The restriction to freedom of religion the court imposed cannot be considered to be “prescribed by law” within the meaning of Article 18.3 of the Covenant.
by Patricia Duval
Article 2 of 7. Read article 1.
The High Court’s dissolution of the Unification Church’s legal corporation on March 4 constituted a radical interference with believers’ right to practice their religion freely.
It is then necessary to determine whether this restriction was prescribed by law to comply with Article 18.3 of the ICCPR and Article 98, para.2, of the Constitution.
Was this limitation prescribed by law?
The High Court decision of dissolution was based on the Law on Religious Associations which provides: “Article 81 (1) When the court finds that a cause which falls under any of the following items exists about a religious corporation, it may order the dissolution of the religious corporation at the request of the competent authority, an interested person, or a public prosecutor, and by its own authority: (i) in violation of laws and regulations, the religious corporation commits an act which is clearly found to harm public welfare substantially…”
It can therefore be concluded that a law expressly provided for the restriction of rights resulting from the dissolution.
However, to meet the requirements of Article 18.3, this restriction must be substantially provided in the law; in other words, the law must meet the criteria of precision and foreseeability so that citizens can anticipate its application and adjust their conduct accordingly.
The 1985 Siracusa Principles laid out the principles governing the limitation provisions in the International Covenant on Civil and Political Rights, which were adopted at an international conference of experts of international law and became an authority on the subject, state that “17. Legal rules limiting the exercise of human rights shall be clear and accessible to everyone.”
It means that limitations must be based on laws that are clear enough and predictable in their application.
This principle applies to restrictions that go beyond those imposed by criminal law. It applies to any measure that restricts the fundamental right to freedom of religion, in accordance with Article 18.3 of the ICCPR and Article 98, para.2, of the Constitution.
In particular, it applies to the article governing the dissolution of religious associations.
In the case of “Vladimir Yurlov and others v. the Russian Federation,” mentioned in the first article of this series, the Human Rights Committee ruled: “9.3 Regarding the first requirement under article 18 (3) of the Covenant that the limitation must be prescribed by law, the Committee notes that the Federal Act on Combating Extremist Activity contains a vague and open-ended definition of ‘extremist activity’ that does not require any element of violence or hatred to be present. It also notes that no clear and precise criteria on how materials may be classified as extremist are provided in the law.”
And it referred to its previous recommendation to Russia on 28 April 2015, urging it to review its legislation (CCPR/C/RUS/CO/7, para. 20.): “The Committee reiterates its previous recommendations (…) that the State party should revise without undue delay the Federal Law on Combating Extremist Activity with a view to clarifying the vague and open-ended definition of ‘extremist activity,’ ensuring that the definition requires an element of violence or hatred and establishing clear and precise criteria on how materials may be classified as extremist. It should take all measures necessary to prevent the arbitrary use of the law and revise the Federal List of Extremist Materials.”
And the Committee ruled: “In the light of the foregoing, the Committee cannot conclude that the law and its interpretation by the domestic courts provided a valid legal basis for the restriction under article 18 (3) of the Covenant.”
Similarly, Article 81.1 of the Japanese law on religious associations does not establish clear and precise criteria for when an act can be found to substantially harm “public welfare.”
The Human Rights Committee has repeatedly recommended that Japan review its legislation and the restrictions on religious freedom imposed in the name of public welfare (8 December 2008, CCPR/C/JPN/CO/5 §10; 20 August 2014, CCPR/C/JPN/CO/6; and 30 November 2022, CCPR/C/JPN/CO/7 § 37).
In 2008, it recommended that: “The State party should adopt legislation defining the concept of ‘public welfare’ and specifying that any restrictions placed on the rights guaranteed in the Covenant on grounds of ‘public welfare’ may not exceed those permissible under the Covenant.”
And in its latest recommendation after its review of Japan in 2022: “37. Recalling its previous recommendations, the Committee calls on the State party to take all the measures necessary: (a) To clearly define the concept of “public welfare”, to ensure that any restriction of freedom of thought, conscience or religion or freedom of expression on grounds of “public welfare” are in accordance with those permitted under the Covenant…”
Despite these urgent calls to clarify its legislation, Japan has never acted on these demands or amended its legislation to bring it into compliance with Article 18 of the Treaty and, consequently, with Article 98, para.2, of its Constitution.
