European Court of Human Rights

 

 

THIRD SECTION

CASE OF MILSHTEYN v. RUSSIA

(Application no. 1377/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

31 January 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Milshteyn 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. 1377/14) 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 9 December 2013 by a Russian national, Mr Valeriy Mikhaylovich Milshteyn, born in 1952 and living in Novosibirsk (“the applicant”) who was represented by Mr D.A. Shitov, a lawyer practising in Novosibirsk;

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 that office, Mr M. Vinogradov;

the parties’ observations;

the applicant’s notification to the Court concerning change of surname from Milshteyn to Matveev submitted on 23 November 2017 and the decision to proceed with the case under its initial name;

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 the ban on the publications and activities of Elle-Ayat, a movement of sun worshippers in Novosibirsk which preaches healing through faith and nature-based rituals. The applicant was the leader of the Elle-Ayat group and editor-in-chief of the Zvezda Selennoy (Selenite Star) magazine. The magazine published praise of Elle-Ayat self‑treatment methods and testimonials from followers who had been cured in that way.

2.  In 2010, at the request of an investigator, an expert carried out a linguistic examination of Zvezda Selennoy publications for the presence of extremist material. The linguist found that the publications proclaimed the superiority of Elle-Ayat followers and provoked intolerant attitude towards non-followers. On the basis of these findings, the Naberezhnye Chelny town prosecutor asked the Town Court to issue a declaration that the seven issues of the magazine constituted extremist materials.

3.  On 14 February 2013, relying essentially on the linguist’s findings, the Supreme Court of Tatarstan confirmed that the prosecutor’s request was to be granted and the publications in questions were extremist materials. On 17 October 2013, a judge of the same court refused to grant the applicant leave to appeal.

4.  In parallel proceedings, on 25 February 2013 the Novosibirsk Regional Court granted the Novosibirsk prosecutor’s application to ban the Elle-Ayat religious group as an extremist organisation causing harm to citizens’ health and inducing them to refuse medical assistance on religious grounds. The Regional Court held 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. On the charge of causing harm to health and inducing persons to refuse medical assistance, the court considered testimony from the witnesses whose family members had been diagnosed with cancer and had sought help from the Elle-Ayat group. The group had told them to refuse science-based treatment and prefer faith healing instead. Forensic medical experts who studied their medical records posthumously concluded that refusing evidence-based medical treatment had “accelerated the progression of the disease”.

5.  The applicant appealed against the decision of the Regional Court, citing, in particular, the results of expert examinations which stated that the group’s beliefs did not include refusal of medical assistance and the individual attitudes of the followers in this respect did not represent the group’s belief system. On 19 June 2013 the Supreme Court of Russia annulled the Regional Court’s decision in the part relating to the charge of extremism, as 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.

6.  In subsequent proceedings, on 28 October 2013 the District Court dismissed the prosecutor’s application for the banning of the remaining fifty issues of the magazine. It held in particular that, even though experts in linguistics found indications of extremism in twenty-three issues of the magazine, it was up to the court to decide whether the materials were extremist in nature. Although certain passages criticised scientists, doctors and priests and praised the philosophy of Elle-Ayat, there were no indications of incitement to hatred against any social or religious group, and thus no grounds for declaring them extremist. On 17 December 2013 the Novosibirsk Regional Court upheld that decision on appeal.

7.  Relying on Articles 9, 10, and 11 of the Convention, taken alone and in conjunction with Article 14, the applicant complains about the judicial decisions which declared several issues of the Selenite Star magazine extremist materials and banned the activities of Elle-Ayat. He also complains under Article 6 of the Convention that the proceedings on the application for the banning of the activities of the group were not conducted in a fair and adversarial manner.

THE COURT’S ASSESSMENT

I.           ALLEGED VIOLATION OF ARTICLEs 9, 10 and 11 OF THE CONVENTION

8.  As the leader of the Elle-Ayat group and editor-in-chief of the magazine, the applicant may claim to be a victim of the violations complained of (compare Jehovah’s Witnesses of Moscow and Others v. Russia, no. 302/02, § 168, 10 June 2010, with further references). The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

9.  The ban on the publication and dissemination of Elle-Ayat materials amounts to “interference by a public authority” with the 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 (see Ibragim Ibragimov and Others v. Russia, nos. 1413/08 and 28621/11, § 78, 28 August 2018). As the religious nature of the Elle-Ayat group was not disputed at the national level, the complaint about the decision to ban its activity must be examined from the standpoint of Article 9 of the Convention, read in the light of Article 11 and of the relevant principles summarised in Church of Scientology Moscow v. Russia (no. 18147/02, §§ 64 and 71-75, 5 April 2007) and Jehovah’s Witnesses of Moscow and Others (cited above, §§ 99 et seq.).

