Communicated on 19 October 2017
THIRD SECTION
Applications nos. 22081/11 and 59476/12
Yuriy Vadimovich SAMODUROV and Andrey Vladimirovich YEROFEYEV against Russia
and Aleksandr Andreyevich SAVKO against Russia
lodged on 2 April 2011 and 13 August 2012 respectively
STATEMENT OF FACTS
The applicants in the first case, Mr Yuriy Vadimovich Samodurov and Mr Andrey Vladimirovich Yerofeyev, are Russian nationals, who were born in 1951 and 1956 respectively and live in Moscow. They are represented before the Court by Ms K. Kostromina and Ms A. Stavitskaya, lawyers practising in Moscow.
The applicant in the second case, Mr Aleksandr Andreyevich Savko, is a Russian national, who was born in 1957 and lives in Moscow. He is represented before the Court by Mr D. Gaynutdinov, a lawyer practising in Moscow.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The Forbidden Art exhibition
From 7 to 31 March 2007 the Andrey Sakharov Museum in Moscow hosted the exhibition “Forbidden Art 2006” («Запретное искусство – 2006») organised by Mr Samodurov, the museum director, and curated by Mr Yerofeyev, head of contemporary art department at the State Tretyakov Gallery. The exhibits included over twenty art works that Moscow art museums or galleries had refused to display publicly the previous year. The exhibition was planned as a multi-year project featuring every time the last year’s censored art works and its stated purpose was to monitor and to discuss the institutionalised censorship in the art world.
A cardboard screen separated the exhibits from visitors who could observe them through tiny holes in the screen (see Figure 1 in the Appendix)[1].
The exhibits included, among others:
- a graphic work showing obscene words printed on top of drawings from a children’s storybook (see Figure 2);
- a metal cast representing a three-letter obscene word (see Figure 3);
- a colour painting of a kitchen table carrying the caption “Fuck and multiply”, paraphrasing the maxim “Be fruitful and multiply” from Genesis 1:28 (see Figure 4);
- a colour graphic composition representing an explosion with a Russian expletive that means a powerful blow or impact (see Figure 5);
- a collage of a fast-food restaurant’s logo, the face of Jesus Christ and the caption “This is my body” (see Figure 6);
- a collage in which a golden setting of an Orthodox icon of Our Lady with a Child was filled in with black caviar (see Figure 7);
- two coloured prints (“palimpsests”) from the series “Mickey Mouse’s trip through the history of art” featuring Biblical drawings by a nineteen-century German painter Julius Schnorr von Carolsfeld, Sermon on the Mount and Taking of Christ at the Garden of Gethsemane, in which Christ was replaced with Mickey Mouse (see Figure 8);
- a photo collage combining a Christian crucifix with the Soviet Order of Lenin (see Figure 9).
A group of Orthodox believers, of whom three had visited the exhibition, complained to the prosecutor that the exhibition had offended their religious feelings.
In May 2008, Mr Samodurov and Mr Yerofeyev were charged with an offence under Article 282(2)(b) of the Criminal Code (see the Domestic Law below). The prosecution’s case was that the applicants had conspired, using their official positions, to organise a publicly accessible exhibition of selected works that incited hatred and discord and abased human dignity of Orthodox Christians. The exhibits allegedly undermined their dignity by featuring obscenities and expletives which, in addition to being an affront to public morals, had been placed next to Christian religious symbols, and also by presenting a juxtaposition of holy images of Jesus Christ and Our Lady and profane images, such as a hamburger or black caviar, or ideologically opposed images, such as a Soviet decoration or a headline from a Soviet newspaper. In the prosecutor’s view, Orthodox Christian visitors to the exhibition had suffered “an excessively violent mental trauma that carried a direct threat to the integrity of their personality and [caused] a destruction of their worldview”.
On 12 July 2010 the Taganskiy District Court in Moscow found Mr Samodurov and Mr Yerofeyev guilty as charged. In so finding, the court referred to identically worded statements by dozens of Christian Orthodox believers who claimed that “a majority of people did not need to visit the exhibition to feel deeply offended, it was sufficient for them to find out about its existence” and that the exhibition was “anti-Orthodox” and “blasphemous” (p. 10 of the judgment). Professional experts, a philologist, a psychologist and an art critic, whose reports had been commissioned by the prosecution, concluded that the viewers’ perception of works had three stages: the first one being amazement and shock leading to the decision to examine the exhibit closer, the second one a closer inspection of the work and interpretation of the artist’s intention, and the third one “realisation of the offensive message and re-interpretation of what has been seen connected with the threat of losing reference points in life and reconsideration of moral values” (p. 43). The experts stated that the organisers had incited hatred and discord between “Orthodox Christians and their supporters, on one hand, and the authors of the works, the exhibition organisers and their supporters, on the other hand” and that the placement of exhibits containing expletives or profanities close to religious symbols offended religious feelings and degraded human dignity of Orthodox Christians (p. 44). The court rejected the statements by the witnesses for the defence, noting that “Orthodox believers and visitors did not have specialist knowledge of art, unlike artists, art scholars and [other witnesses for the defence and the defendants], and they were entitled to their own opinion about the exhibits which offended and degraded their religious feelings” (p. 51). The court concluded:
“The court in no way seeks to assume the role of an art censor and acknowledges the freedom of artistic expression, yet it considers that ... the Russian citizen and his rights and freedoms are the supreme value and the state has a duty to protect them ... Taking into account the constitutional protection of personal dignity of all citizens, the actions by the defendants in organising the Forbidden Art 2006 exhibition connected with public demonstration of works that incited hatred to the exhibition organisers and their supporters, offended religious feelings of citizens and undermined dignity of a large number of citizens on account of their religious affiliation, are criminally reprehensible, as the right to freedom of conscience and religion must be protected by the state ...
