Communicated on 6 July 2017
THIRD SECTION
Application no. 73458/11
EVANGELICAL CHRISTIAN CHURCH
NEW GENERATION IN BLAGOVESHCHENSK
against Russia
lodged on 10 November 2011
STATEMENT OF FACTS
The applicant is the Evangelical Christian Church New Generation in the town of Blagoveshchensk (Церковь христиан веры евангельской Новое поколение г. Благовещенска), a religious organisation registered under Russian law in the Amur Region (“the applicant church”). It is represented before the Court by Mr V. Ryakhovskiy and Mr R. Maranov, lawyers practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant church, may be summarised as follows.
On 25 November 1993 the applicant church was officially registered as a religious association having legal-entity status under the RSFSR Religions Act and subsequently re-registered under the new Russian Religions Act.
At the material time the applicant church had approximately 1,000 parishioners (the population of Blagoveshchensk was 220,000), including 150 children who attended the church with their parents. It operated a rehabilitation centre for alcoholics and drug users, a shelter for the homeless and a Sunday school for children.
The services of worship, singing of hymns, sermons and concerts of sacred music were recorded on video and distributed among the followers on DVDs. The recordings were also used for producing television programmes for the church-owned New Generation channel.
In early 2010 the Blagoveshchensk town prosecutor, together with the officers from the anti-extremism department of the Amur Regional Police and representatives of the regional Ministry of Justice and the town education department, carried out an inspection of the applicant church. Relying on the findings of the inspection, the prosecutor charged the applicant church with three administrative offences: producing audio-visual media (DVDs) without licence, absence of the producer’s identification on DVDs, and carrying out educational activities without licence. After a year‑long trial, the applicant church was acquitted of those charges.
In the meantime, the prosecutor forwarded six DVDs to the Amur Medical Academy and asked it to determine “whether any methods of neuro-linguistic programming[1] [had been] used for their production”. The undated experts’ report affirmed that the videos “involved methods of neuro-linguistic programming, including hypnotic induction as its structural part” and that the methods and techniques used affected “the subconscious mind of the individuals who were exposed to the activities of the church”.
On the strength of the experts’ findings, the prosecutor filed an application with the Blagoveshchensk Town Court, seeking to prohibit eighteen DVDs containing a presentation of the church, a televised sermon and documentaries from being circulated on the ground that they could have a negative effect on mental health of viewers. He claimed that the use of psychological and psychotherapeutic methods, including neuro-linguistic programming, amounted to illegal and unlicensed practice of medicine.
The Russian Ombudsman joined the proceedings and made written submissions critical of the prosecutor’s grounds for application and of the professional competence of the experts.
On 4 March 2011 the Town Court granted the application. It referred to the statements by expert witnesses who had described the video recordings as employing “the methods of neuro-linguistic programming and hypnosis” and had defined “neuro-linguistic programming” as the “influence altering the person’s motivation by means of introducing special linguistic programmes into their conscience which allow the convictions, beliefs and ideas to be modified in the desired direction”. The Ombudsman’s submissions were rejected by the Town Court as being “discourteous” (некорректный) to the experts. The court considered it established that the applicant church used, in its activities, “medical technologies, including the technique for exerting psychological and psychotherapeutic influence on the human mind”, which carried “a potential risk of causing damage to the mental health of an indeterminate number of persons”, and that the applicant church distributed audio-visual recordings of the activities that could have “a negative impact on the mental health”. Since the applicant church did not have a medical licence, the Town Court held that it was necessary “to take preventive measures aimed at banning the potentially dangerous activities”: it prohibited the applicant church from using “medical technologies” in its activities and banned the distribution of fifteen DVDs.
The applicant church filed an appeal. It submitted in particular that the Town Court had not specified the nature of the banned “medical technologies” and had not carried out a proper examination of evidence, as it had not watched the DVDs.
On 8 April 2011 the Amur Regional Court quashed the Town Court’s judgment. It held that the failure to watch the DVDs amounted to a substantive breach of the requirement that the evidence be examined directly by the tribunal:
“The court ... did not watch the video recordings of the programmes but confined itself to a visual examination of the disks on which the programmes were recorded; in that way, it substituted personal examination of the primary evidence and its assessment with an assessment of derivative evidence, such as expert reports ...”
