The communication is submitted by 12 individuals, who are all Russian nationals: Mr. Anatoly Vilitkevych born in 1986, Ms. Alyona Vilitkevich born in 1983, Ms. Venera Mikhailova born in 1967, Mr. Viner Gainiev born in 1964, Ms. Aliya Ilyasova born in 1975, Ms. Syuzanna Ilyasova born in 2001, Ms. Yelena Kozhevnikova born in 1969, Ms. Oksana Lapina born in 1974, Ms. Gulfiya Khafizova born in 1960, Ms. Liliana Khafizova born in 1989, Ms. Nadezhda Yakimova born in 1961 and Ms. Olesya Yakimova born in 1985. The authors claim that their rights under articles 9 (1), 17 (1) and (2), 18 (1-3), 26 and 27 of the Covenant have been violated by the State party. In addition to these claims, Mr. Anatoly Vilitkevich alleges that his rights under article 9 (3) of the Covenant have been violated. The Optional Protocol entered into force for Russian Federation on 1 January 1992.
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 the authors’ request.
Facts as submitted by the authors
All authors are Jehovah’s Witnesses residing in Ufa, Republic of Bashkortostan, 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 organisations, to be “extremist organisations.” 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 authors were members of the same “religious group”, as defined by section 7 of the Federal Act on Freedom of Conscience and Religious Associations.
On 5 April 2018, the Leninsky District Court of Ufa granted the request of the Ufa Investigative Department to authorise searches of the authors’ homes based on their suspected participation in the activity of a religious organization banned by 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 banned religious organisation “Jehovah’s Witnesses”, designated extremist by the Supreme Court Decision No. АКПИ 17-238. Also according to the Investigative Department’s request they deliberately and knowingly engaged in preaching, attending and conducting meetings, propagating the organisation’s activity thus furthering its aims despite its liquidation and prohibition in Russia.
On 10 April 2018, police carried out simultaneous raids on their homes. The raids lasted several hours. Property was seized, including religious literature and personal belongings such as telephones and computers. The authors then were taken to the Investigative Department Office, where they spent hours and were interrogated, photographed and fingerprinted. All authors were released after interrogation, except Mr. Vilitkevich, who remained in police custody.
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 organisation declared “extremist” by a final court decision, punishable by a term of imprisonment up to ten years. 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 before the Supreme Court of the Republic of Bashkortostan against the decision of the Leninsky District Court of 12 April 2018. On the same date, the authors also filed separate appeals against the Leninsky District Court’s ruling of 5 April 2018 authorising the searches in their homes.
The complaint
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, 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.
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 pretrial detention was necessary.
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.
The authors claim violation of their rights under article 18 (1) of the Covenant by the search and seizure of their Bibles and religious texts. Mr. Vilitkevich, in addition, claims violation of article 18 (1) by his arrest and detention for his religious ministry. 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 combatting extremism, with the aim of suppressing the religious practice of Jehovah’s Witnesses. The authors submit that such interference with their peaceful religious activities cannot be justified under article 18 (3) of the Covenant.
The authors claim that the State violated their rights under articles 26 and 27 of the Covenant by discriminating against them, as 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 organisation in Russia has experienced, without reasonable or objective justification. They claim that they were denied the right to profess and practice their faith in community with others and argue 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
In a note verbale dated 24 December 2018, the State party submitted its observations on admissibility and the merits of the communication. The State party requests the Committee to find the communication inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol.
The State party submits that the authors failed to exhaust domestic remedies in several respects: Mr. Vilitkevich did not file cassation appeals against the Leninsky District Court decision of 12 April 2018 ordering his detention, rendering his claims under articles 9 (1) and (3) inadmissible; the authors did not lodge cassation appeals against the ruling of 5 April 2018 authorising searches of their residences, rendering their allegations under article 17 inadmissible; and they also 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 nine out of 12 authors lodged appeals against search measures in their homes.
The State party further submits that on 21 June 2018 the Supreme Court of the Republic of Bashkortostan overturned the Leninsky District Court’s decision of 1 June 2018, and replaced detention with house arrest and that the author has not appealed this decision.
