Communicated on 16 June 2017
THIRD SECTION
Application no. 1377/14
Valeriy Mikhaylovich MILSHTEYN
against Russia
lodged on 9 December 2013
STATEMENT OF FACTS
The applicant, Mr Valeriy Mikhaylovich Milshteyn, is a Russian national, who was born in 1952 and lives in Novosibirsk. He is represented before the Court by Mr D. Shitov, a lawyer practising in Novosibirsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a follower of Elle-Ayat (or Alla-Ayat), a sun‑worshipping religious cult founded in 1990 by Mr Farkhat Abdullayev who was born in the Uyghur Region in Kazakhastan and was known as Farkhat-ata (Father Farkhat). The rituals of the cult include the reading of the Formula of Life written in Uyghur script, consumption of tea with milk and salt (called etken çay, “active tea”), observation of the Sun, and energy cleansing sessions.
In Novosibirsk, followers of Elle-Ayat formed a religious group without legal-entity status. They held meetings and ceremonies twice a month in a culture hall. Attendees were instructed in the use of Farkhat-ata’s self-preservation and self-restoration methods which included drinking large quantities of “active tea” and watching the Sun with the naked eye for three minutes every day.
The applicant was also the publisher of the Zvezda Selennoy (Selenite Star) bi-monthly magazine which had been issued with a publishing licence on 8 April 2002 by the Press Ministry. The magazine mainly contained publications praising Elle-Ayat self-treatment methods and letters from happy followers who had recovered from many afflictions, including cancer.
1. Banning of seven issues of the Zvezda Selennoy magazine
In 2010, during a search ordered in the framework of an investigation into a fraud, an investigator in the Tatarstan Republic uncovered seven issues of the magazine and a book by Mr S. Ziyarov “Illumination. Return from the Future” («Озарение. Возвращаясь из будущего»). The investigator asked a forensic linguist to check the publications for extremist material. The linguist found indications of extremism:
“ – stirring up of social, racial, ethnic or religious discord (negative statements about the world religions verbally violate the symbols of faith venerated by the faithful; this offends religious feelings and provokes discord and intolerant attitude to people who do share the views of Alla-Ayat);
– propaganda of an exceptional nature, superiority or deficiency of persons on the basis of their social, racial, ethnic, religious or linguistic affiliation or attitude to religion (instilling the humiliating idea that people who are not part of Alla-Ayat are deficient and that followers of Alla-Ayat are superior to other people);
Rhetorical figures and stylistic methods used in the texts seek to suppress an independent, critical thinking, to instil false paradigms and, eventually, to secure unquestioning obedience to the leaders of Alla-Ayat.”
Relying on the linguist’s findings, the Naberezhnye Chelny town prosecutor filed an application with the Town Court for banning of the seven issues of the magazine and the book.
On 2 May 2012 the Naberezhnye Chelny Town Court considered the application ex parte and granted it, relying on the Suppression of Extremism Act and reiterating the linguist’s findings verbatim as the grounds for banning the printed materials.
The applicant complained to the Supreme Court of Tatarstan that he had not been informed about the date of the hearing which affected his rights as the editor-in-chief of the Zvezda Selennoy magazine.
On 14 February 2013 the Supreme Court agreed with the applicant that his absence undermined the fairness of the proceedings. It quashed the Town Court’s judgment of 2 May 2012 and replaced it with its own which also entirely rested on the linguist’s findings.
On 17 October 2013 a judge of the Supreme Court of Tatarstan refused the applicant leave to appeal to the cassation instance.
2. Banning of the applicant’s group
In parallel proceedings, the Novosibirsk regional prosecutor asked a court of general jurisdiction to ban the Elle-Ayat group as an extremist organisation causing harm to citizens’ health and inducing them to refuse medical assistance on religious grounds.
On 25 February 2013 the Novosibirsk Regional Court granted the prosecutor’s application. It held at the outset, relying on the findings of a composite psychological, linguistic and religious study, that the activities of the Elle-Ayat group, of which the applicant was one of the leaders, were religious in nature and had all the trappings of a religious worldview, including the divine status and superpowers ascribed to the figure of Farkhat-ata, performance of rituals and religious conduct.
The Regional Court considered that the charge of extremist activities was established since the religious practice of the group involved reading of the Selenite Star magazines, including those that had been declared to be extremist materials by the above-mentioned Supreme Court’s decision of 14 February 2013.
On the charge of causing harm to health and inducing persons to refuse medical assistance, the court called several witnesses whose family members had been diagnosed with cancer and had sought help from the Elle-Ayat group. Group members had told them to “throw away all medicine”, drink up a lot of “active tea”, observe the Sun, buy the Selenite Star magazines and hold them close to the diseased body parts. Forensic medical experts studied their medical records posthumously and concluded that a refusal of science-based medical treatment, such as chemotherapy, had “accelerated the progression of the disease”. The court also took note that a group member had been convicted and given a fine for unlicensed practice of folk medicine (faith healing) and that a composite psychological and psychiatric study identified calls for rejecting science-based medicine and for refusing medical assistance, as well as highly suggestive linguistic manipulations in the Selenite Star magazines.