The appeal court further held that the Town Court’s judgment was unenforceable because it had not specified the nature of the prohibited medical technologies:
“In the present case ... the court should have identified the specific techniques of neuro-linguistic programming which the [prosecutor] sought to declare illegal, the specific recordings – out of the eighteen under examination – which use that technique and the manner in which that technique may influence the human mind.”
The appeal court also pointed out that the experts’ panel did not include any experts in religious studies. As a consequence, it had not been discussed whether or not “the techniques employed during the sermons were ordinarily and generally accepted in that religious faith”.
Finally, the appeal court criticised the Town Court’s decision to disregard the submissions by the Russian Ombudsman whom the Town Court had previously invited to join the proceedings.
The Regional Court remitted the matter for a new consideration by a differently composed first-instance court.
The prosecutor filed an application for supervisory review, seeking to have the appeal judgment overturned.
On 11 May 2011 the Presidium of the Amur Regional Court quashed the appeal judgment by way of supervisory review and reinstated the Town Court’s judgment of 4 March 2011. It held that the requirement of direct examination of evidence provided for an exception in cases where “such examination, on account of the nature of evidence or the information it contains, put the life or health in danger”. It referred to the experts’ report who concluded that “direct exposure to the activities recorded on video may influence the mind and the subconscious sphere, deplete the mental resources, reduce the reserves of the body and create a psychological dependence on [the applicant church] as a whole and on its activities”. In the Presidium’s opinion, it was no more acceptable to require the Town Court to visualise the video recordings than to require it “to examine directly the narcotic substances (by consuming them)”.
The Presidium further considered that an opinion by a religions expert was not necessary because the issue under examination was whether or not the applicant church had used medical technologies without licence. The judgment was sufficiently clear in the operative part in so far as it prohibited the use of medical technologies, including the techniques of psychological psychotherapeutic influence. Finally, the submissions by the Ombudsman had been given due assessment in the Town Court’s decision.
Following the Presidium’s decision, the Town Court’s judgment of 4 March 2011 was final and enforceable.
On 28 July 2011 a court bailiff formally required the applicant church to stop using the medical technologies which had been banned by the Town Court. The applicant church replied that it did not use any medical technologies in its activities. On 2 November 2011 the bailiff informed the applicant church’s presbyter that he would be held criminally liable for failure to comply with a judicial decision.
B. Relevant domestic law
The Regulation on Licensing of Medical Activities, approved by the Government’s resolution no. 30 of 22 November 2007, establishes that medical activities shall include the provision of services relating to paramedical, out-patient, in-patient, high technology, emergency and rehabilitative assistance.
COMPLAINT
The applicant complains under Article 9 of the Convention, taken on its own and in conjunction with Article 14, that the Russian courts unlawfully restricted its right to conduct sermons and to distribute video recordings of its programmes.
QUESTIONS TO THE PARTIES
Was there a violation of Article 9 of the Convention, taken on its own or in conjunction with Article 14? In particular, did the courts carry out a direct examination of the primary evidence, including the contents of the DVDs? Did they identify the specific parts of the programmes which considered problematic and dangerous for public health? Did they base their conclusions on an acceptable assessment of the facts and what was the factual and scientific basis for the assumption that “neuro-linguistic programming” was an actual medical technology? Did the courts carry out a balancing exercise which would have allowed them to weigh considerations of public health and safety against the countervailing principle of religious freedom? Did they consider the impact of the ban on the rights of the followers of the applicant church (see Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 159, 10 June 2010)?
[1]. Neuro-linguistic programming (NLP) is an approach to communication, personal development, and psychotherapy created by two Americans in the 1970s. Its creators claim a connection between the neurological processes (“neuro”), language (“linguistic”) and behavioural patterns learned through experience (“programming”) and that these can be changed to achieve specific goals in life. The balance of scientific evidence reveals NLP to be a largely discredited pseudoscience which continues however to be marketed by some hypnotherapists and by some companies that organise seminars and workshops on management training for businesses. Scientific reviews show it contains numerous factual errors, and fails to produce the results asserted by proponents. ().
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