With regard to the merits, on authors’ allegations under article 9 (1) and (3) of the Covenant, the State party submits that the 11 authors had not been 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 activities of the banned organization ‘the Administrative Centre of Jehovah’s Witnesses in Russia’ in Ufa, despite knowing that it has been outlawed by the Supreme Court on 20 April 2017 for extremist activities. His detention was based on reasonable suspicion that, if released, he might obstruct the proceedings or influence witnesses and therefore did not amount to arbitrary detention. The domestic courts carefully assessed all relevant facts, including the absence of a criminal record, family ties, place of residence, and health condition. Subsequently the appeal court reviewed the necessity of detention and replaced it with house arrest. There were no procedural irregularities or arbitrariness.
With regard to article 17 of the Covenant, the State party submits that the argument that the searches in the authors’ homes were duly authorized by court in a criminal investigation under article 282 of the Criminal Court and were lawful. The author’s argument that they constituted criminalization of religious activity essentially reflects disagreement with the decision of the Supreme Court of the Russian Federation of 20 April 2017. The search was carried out to confiscate religious materials as evidence in 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.
The State Party objects that articles 26 and 27 were violated because the searches in the authors’ homes and arrest of Mr. Vilitkevich were based on legitimate grounds set out in the Freedom of Conscience and Religious Organizations Act and the Countering the Extremist Activity Act, which allow restriction of activities of religious organizations. The authors were aware of the Supreme Court decision banning the Administrative Centre of Jehovah’s Witnesses as extremist organization in the territory of the Russian Federation. Nevertheless, they took part, out of religious motives, in carrying out the goals of the extremist organization aimed at confession and spreading of the faith through preaching in public places and residential locations that is carried out propaganda of activities of a banned organization and directly participated in events conducted by members of “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 the public order and security, society and the State.
Authors’ comments on the State party’ observations on admissibility and the merits
On 15 July 2019, the authors provided their comments on the State Party’s observations.
The authors reiterate their arguments on all allegations. They maintain that the cassation appeal procedure in Russia is not an effective remedy and does not need to be exhausted.
The authors update the Committee on new developments 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 pre-trial detention. His house arrest was subsequently extended on seven occasions until 2 March 2019. On 28 February 2019 it was replaced by 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 the opinion No. 11/2019 of the Working Group on Arbitrary Detention in a similar case, arguing that deprivation of liberty in Mr. Vilitkevich’s case was arbitrary and discriminatory.5
- Opinion No. 11/2019 concerning Dmitriy Mikhaylov (A/HRC/WGAD/2019/11) (12 June 2019). ↩
State Party’s additional submission
In its rejoinder dated 2 September 2020, the State Party maintains that there was no violation of the Covenant. It submits that the detention of Mr. Vilitkevich was lawful, based on evidence of his continued organizational activities, and notes that the restrictive measures were progressively mitigated over time. The State Party further maintains that the searches of the premises 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.
Authors’ additional submission
In an additional submission dated 25 August 2022, the authors informed the Committee of new opinions by the UN Working Group on Arbitrary Detention6 and the judgment of the European Court of Human Rights in Taganrog LRO and Others v. Russian Federation,7 which condemned the systemic persecution of Jehovah’s Witnesses in the State Party.
- Working Group on Arbitrary Detention, opinion No. 34/2019 concerning V. Alushkin (Russia), A/HRC/WGAD/2019/34, 20 September 2019; and opinion No. 10/2020 concerning A. Solovyev and Others (Russia), A/HRC/WGAD/2020/10, 6 May 2020. ↩
- European Court of Human Rights, Taganrog LRO and Others v Russia (Application No. 32401/10 and 19 others) (7 June 2022). ↩
Consideration of admissibility
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.
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.
The Committee notes the State Party’s argument that only nine out of 12 authors submitted appeals against the order 5 April 2018 authorizing the search at their homes. In absence of any clarification from the authors in that regard, the Committee finds the claims under article 17 of the Covenant submitted by Ms. Alena Vilitkevich, Ms. Susanna Ilyasova and Ms. Nadezhda Yakimova inadmissible under article 5 (2) (b) of the Optional Protocol.