10.  The Court will proceed on the assumption that the interference was lawful in domestic terms and pursued the legitimate aims of the protection of public order and health. 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 publications and activity of the applicant’s group.

11.  As regards the publications, it is apparent that the key legal findings as to their allegedly extremist nature were, in fact, made by the experts who drew up the reports which were then merely reproduced in the judicial decisions (compare Ibragim Ibragimov and Others, cited above, § 106). It is also apparent that the courts did not attempt to conduct their own legal analysis of the texts in question, as they did not specify the problematic passages of the materials or quote and assess any expressions that “incited an intolerant attitude” and “proclaimed superiority” of the Elle-Ayat followers. Conversely, in the subsequent proceedings in which the court did not endorse the expert opinions but conducted its own legal analysis, no indications of extremism had been found in the Elle-Ayat publications.

12.  Secondly, the courts failed to assess the necessity of the ban on 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)). The courts did not even mention, let alone discuss at any length, the effect of the ban on the applicant’s rights under Articles 9 and 10 of the Convention (ibid., § 277), thus failing to weigh their rights against the public interest.

Accordingly, the domestic courts did not apply the standards which conformed with the principles embodied in Article 10 of the Convention, and there has accordingly been a violation of that provision, read in the light of Article 9.

13.  As regards the banning of the activity of the Elle-Ayat group, the Court reiterates that the freedom to refuse specific medical treatment or to select an alternative form of treatment is vital to the principles of self‑determination and personal autonomy. Patients must have the right to make choices that accord with their own views and values, regardless of how irrational, unwise or imprudent such choices may appear to others (see Jehovah’s Witnesses of Moscow and Others, cited above, § 136). While finding that the Elle-Ayat group induced its followers to refuse medical assistance the courts had regard to the statements by family members of a few of them and to findings of experts in medicine. They did not however consider that the refusal of treatment had been formulated by adult followers of the movement having the capacity to make medical decisions for themselves.

14.  The crucial legal test in such cases is whether the refusal was an expression of the person’s authentic will or whether the degree of external influence brought to bear on the person had been such as to persuade him to depart from his own wishes (ibid., § 138). In the present case, the Court finds no evidence of coercion or undue pressure being put on any members of the group. Rejecting scientifically proven treatment in favour of faith healing appears to have been a misguided decision, but there is nothing to indicate that it has been made under pressure or duress. In the absence of any evidence of improper pressure put on the community’s members, the Court finds that the domestic courts did not convincingly establish a “pressing social need” for banning the Elle-Ayat group.

There has accordingly been a violation of Article 9 of the Convention, interpreted in the light of Article 11 of the Convention.

II.        OTHER COMPLAINTS

15.  The applicant also complained under Articles 6 and 14 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 and that he had been discriminated against on account of his religious beliefs. Having regard to the findings above, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the above complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  The applicant claimed 393,960 euros (EUR) in respect of pecuniary damage representing the loss of income from the sale of magazines, and EUR 20,000 for non-pecuniary damage. He also claimed 868,770 Russian roubles (EUR 20,357 according to the applicant’s calculations) in respect of costs and expenses incurred before the Court and in the domestic proceedings, requesting a part of it to be paid to the bank account of his representative.

17.  The Government considered the claims to be excessive and unsubstantiated.

18.  The Court rejects the applicant’s claim for pecuniary damages because it is not supported by documents. It awards the applicant EUR 9,750 in respect of non-pecuniary damage and, having regard to the documents in its possession and its practice, EUR 5,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints under Articles 9, 10 and 11 of the Convention concerning the ban on publication and dissemination of seven issues of the Zvezda Selennoy magazine and the ban of the Elle-Ayat group admissible;

2.      Holds that there has been a violation of Article 9 of the Convention, read in the light of Article 11, on account of the banning of the Elle-Ayat group;

3.      Holds that there has been a violation of Article 10 of the Convention, read in the light of Article 9, on account of the ban on seven issues of the Zvezda Selennoy magazine;

4.      Holds that there is no need to examine the admissibility and merits of the remaining complaints;

5.      Holds

(a)  that the respondent State is to pay the applicant, 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 9,750 (nine thousand seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

6.      Dismisses the remainder of the claim 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