Information Note on the Court’s case-law 221
August-September 2018
Ibragim Ibragimov and Others v. Russia - 1413/08 and 28621/11
Judgment 28.8.2018 [Section III]
Article 10
Article 10-1
Freedom of expression
Ban on books by well-known classic Muslim theologian, declared extremist literature: violation
Facts – The applicants published or commissioned the publication of the books from the Risale-I Nur Collection, an exegesis on the Qur’an written by well-known Turkish Muslim scholar Said Nursi in the first half of the 20th century. Muslim authorities in Russia and abroad, as well as Islamic studies scholars, all affirm that his texts belong to moderate mainstream Islam, advocate tolerant relationships and cooperation between religions, and oppose any use of violence. The books have been translated into 50 languages and are available in many countries, both in paper and on the Internet. They were used for religious and educational purposes in Russian mosques and medreses. The books were declared to be extremist literature, resulting in a ban on their publication and distribution, and seizure of undistributed copies, in accordance with the Suppression of Extremism Act. The applicants unsuccessfully challenged this decision.
Law – Article 10 interpreted in the light of Article 9: The interference with the applicants’ right to freedom of expression, interpreted in the light of their right to freedom of religion, had a legal basis in the Suppression of Extremism Act. Noting the opinion of the European Commission for Democracy through Law (the Venice Commission), which had found the definition of “extremist activity” to be too broad, imprecise and open to different interpretations, the Court left open the question whether the interference with the applicants’ right to freedom of expression could be regarded as “prescribed by law”. The contested measures sought to pursue the legitimate aims of preventing disorder and protecting territorial integrity, public safety, and the rights of others.
While the domestic law did not require any element of violence for an activity to be qualified as extremist, the domestic courts had declared Said Nursi’s books “extremist” on the grounds of their alleged incitement to “religious discord” and propaganda about people’s superiority or deficiency in their attitude toward religion. In making its determination, the domestic courts had not made an independent assessment of the texts, but merely relied on disputed expert opinion, which went far beyond resolving merely linguistic and psychological issues and provided the crucial legal findings as to the extremist nature of the books. The courts had not discussed the necessity of banning the books, having regard to the context in which they were published, their nature and wording, and their potential to lead to harmful consequences. The domestic courts had not even mentioned the effect of the ban on the applicants’ rights under Articles 9 and 10 of the Convention. Moreover, they had summarily rejected all evidence submitted by the applicants, which was plainly relevant for the assessment of whether banning the books had been justified: the opinions of Muslim authorities and Islamic studies scholars who had explained the historical context in which the books had been written, their place in the body of Islamic religious literature, in particular the fact that they belonged to moderate rather than radical Islam, their importance for the Russian Muslim community and their general message of tolerance, interreligious cooperation and opposition to violence.
Regarding the first application (no. 1413/08), since the domestic courts had not even indicated what passages they considered “extremist”, it was impossible for the applicants to re-publish the books in question after editing out the troublesome passages. The domestic courts’ decisions therefore amounted to an absolute ban on publishing and distributing the books.
In the second application (no. 28621/11), the domestic court had concluded that the book at issue in this case treated non-Muslims as inferior to Muslims in so far as it described Muslims as “the faithful” and “the just”, and everyone else as “the dissolute”, “the philosophers”, “the idle talkers” and “little men”. The book also proclaimed that not to be a Muslim was an “infinitely big crime”. However, although, according to the experts, such statements were common in monotheistic religious texts, the court had taken them out of context and failed to assess them in the light of the book as a whole. Although the impugned statements clearly promoted the idea that it was better to be a Muslim than a non-Muslim, it was significant that they did not insult, hold up to ridicule or slander non-Muslims; nor did they use abusive terms in respect of them or of matters regarded as sacred by them.
Furthermore, neither the domestic court nor the Government had referred to any circumstances indicative of a sensitive background at the material time – such as the existence of interreligious tensions or an atmosphere of hostility or hatred between religious communities in Russia – against which the impugned statements could risk unleashing violence, giving rise to serious interreligious frictions or leading to similar harmful consequences. The statements had not been shown to be capable of inciting violence, hatred or intolerance. While the author’s intention was to convince the readers to adopt his religious beliefs, that was insufficient, in the Court’s view, to justify banning the book. It had never been argued that the content of the book amounted to, or encouraged, improper proselytism, that is attempting to convert people through the use of violence, brainwashing or taking advantage of those in distress or in need. Nor had it been claimed that the book advocated any activities going beyond promoting religious worship and observance in private life of the requirements of Islam, or sought to reorganise the functioning of society as a whole by imposing on everyone its religious symbols or conception of a society founded on religious precepts.
In conclusion, the Court found that the domestic courts in both applications had not applied standards which were in conformity with the principles embodied in Article 10, and had not provided “relevant and sufficient” reasons for the interference. It rejected the Government’s preliminary objection under Article 17.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 to Mr Ibragimov in respect of non-pecuniary damage; no claim submitted by other applicants in respect of damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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