Last Updated on January 31, 2023 by LawEuro
The present case concerns a ban on the publications of the Falun Gong (Falun Dafa) a Chinese spiritual movement whose practice combines meditation and exercises with a moral philosophy.
THIRD SECTION
CASE OF SINITSYN AND ALEKHIN v. RUSSIA
(Application no. 39879/12)
JUDGMENT
STRASBOURG
31 January 2023
This judgment is final but it may be subject to editorial revision.
In the case of Sinitsyn and Alekhin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,
Jolien Schukking,
Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 39879/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 May 2012 by two Russian nationals, Mr Mikhail Vladimirovich Sinitsyn and Mr Sergey Nikolayevich Alekhin, born in 1969 and 1975 respectively and living in Krasnodar and Novorossiysk (“the applicants”) who were represented by Ms Dubrovina, a lawyer practising in Novorossiysk;
the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;
the parties’ observations;
the comments submitted by the Human Rights Law Foundation, which was granted leave to intervene by the President of the Section;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 10 January 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The present case concerns a ban on the publications of the Falun Gong (Falun Dafa) a Chinese spiritual movement whose practice combines meditation and exercises with a moral philosophy. The applicants, Mr Sinitsyn and Mr Alekhin, are followers of Falun Gong.
2. In 2008, the Krasnodar regional prosecutor asked the Pervomayskiy District Court to issue a declaration that Falun Gong’s main text, Zhuan Falun, two pamphlets, and a report into allegations of organ harvesting of Falun Gong practitioners in China, constituted extremist materials. He relied on the findings of two experts in linguistics and psychology to the effect 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 those who were not following the movement, and that the pamphlets suggested “hostile attitude to the official Chinese authorities”.
3. On 26 August 2008 the District Court granted the prosecutor’s request on the basis of the experts’ findings. On 28 April 2009 the Krasnodar Regional Court quashed the judgment on the basis that the District Court had not examined the basic tenets of the Falun Gong beliefs and the contents of the publications and had instead reproduced a summary of the experts’ findings.
4. The District Court commissioned a new expert assessment which returned similar findings. On 27 October 2011 the District Court, on the basis of the experts’ findings, declared the publications to be extremist material. On 22 December 2011 the Krasnodar Regional Court upheld the judgment on appeal. Subsequent requests to grant the applicants leave to appeal were rejected by the Presidium of the Regional Court and by the Supreme Court. A judge of the same court refused to grant the applicant leave to appeal.
5. Relying on Articles 9 and 10 of the Convention, the applicants complain about the domestic courts’ decision to ban the Falun Gong publications.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLEs 9 and 10 OF THE CONVENTION
6. The Government firstly claimed that, by virtue of Article 17 of the Convention, statements directed against the Convention’s underlying values should been removed from its protection, as the materials banned in the present case were qualified as extremist by the domestic courts and aimed at religious strife. The Court considers that Article 17 of the Convention finds no application in this case. This Article is applicable only “on an exceptional basis” and “in extreme cases”, such as to statements denying crimes against humanity, vilifying entire ethnicities or religions, or calling for hatred, banishment or even killing of groups of individuals (see Paksas v. Lithuania [GC], no. 34932/04, §§ 87-88, ECHR 2011 (extracts), with further references; compare with Hizb ut‑Tahrir and Others v. Germany (dec.), no. 31098/08, §§ 72-75, 12 June 2012). Without prejudice to the examination of the merits of the applicants’ complaints, the Court cannot find any such expressions in the applicants’ publications.
7. The complaints are neither manifestly ill-founded nor inadmissible on any grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
8. The ban on the publication and dissemination of Falun Gong materials amounts to “interference by a public authority” with the applicants’ right to freedom of expression under Article 10 of the Convention, which must be interpreted in the light of Article 9 to take account of the religious nature of the materials, not disputed at the national level (see Ibragim Ibragimov and Others v. Russia, nos. 1413/08 and 28621/11, § 78, 28 August 2018).
9. The Court will proceed on the assumption that the interference was lawful in domestic terms and pursued a legitimate aim of the protection of public order. It remains to be ascertained whether it was “necessary in a democratic society”, in particular, whether the domestic courts adduced relevant and sufficient reasons for banning the Falun Gong publications.
10. Firstly, in so far as the judicial decisions relied, to a decisive extent, on the findings of experts, it is apparent that the key legal findings as to the extremist nature of the publications were, in fact, made by the experts who drew up the reports which were then merely reproduced in the judicial decisions (compare Ibragim Ibragimov, cited above, § 106). In this regard the Court reiterates that the matters concerning legal characterisation of the allegedly extremist statements must be resolved exclusively by the courts (see Dmitriyevskiy v. Russia, no. 42168/06, § 113, 3 October 2017).
11. It is also apparent that the courts did not attempt to conduct their own legal analysis of the texts in question. In particular, their decisions did not specify which passages of the materials were considered problematic, or in what way they incited “enmity and hostility” towards those who were not the followers of Falun Gong. Although the courts reproduced the experts’ assessment that Zhuan Falun book contained expressions proclaiming the superiority of Falun Gong followers, it did not quote any such expressions.
12. Finally, the courts failed to assess the necessity of banning the publications with regard to the context in which they were published, their nature and wording, and their possible harmful effect (see Perinçek v. Switzerland [GC], no. 27510/08, §§ 205-08, ECHR 2015 (extracts)). Moreover, the courts did not even mention, let alone discuss at any length, the effect of the ban on the applicants’ rights under Articles and 9 and 10 of the Convention (ibid., § 277), thus failing to weigh their rights against the public interest.
13. In view of the above, the Court considers that the domestic courts did not apply the standards which were in conformity with the principles embodied in Article 10 of the Convention. There has accordingly been a violation of that provision, read in the light of Article 9.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
14. Mr Sinitsyn and Mr Alekhin claimed 12,000 and 8,000 euros (EUR) in respect of non-pecuniary damage. They further claimed EUR 2,610 for legal costs and EUR 486 for translation fees.
15. The Government submitted that the applicants’ claim for costs and expenses was excessive.
16. The Court awards the applicants EUR 7,500 each in respect of non‑pecuniary damage. It awards the applicants EUR 3,096 jointly in respect of costs and expenses, plus any tax that may be chargeable, to be paid into the bank account of the applicants’ representative, as indicated by them.
17. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Dismisses the Government’s objection under Article 17 of the Convention;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 10 of the Convention, read in the light of Article 9;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,096 (three thousand and ninety-six euros) to the applicants jointly in respect of costs and expenses, plus any tax that may be chargeable to them, payable into the bank account of the applicants’ representative;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 31 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President
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