Consequently, Article 81.1, providing for dissolution of religious associations found to harm the public welfare, cannot be considered sufficiently precise to satisfy the requirement that dissolution must be “prescribed by law” within the meaning of Article 18.3 of the Covenant.
This is all the more true given that the courts have interpreted the other condition outlined in the article—namely, “violation of laws and regulations”—as including judgments rendered by civil courts in matters of civil liability, thereby broadening the literal meaning of this provision.
This other requirement can no longer be considered clearly defined, since it has been extended beyond the letter of the law to encompass civil tort decisions.
The High Court ruled that “It is appropriate to construe conduct constituting a tort under Article 709 of the Civil Code as constituting conduct that is ‘in violation of laws and regulations’ within the meaning of Article 81.1(i) of the Religious Corporations Act.”
However, Article 709 of the Code simply provides for civil compensation in cases of tortious conduct: “Any person who, intentionally or through negligence, infringes upon another’s right or legally protected interest is liable to compensate for the resulting damage.”
To support its conclusion, the High Court relied on a ruling issued by the Supreme Court on March 3, 2025, in a related case, in which the Supreme Court concluded that: “However, while Article 709 of the Civil Code does not explicitly prohibit specific acts, an act that constitutes a tort under this provision is deemed illegal under tort law. Such an act violates certain legal norms, and the perpetrator is held liable for damages under Article 709. Considering these points, it is reasonable to interpret an act constituting a tort under Article 709 as falling under the definition of an act that ‘violates laws and regulations’ under Article 81, Paragraph 1, Item 1 of the Religious Corporations Act” (Case of appealed fines imposed during the Ministry’s questioning before dissolution Case of appealed fines imposed during the Ministry’s questioning before dissolution).
The Supreme Court therefore ruled that tortious conduct under civil law involves a violation of “certain legal norms,” which constitutes a “violation of laws and regulations.”
The broadening of the concept of “violations of laws and regulations” to now include violations of “certain legal norms”—without defining them—implies that Article 81, which governs the dissolution of religious associations, falls far short of meeting the “prescribed by law” requirement outlined in Article 18.3 of the Covenant.
This situation is further exacerbated by the fact that case law on dissolution, as well as the interpretation by public authorities, has consistently held that the phrase “violation of laws and regulations” refers to violations of statutory provisions of written law.
It is only after the assassination of former Prime Minister Shinzo Abe and the ensuing media frenzy that the government, in October 2022, changed its interpretation overnight and initiated dissolution proceedings against the Church. This sudden change was politically motivated by media and public pressure and was totally unexpected by the Church.
The High Court responded to the argument about unpredictability by stating that the law on dissolution was sufficiently clear and predictable, given that the civil courts’ case law provided church members with criteria for determining which fundraising behaviors would be considered illegal.
However, in the 26 rulings of tort against the Church, which the dissolution decision is based on (Final Judgments), the solicitation of donations by Church members was found tortious or illegal based on violation of “social appropriateness.”
These tort rulings can be considered unclear and unpredictable, as they were based on violations of “social appropriateness” or “social acceptability” (the same term in Japanese designates both concepts).
The criteria cited by civil courts in the Final Judgments to characterize these violations were as follows: the amount of the donations was deemed socially unacceptable, and belief in karma was considered to instill fear and constitute a form of socially inappropriate mental manipulation; these criteria are vague and highly questionable, as they inevitably lead to discriminatory application. (The criteria will be examined in greater detail below.)
Additionally, the Final Judgments related to very old cases (with facts dating back 30 to 40 years) and, since the Declaration of compliance issued by the Church in 2009, the Court found no recent tort case to rely on. It found, instead, to rule that the dissolution was inevitable, that there was a “risk” that this kind of tortious conduct could happen again in the future. (I will address later the necessity and proportionality of the dissolution order.)
Therefore, the meaning and application of Article 81.1 of the law on religious associations were totally unclear and unpredictable to the members of the Church.
The restriction on the right to freedom of religion imposed by the dissolution order cannot be considered to be prescribed by law within the meaning of Article 18.3 of the Covenant.
Patricia Duval is an attorney and a member of the Paris Bar. She has a Master in Public Law from La Sorbonne University, and specializes in international human rights law. She has defended the rights of minorities of religion or belief in domestic and international fora, and before international institutions such as the European Court of Human Rights, the Council of Europe, the Organization for Security and Co-operation in Europe, the European Union, and the United Nations. She has also published numerous scholarly articles on freedom of religion or belief.