On the basis of section 14 § 2 of the Religions Act, the Regional Court pronounced a ban on the activities of the Elle-Ayat religious group. The applicant filed an appeal.
On 19 June 2013 the Supreme Court of Russia reversed the Regional Court’s decision in the part relating to the charge of extremism. It pointed out that mere reading of extremist material was not reprehensible under domestic law. Nevertheless, it considered that the inducement to refuse medical assistance on religious grounds had been convincingly established and that it was sufficient to uphold the ban on the group’s activity.
3. The remaining issues of the magazine
In March 2013 the Novosibirsk regional prosecutor filed an application with the Leninskiy District Court in Novosibirsk for an order banning the remaining fifty issues of the Zvezda Selennoy magazine as extremist material. In total, fifty-seven issues had been published between January 2002 and May 2011, of which seven were pronounced to contain extremist material in the proceedings in Tatarstan. The prosecutor claimed that the magazines incited hatred and religious discord, advocated the rejection of the Bible and called for relying on Farkhat-aga’s treatment methods. He submitted a linguist’s report dated 2 August 2013 which found indications of extremism in twenty-three issues of the magazine.
On 28 October 2013 the District Court dismissed the prosecutor’s application. It held, firstly, that the Supreme Court’s decision banning seven issues of the magazine did not have the force of res judicata in relation to the other issues. Secondly, it noted that the linguists found no indications of extremism in twenty-seven issues of the magazine and rejected that part of the application. As regards the remaining twenty-three magazines –
“... the court takes note of the experts’ opinion that certain statements may contain indications of extremism but [reiterates] that the court is competent to give its assessment ...
The findings by the expert panel refer to a negative appraisal of the activities of ‘physicians’, ‘medics’, ‘doctors’, proponents of the ‘official medical science’, ‘scientists’, ‘clergy’, ‘[Orthodox] priests’, ‘mullahs’ etc. and a positive appraisal of the Elle-Ayat followers. It must be borne in mind that the acceptance of any given teaching is linked to a choice from various alternatives. The chosen alternative is accepted as the best one and is seen positively, whereas the rejected alternatives are seen negatively. A negative or positive appraisal of alternatives is a basic function of human activity. A positive or negative appraisal of any given phenomenon is not indicative, on its own, of an extremist disposition of the appraiser. Had it been otherwise, all the world religions that advocate their own righteousness in comparison to others, science writers and educators who give negative appraisal to ignorance and pseudo-science, doctors who criticise self-medication and miracle treatments – all of them would have been declared extremists ...
Accordingly, the fact that the Elle-Ayat followers, when discussing the choice of their teaching in their stories and publications, make statements ... to the effect that the science, official medicine or this or that religion did not help them, is not indicative of the extremist nature of such statements ... [Extremism] is [a form of] extreme views that go beyond the publicly accepted norms. A criticism of science, medicine or religion which may be quite acceptable in a democratic society based on the rule of law must be distinguished from incitement of discord which is filled with hatred and elements of aggression ...
The distinction between hatred and criticism lies in the destructive nature of the former ... Not one of the statements contained in the above-mentioned issues of the Selenite Star magazine concludes or appeals for extermination or persecution of scientists, doctors, priests ... Authors of the publications say that it is necessary to find a different way towards good health, a better one, in their view, but this is quite acceptable in a democratic society ...
Summing up, it can be concluded that a negative appraisal of the activities of ‘scientists’, ‘doctors’ and ‘priests’ and an approval of the choice of the Elle-Ayat teaching may not necessarily accord with the established traditional views and opinions and may also – because of the particular emotional experience of those individuals whose letters were published in the magazine – appear unpopular, shocking or provocative, but they are not extremist. The negative appraisal does not relate to ‘scientists’, ‘doctors’ and ‘priests’ as persons or individuals but to their activities which are pointless, in the authors’ opinion ... The impugned issues of the Selenite Star magazine do not feature any calls for persecution, extermination or other violations of rights of any religious or social groups. It follows that there are no grounds for pronouncing them extremist.”
On 17 December 2013 the Novosibirsk Regional Court rejected the prosecutor’s appeal against that decision.
B. Relevant domestic law and practice
1. Suppression of Extremism Act (Law no. 114-FZ of 25 July 2002)
The relevant provisions of the Act read as follows:
Article 1. Basic notions
“For the purposes of the present Act the following basic notions are used:
1) extremist activity/extremism:
...
incitement of social, racial, ethnic or religious discord;
propaganda of an exceptional nature, superiority or deficiency of persons on the basis of their social, racial, ethnic, religious or linguistic affiliation or attitude to religion;
violation of human and civil rights and freedoms and lawful interests in connection with the person’s social, racial, ethnic, religious or linguistic affiliation or attitude to religion ...
