially
concurring opinion of my colleague Hernán Quezada Cabrera in the present case (annex I
above) and I would like to go a little further. To me, the claim under article 17 is not only
admissible but should also lead to a conclusion of violation.
5.
Indeed, as detailed in paragraph 2.3 of the Views, “the police carried out simultaneous
raids on the authors’ homes. The raids lasted several hours. The police seized property,
including religious literature and personal belongings such as telephones and computers.” In
its response (para. 4.5), the State stresses that these searches and seizures were authorized by
and grounded in domestic law. In this regard, the Committee should have applied the same
1 CCPR/C/139/D/2925/2017.
2 See, in this regard, the partially dissenting opinion of Committee member Carlos Gómez Martínez on
the decision not to decide on articles 26 and 27 of the Covenant (CCPR/C/139/D/2925/2017,
annex II).
CCPR/C/145/D/3192/2018
GE.26-05329
11
standards as those implemented in two similar recent cases, Tsoy et al. v. Uzbekistan3 and
Maksutova et al. v. Uzbekistan.4 In these precedents, where the State Party used the same
defence’s argument, the Committee recalled its general comment No. 16 (1988) on the right
to privacy and stressed that “under article 17 of the Covenant, it is necessary for any
interference with the home to be both lawful and not arbitrary”, adding that ”the police’s
search of the authors’ homes was disproportionate to the threat of harm allegedly associated
with the possession of religious literature”.5
6.
Based on the factual background of the present case, the very same conclusion should
have been reached, and it is hardly understandable and is illogical to me that the Committee
adopted a stance of self-restraint on such an important intrusion on the right to privacy,
obviously based on religious discrimination. Therefore, in addition to the violation of articles
9, 18, 26 and 27 of the Covenant, the Committee should also have concluded that there was
a violation of article 17 and accordingly, it should have requested reparation and guarantees
of non-repetition.
3 CCPR/C/142/D/3155/2018, CCPR/C/142/D/3156/2018, CCPR/C/142/D/3158/2018, para. 8.3.
4 CCPR/C/142/D/3157/2018, CCPR/C/142/D/3159/2018, CCPR/C/142/D/3166/2018,
CCPR/C/142/D/3185/2018, para. 7.3.
5 Ibid.