Communicated on 30 August 2017
THIRD SECTION
Applications nos. 39879/12 and 5956/13
Mikhail Vladimirovich SINITSYN and Sergey Nikolayevich ALEKHIN against Russia
and David MATAS against Russia
lodged on 30 May 2012 and 1 January 2013 respectively
STATEMENT OF FACTS
The applicants in the first case, Mr Mikhail Vladimirovich Sinitsyn and Mr Sergey Nikolayevich Alekhin, are Russian nationals, who were born in 1969 and 1975 respectively and live in Krasnodar and Novorossiysk. Mr Alekhin is a lawyer.
The applicant in the second case, Mr David Matas, is a Canadian national, who was born in 1943 and lives in Winnipeg, Manitoba. Mr Matas is a lawyer.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 31 January 2007 the applicant Mr Matas and his co-author, Mr Kilgour, a former Canadian MP, published a book, Bloody Harvest: Revised Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China (“the Matas-Kilgour report”). The subject-matter of the book is the outcome of an independent investigation of several years into allegations of unlawful organ harvesting of Falun Gong practitioners and other political prisoners in Chinese labour camps, so their organs can be sold to people needing transplants. The report was banned in China but translated into nineteen languages and is available from various publishers, the authors’ web-site and global retailers such as Amazon.
The applicants Mr Sinitsyn and Mr Alekhin are the followers of the Falun Gong movement. In 2008, they were among those who distributed copies of the Matas-Kilgour report, a Russian translation of Li Hongzhi’s book Zhuan Falun, and two pamphlets, “Falun Dafa in the World” and “Torch relay to highlight [Chinese] human rights failures”.
Falun Dafa (or Falun Gong) is a Chinese spiritual practice that combines meditation and exercises with a moral philosophy. It had been first taught publicly in Northeast China in 1992 by Mr Li Hongzhi and enjoyed support from Chinese authorities who later came to see it as a potential threat and banned it. The main symbol of the practice is the Falun (“the Dharma wheel”). It is conceptualised by an emblem consisting of one large and four small Swastika symbols, representing the Buddha, and four small yin-yang symbols of the Daoist tradition. The title of Li Hongzhi’s book, which is the Falun Gong’s main text, Zhuan Falun (“turn the Dharma wheel”), means to preach the Buddhist doctrine.
The Krasnodar regional prosecutor filed an application with the Pervomayskiy District Court for declaring the Matas-Kilgour report, the Zhuan Falun book and the two pamphlets to be extremist material. He relied on reports by two experts, a linguist and a psychologist, who found that all publications contained statements “advocating enmity and hostility to people who were not members of that religious association”, that the Zhuan Falun book proclaimed the superiority of Falun Gong followers over everyone else who was not a member of the movement, that the Torch pamphlet suggested “hostile action to the official Chinese authorities”. Moreover, the experts concluded that persons who “had no specialist knowledge of religion, history, culture or art” and who “had no prior knowledge of the text or its meaning” could confuse the Falun emblem with Nazi symbols.
On 26 August 2008 the District Court granted the prosecutor’s application, reproducing a summary of the experts’ findings.
The applicants Mr Alekhin and Mr Sinitsyn and the Krasnodar and St Petersburg centres of Falun Dafa complained to the courts that they had not been informed of the proceedings on the prosecutor’s application and asked it to fix a new time-limit for filing an appeal. On 4 March 2009 their request was granted.
On 29 April 2009 the Krasnodar Regional Court quashed the District Court’s judgment. It found that the District Court did not examine the basic tenets of the Falun Dafa’s beliefs and relied exclusively on the experts’ reports which had been prepared in breach of the requirements of the Code of Civil Procedure, without affording the parties an opportunity to designate experts and to put questions to them. Moreover, the District Court did not examine the contents of the books or pamphlets or the articles of association of the Falun Dafa study centre. The Regional Court remitted the matter for a fresh examination.
The District Court stayed the proceedings and commissioned a new expert study which was completed on 30 September 2011. Two experts concurred that the Zhuan Falun fostered a negative attitude to other faiths, that it was capable of “restructuring the reader’s worldview, lower his critical approach to the information on account of many unclear and ambiguous non-traditional terms and notions, and inveigle the reader into accepting the interpretation attributed to them by the teacher’s decisive authority”. In the experts’ view, the Matas-Kilgour report and the pamphlets created “a negative image of China, its social and political system, representatives of official bodies, medical personnel, servicemen and others”. Although the materials did not contain any Nazi attributes or symbols as such, the experts concluded that the Falun emblem “was similar, in the mind of Europeans, to the Nazi swastika to the point of confusion”.
On 11 October 2011 the District Court resumed the proceedings on the prosecutor’s application, without notifying Mr Alekhin of the hearings that were held on 18, 21 and 27 October.
On 27 October 2011 the District Court issued a new judgment by which it pronounced the book, the report and two pamphlets to be extremist material. It relied exclusively on the findings of the 2008 and 2011 expert reports and rejected the applicants’ evidence as coming from an interested party.
On 22 December 2011 the Krasnodar Regional Court rejected an appeal against the District Court’s judgment. Cassation appeals by Mr Alekhin and Mr Sinitsyn were rejected on 19 March and 2 April 2012 by the Presidium of the Regional Court and on 4 July 2012 by the Supreme Court.
In June 2012, the Russian Ombudsman intervened on behalf of the Falun Gong movement and asked the Supreme Court of Russia to review the lower courts’ decisions. His application was rejected on 5 July 2012 by a judge of the Supreme Court who stated that no legal grounds to re-open the proceedings.
The authors of the Matas-Kilgour report asked the Russian Ombudsman to apply to the Constitutional Court on their behalf. On 15 October 2014 the Ombudsman replied that such an application would be pointless.
COMPLAINTS
The applicants complain under Articles 9 and 10 of the Convention about the banning of the foundational book of the Falun Dafa movement, the Matas-Kilgour reports about egregious violations of human rights of the Falun followers and two pamphlets as extremist material.
QUESTIONS TO THE PARTIES
1. What is the relationship between the applicants Mr Alekhin and Mr Sinitsyn, on the one hand, and the Falun Gong (Falun Dafa) movement, on the other hand? On what grounds did the District Court consider that the banning order of 26 August 2008 had affected the rights of Mr Alekhin and Mr Sinitsyn and allowed them to submit an appeal and to join the proceedings? The parties are requested to produce a copy of the decision of 4 March 2009. Did the decision to ban the Falun Gong literature amount to an interference with their rights under Articles 9 and 10 of the Convention?
2. When did the applicant Mr Matas find out that the report of which he was a co-author was banned in Russia? Did he have at his disposal a domestic remedy within the meaning of Article 35 § 1 of the Convention that could have enabled him to challenge the banning decision and to have his arguments examined by the Russian courts?
3. Was there a violation of Articles 9 or 10 of the Convention in connection with the decision to pronounce the Zhuan Falun book, the Matas-Kilgour report and two pamphlets to be extremist material? In particular, did the domestic courts adduce “relevant” and “sufficient” reasons for the interference? 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)? Did they consider the impact of the ban on the rights of the followers of the Falun Dafa movement (see Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 159, 10 June 2010)?
Full & Egal Universal Law Academy