2) extremist organisation: a public or religious association or other organisation in respect of which and on grounds provided for in the present Act, a court has made a ruling having entered into legal force that it be liquidated or its activity be banned in connection with the carrying out of extremist activity;
3) extremist materials: documents intended for publication or information on other media calling for extremist activity to be carried out or substantiating or justifying the necessity of carrying out such activity, including works by leaders of the National Socialist German Workers’ Party, the [National] Fascist Party of Italy, publications substantiating or justifying ethnic and/or racial superiority ...”
Article 9. Liability of public or religious associations or other organisations for carrying out of extremist activity
“The creation and functioning of public or religious associations or other organisations whose objectives or activities are aimed at carrying out extremist activity shall be prohibited in the Russian Federation.
In the event ... of the carrying out by public or religious associations ... of extremist activity resulting in a violation of human and civil rights and freedoms, damage to an individual, citizens’ health, the environment, public order, public safety, property, the lawful economic interests of physical individuals and/or legal entities, society and the State or creating a real threat of causing such damage, the corresponding public or religious association or other organisation may be liquidated and the activity of the public or religious association that is not a legal entity may be banned by a judicial decision on the basis of an application by the Prosecutor General of the Russian Federation or the respective regional prosecutor ...”
2. Religions Act (Law no. 125-FZ of 26 September 1997)
The relevant provisions of the Religions Act read as follows:
Section 14: Suspension of the functioning of a religious association, dissolution of a religious association and banning of the activities of a religious association in the event they committed a breach of law
“1. Religious organisations may be dissolved ...
by a judicial decision in the event of repeated or gross violations of the provisions of the Russian Constitution, of this federal act or of other federal acts ...
2. The grounds for dissolving a religious organisation and banning the activities of a religious organisation or a religious group by judicial decision are:
[1] breach of public security and public order;
[2] actions aimed at engaging in extremist activities ...
[7] infringement of the personality, rights and freedoms of citizens;
[8] infliction of harm, established in accordance with the law, on the morals or health of citizens, including by means of narcotic or psychoactive substances, hypnosis, or committing depraved and other disorderly acts;
[9] encouragement of suicide or the refusal on religious grounds of medical assistance to persons in life- or health-threatening conditions ...”
3. Position of the Supreme Court of the Russian Federation
In its case-law summary relating to extremist cases (Resolution no. 11 of 28 June 2011), the Plenary Supreme Court gave in particular the following guidance:
“23. If need be, a linguist may be appointed to carry out a study into the purposes of the information materials. In addition to linguists, other specialists, including psychologists, historians, scholars of religion, anthropologists, philosophers, political sociologists, may be asked to join the study. In that case, a composite study will be requested.
When requesting a forensic study in criminal cases relating to extremist offences, it is not allowed to ask the expert to determine questions of law relating to the characterisation of the offence, over which the trial court has exclusive competence. In particular, the expert may not be asked to determine whether the text contains calls for extremist activities or whether it aims to incite hatred or discord. ...”
COMPLAINTS
The applicant complains under Articles 9, 10, 11 of the Convention, taken alone and in conjunction with Article 14, about the judicial decisions declaring several issues of the Selenite Star magazine to be extremist material and banning the activities of the Elle-Ayat religious group.
The applicant also complains under Article 6 of the Convention that the proceedings on the application for banning of the activities of the applicant’s group were not conducted in a fair and adversarial manner, that he was not allowed to adduce evidence in defence of his position, that his evidence was not considered by the courts, and that he was unable to put questions to the expert witnesses for the prosecutor.
QUESTIONS TO THE PARTIES
1. Was there a violation of Article 10 of the Convention as regards the decision to declare seven issues of the Zvezda Selennoy (Selenite Star) magazine to be extremist material? In particular, did the domestic courts adduce “relevant” and “sufficient” reasons for the interference? Did they base their conclusions on an acceptable assessment of the facts? Did they specify which parts of the publications were problematic? Did they draw their own conclusions from the linguistic study of the publications (see point 23 of the Supreme Court’s resolution no. 11 of 28 June 2011)?
2. Was the ban on the activities of the applicant’s group (the Elle-Ayat group) compatible with Article 11 of the Convention, read in the light of Article 9? In particular, did the domestic courts carry out a balancing exercise which would have allowed them to weigh considerations of public health and safety against the countervailing principle of personal autonomy and religious freedom (see Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 134 et seq., 10 June 2010)? Did they consider the impact of the ban on the rights of the Elle-Ayat followers (ibid., § 159)?
3. Were the proceedings on the application for banning of the activities of the applicant’s group conducted in a fair and adversarial manner, as required by Article 6 of the Convention? In particular, did the applicant have an effective opportunity to adduce evidence in defence of his position and was it considered by the courts? Did he have an effective opportunity to put questions to the expert witnesses for the prosecutor, either before or during the hearing?
4. Was there a violation of Article 14, taken in conjunction with Article 9, 10 and 11?
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