The Committee also notes the State Party’s claim that the rest of the authors failed to exhaust all available domestic remedies because they have not submitted appeals under the cassation review procedure. The Committee also 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.20 The Committee recalls its jurisprudence 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 offered a reasonable prospect of redress in the circumstances of the present case.8 In the absence of any clarification from the State party as to the effectiveness of cassation review in cases of searches of Jehovah’s Witnesses homes, in particular after the Supreme Court decision of 20 April 2017on banning the religious organization of Jehovah’s Witnesses, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the merits.
- Sasha Maimi Krikkerik v. Russian Federation (CCPR/C/137/D/2992/2017), paras 8.3-8.4. ↩
The Committee notes Mr. Vilitkevich’s claim under article 9 (3) of the Covenant. However, the Committee 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.
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 on merits
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.
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, which states 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.9 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 necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
- General Comment No. 22 (CCPR/C/21/Rev.1/Add.4 ) , para. 3. ↩
The Committee notes the authors’ contention that their homes were searched, religious materials seized and that they were arrested and detained for communal practicing of their religion. 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 religious organisation “Jehovah’s Witnesses”. In line with its general comment No. 22, the Committee considers that these activities form part of the authors’ right to manifest their beliefs.
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 religious organization of Jehovah’s Witnesses was pronounced extremist.
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. The Committee observes, however, that the said decision did not prohibit individual or joint peaceful religious activities by the Jehovah’s Witnesses believers. The domestic decisions on file describe the authors as participating in activities of a “banned organization of Jehovah’s Witnesses” because they were meeting to peacefully practice their religion. There is no differentiation between private practice by individual believers and a membership in a formal administrative entity and 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) of the Covenant.
In regard to the authors’ allegations of discrimination under article 26 of the Covenant, the Committee recalls its General Comment No. 18 (1994), which defines “discrimination” as any distinction, exclusion, restriction or preference which is based on any ground, religion being one of them, 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.10 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.11
In the present case, the Committee notes the State Party’s argument that the restriction of the authors’ rights was based on their promoting of activities of a banned religious organization and that it was necessary to protect public order, security and the rights of others (see para. 4.6 above). The Committee observes from the information before it, that although the Supreme Court decision of 20 April 2017 concerned 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 Jehovah’s Witnesses religion. The information on file and the State Party’s submission indicates that mere participation in the religious meetings of Jehovah’s Witnesses was regarded as an extremist activity based on the 2017 Supreme Court decision. Such interpretation led to the investigation of the authors and prosecution of Mr. Vilitkevich without any indication of extremism in their own actions. In absence of any information that the authors were engaged in a conduct distinct from 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.12 In this light the Committee concludes that the authors’ religious belonging was the sole basis for their prosecution and finds their treatment discriminatory on religious grounds in violation of article 26 of the Covenant.
- See, mutatis mutandis, Waldman v. Canada (CCPR/C/67/D/694/1996), paras. 10 (4) to 10 (6). ↩
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, among other, religious minorities shall not be denied the right, in community with the other members of their group, to profess and practice their own religion. The Committee refers to it General Comment No. 23 (1994) according to which these rights depend on the ability of the minority group to maintain its religion and that States Parties have positive obligations to ensure the survival of religious minority groups.13.
- General Comment No. 23 (CCPR/C/21/Rev.1/Add.5), paras. 6.2 and 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 Investigative Department from 19 October to 19 November 2017 (see para. 2.2 above). As mentioned in para. 9.5 above, rather than pointing out 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 practice their own religion in community with the other members of their religious minority group and threatened the continued existence of their religious community. The Committee considers that in the present case the State Party’s undermined the authors’ ability to maintain their religious identity as Jehovah’s Witnesses, in violation of article 27 of the Covenant.
The Committee notes the authors’ claim under article 9 (1) of the Covenant that, on 10 April 2018, they were compelled to accompany 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 has been 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 its general comment No. 35 (2014) that deprivation of liberty exists where custody is without free consent; individuals who voluntarily attend a police facility and know they are free to leave at any time are not deprived of liberty,14 and that arrest within the meaning of article 9 need not involve a formal arrest as defined under domestic law.15 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 and remaining until release, 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.