The defendants’ intent to commit actions inciting hatred and discord ... is evident from the following: the exhibition ... was held in a public space, it was free and accessible. The organisers ... were fully aware of a negative public reaction to the exhibition and its works as they had deliberately collected the works that had been previously banned from demonstration in exhibition halls, museums and galleries because of their negative impact on the viewer. The organisers continued public access until the last day of its planned opening, 31 March 2007, despite a manifestation against the exhibition held on 28 March 2007 ...
The psychological and art critic reports concluded that the arrangement of the exhibition with the use of a screen with holes could not absolve the organisers of the moral and legal responsibility and shift it onto the viewer because the objective of the exhibition was to legitimise the exhibited works and the organisers’ right to exhibit them, and the purpose of that arrangement was to incite the viewer to look through the hole beyond the screen ... and in that way to engage the viewer increasing the negative impact of the contents of the works ...
The court considers baseless the arguments by the defence that the believers had incited religious hatred and discord by their own actions, such as filing complaints with law-enforcement authorities, sharing among them photographs of the works and a template letter to the prosecutor, because the believers objectively did not have the purpose of inciting hatred or discord, they shared the negative emotions that overwhelmed them, felt indignant about the exhibition and fought against it and the organisers by all legal means.” (pp. 51-54)”
The court sentenced Mr Samodurov to a fine of 200,000 Russian roubles (RUB, 5,160 euros (EUR)) and Mr Yerofeyev RUB 150,000 (EUR 3,870).
On 4 October 2010 the Moscow City Court upheld the conviction on appeal, rejecting the grounds of appeal in a summary fashion.
B. Banning of Mr Savko’s work
On 30 June 2011 the Tarusa Town prosecutor asked the Zhukovskiy District Court in the Kaluga Region to pronounce Alexandr Savko’s work Sermon on the Mount to be extremist material.
On 18 August 2011 the District Court granted the application. That decision was later set aside after Mr Savko had complained that he had not been informed of the proceedings.
On 20 December 2011 the District Court held a new hearing and granted the application once again. Referring to the experts’ reports that had been used in the criminal proceedings against Mr Samodurov and Mr Yerofeyev, it held as follows:
“The main substantive content and objective of this exhibit is to send the message ... that the images of Jesus Christ and Mickey Mouse are of equal value and equal worth, that the cultural and moral contents of Orthodox Christianity and that of any media product, such as a Mickey Mouse cartoon, are equivalent, and that Orthodox Christianity is a kind of cartoonish fable, an entertaining story that does not have any valuable spiritual, moral, religious or cultural content. It follows that Mr Savko’s work represents an utterly cynical insult that ridicules religious convictions and religious feelings of believers and debases them on account of their religious affiliation ...
Any deliberate distortion of religious symbols is an offence to religion, and in this case the collage is made up of images that are antagonistic to the fundamental values of the Christian faith ... The image of Christ is substituted with a character from the Mickey Mouse cartoon ... the notion of a ‘mouse’ being associated with the ‘smallest’ creature which substitutes the image of the Creature [capital in the original] which is the ‘largest’ one in the Christian context, the God ... Rude treatment of holy symbols of any religion that millions of people hold dear and sacred is in itself a form of violent assault on the mind and feelings of these people. This exhibit emanates negative impulses which provoke an aggressive or, at best, disrespectful attitude to those and other manifestations of the religion and cult ... and contempt to the believers who profess them ...
In the light of the above, the court considers that Mr Savko’s graphic work ... contains graphic information calling for extremist activities, such as propaganda of inferiority on account of religious affiliation – Orthodox Christian believers in the instant case – and a violation of rights and legitimate interests of persons on account of their religious affiliation ... The court reaches the conclusion that the graphic work breaches the rights and legitimate interests of ... Christian believers, that it contains information calling for extremist activities and incitement of social and religious hatred and animosity to the way of life, culture, traditions and religious rites, which undermines the authority of the Russian Federation and the State’s duty to uphold human rights and freedoms ...”
Counsel for the applicant filed an appeal.
On 14 February 2012 the Kaluga Regional Court rejected the appeal, finding that Mr Savko’s work was of an “offensive and provocative nature”, that it had contributed to creating “a local conflict” surrounding the Forbidden Art exhibition, and it had been used “for criminal activities aimed at inciting hatred and discord and undermining human dignity on account of religious affiliation”.
RELEVANT DOMESTIC LAW
The relevant provisions of the Criminal Code read as follows:
Article 282: Incitement of hatred or discord as well as abasement of human dignity
“1. Acts aimed at the incitement of hatred or discord, as well as abasement of dignity of a person or a group of persons on the ground of their sex, race, nationality, language, origin, attitude to religion, as well as affiliation to any social group, if these acts have been committed in public or with the use of mass media, shall be punishable ... or by imprisonment for a term of up to two years.
2. The same acts committed:
(a) with the use of violence or with the threat of its use;
(b) by a person through his official position;
(c) by an organised group
shall be punishable ... by imprisonment for a term of up to five years”.
COMPLAINT
The applicants complain under Article 10 of the Convention about an unjustified restriction on their right to freedom of expression.
QUESTIONS TO THE PARTIES
Was there a violation of Article 10 of the Convention –
(1) as regards the criminal conviction of Mr Samodurov and Mr Yerofeyev on the charge of incitement of hatred and discord?
(2) as regards the banning of Mr Savko’s work as extremist material?
[1]. Note by the Registry. Graphic illustrations are not reproduced in the text document.
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