The Committee recalls, in line with its general comment No. 35 (2014), that arrest or detention must not only be lawful but also reasonable and necessary in all the circumstances;16 that 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;17 and that the notion of arbitrariness extends beyond unlawfulness and includes elements of inappropriateness, injustice, lack of predictability and due process, as well as reasonableness, necessity and proportionality.18 The Committee further recalls that detention imposed as punishment for the legitimate exercise of rights guaranteed by the Covenant, including freedom of religion, is arbitrary.19 The Committee recalls the authors’ submission that they were detained, and that Mr. Vilitkevich was put in pretrial detention solely for the peaceful exercise of their religion. In line with its findings in para. 9.5 above that there has been no legal basis or any acceptable justification for limitation of the authors’ rights, the 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 pretrial detention of Mr. Vilitkevich was lacking legal grounds and finds it similarly unlawful and arbitrary in violation of article 9 (1) of the Covenant.
- General Comment No 35, para 12. ↩
- Ibid, para. 11. ↩
- Ibid, para. 12, see, for example, communications 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. ↩
- General Comment No. 35, para 17, communication Akhmedov v. Kazakhstan (CCPR/C/143/DR/3098/2018), para. 7.6. ↩
In light of the finding of violation of articles 9 (1) and 18 (1), the Committee will not examine whether the same facts constitute violation of article 17 of the Covenant.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose violation by the State party of articles 9 (1), 18 (1), 26 and 27 of the Covenant.
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 they have incurred in relation to the domestic proceedings and to provide Mr. Vilitkevich with adequate compensation for the time 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.
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 languages of the State party.
Individual opinion by Committee member Hélène Tigroudja (partially dissenting)
I concur with the bold step followed by the Committee in the present Views with regard to the violation of the right to freedom of the authors’ to peacefully practice their religion (article 18 (1) of the Covenant) but also, the violation of the right to equality before the law (article 26) and protection of religious minorities’ rights (article 27 of the Covenant). 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…) suffered by Jehovah Witnesses in the Russian Federation, as well as in other States Parties. For instance, in the Yurlov et al. v. Russian Federation Views dealing with the dissolution of a Jehovah Witnesses’ local organization for distribution ‘extremist’ literature,21 the Committee concluded to the violation of the right to freedom of religion (article 18) and the right to freedom of association (article 22 of the Covenant), but decided not to decide on articles 26 and 27 of the Covenant.22
In the present case, the shift of approach regarding article 27 seems to be implicitly based on that the domestic interpretation and application of the Supreme Court’s decision of 20 April 2017 “resulted in denial of the authors’ right to profess and practice their own religion in community with the other members of their religious minority group and threatened the continued existence of their religious community” (para. 9.9). 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.
The same remark applies to the conclusion of violation of article 26. In para. 9.7 of the Views, the Committee states that “the authors’ religious belonging 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 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.
Nevertheless, I agree with the conclusion of 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 (family and private life and protection of home). In para. 9.12, and following its longstanding but inconsistent practice, the Committee indicates that it ‘will not examine whether the same facts constitute violation of article 17 of the Covenant’. In this regard, I fully concur with the partially dissenting opinion of my colleague Mr. H. Cabrera Quesada in the present case, and I would like to go a bit further. To me, the claim under article 17 is not only admissible but should also lead to a conclusion of violation.
Indeed, as detailed in para. 2.3, ‘police carried out simultaneous raids on their homes. The raids lasted several hours. Property was seized, including religious literature and personal belongings such as telephones and computers.’ The response of the State (para. 4.5) stresses that these searches and seizures were authorized by and grounded in domestic law. In this regard, the Committee should have applied the same standards as those implemented in recent similar cases, Tsoy et al. v. Uzbekistan23 and Maksutova et al. v. Uzbekistan24. 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.’25 It added that : ‘the police’s search of the authors’ homes was disproportionate to the threat of harm allegedly associated with the possession of religious literature.’26
Based on the factual background of the present case, the very same conclusion should have been reached, and it is hardly understandable and illogical to me that the Committee adopted a self-restraint stance on such an important intrusion of 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 to the violation of article 17 and accordingly, it should have requested reparation and guarantees of non-repetition.