ECHR judgment of August 28, 2018 in the case of Ibragim Ibragimov and Others (Ibragim Ibragimov and Others) v. The Russian Federation (applications N 1413/08 and 28261/11).
The case successfully reviewed the complaints of the applicants on the ban on the publication and distribution of books by a famous Muslim theologian, which were recognized as extremist literature. The case has violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants published or sponsored the publication of books written by the famous Turkish theologian Said Nursi in the first half of the 20th century from the collected works of Risale-i Nur (Risale-I Nur), devoted to the interpretation of the Koran. Representatives of Islam in the Russian Federation and abroad, as well as Islamic scholars, confirm that the books of Said Nursi belong to the moderate mainstream of Islam, proclaim tolerant relationships and interaction between religions and deny any forms of violence. The books have been translated into 50 languages and are available in many countries both in paper and in electronic form (on the Internet). They were used for educational purposes in Russian mosques and religious schools (madrasas). The books were declared extremist literature, which led to a ban on their publication and distribution, to the withdrawal of unsold copies in accordance with the Federal Law "On Countering Extremist Activities." The applicants appealed unsuccessfully to this decision.
QUESTIONS OF RIGHT
Regarding compliance with Article 10 of the Convention in conjunction with Article 9 of the Convention. The interference with the right to freedom of expression of the applicants, interpreted in the light of their right to freedom of religion, was based on the Federal Law on Countering Extremist Activities. Noting the opinion of the European Commission for Democracy through Law (Venice Commission), which recognized the definition of “extremist activity” as overly broad, inaccurate, and interpretable, the Court left open the question of whether the interference with the applicants' right to freedom of expression was considered “provided for by law. " The measures complained of pursued the legitimate aims of preventing disorder and protecting the territorial integrity of the state, protecting public safety and the rights of others.
Although the legislation of the Russian Federation did not require acts of violence to recognize extremist activity, the courts of the Russian Federation recognized Said Nursi’s books as “extremist” on the grounds that they allegedly incited “religious differences” and promoted people’s superiority or inferiority depending on their attitude to religion . In deciding, the courts of the Russian Federation did not independently evaluate the texts of the books, but only referred to the contested expert opinion, which went far beyond the resolution of simple linguistic and psychological issues and contained significant legal conclusions regarding the extremist nature of the books. Domestic courts have not studied the need to ban the publication of books, taking into account the context in which they were published, their nature and text, and the possibility that the publication of books would lead to negative consequences. The courts of the Russian Federation did not even mention the consequences of the ban on the rights of applicants guaranteed by Articles 9 and 10 of the Convention. Moreover, they rejected all the evidence submitted by the applicants, which explicitly concerned an assessment of whether the ban on the publication of books was justified: the conclusions of representatives of Muslim communities and Islamic theologians, who explained the historical context in which the books were written, the place of books in Islamic religious literature, in particular, the fact that the books related to the moderate and not the radical trend of Islam, the significance of the books for the Russian Muslim community and the general idea of tolerance expressed in them, interfaith interaction and opposition to violence.
As regards the first application (No. 1413/08), since the courts of the Russian Federation did not even indicate which fragments of the text of the books they considered to be “extremist,” the applicants did not have the opportunity to re-publish the books, after correcting the texts that raised the questions. Consequently, the decisions of the courts of the Russian Federation were an absolute ban on the publication and distribution of books.
In the second application (N 28261/11), the courts of the Russian Federation concluded that the books in question represented Muslims as superior to the rest of non-Muslims, since Muslims were described as “faithful” and “just”, and the rest were called “infidels”, “philosophers "," talkers "and" insignificant people. " These books also claimed that not being a Muslim was "an extremely serious crime." However, although according to the experts' opinion, such statements were typical of monotheistic religious texts, the court took them out of context and did not evaluate them considering the content of the books as a whole. Despite the fact that the appealed statements clearly demonstrated the idea that it is better to be a Muslim than a non-Muslim, it was important that the books did not call to insult, ridicule or exterminate non-Muslims, did not use insults against non-Muslims or did not address matters that were sacred. for non-muslims.
In addition, neither the courts nor the authorities of the Russian Federation referred to any facts that would indicate an increased importance for matters of religion, attendant circumstances (the general context of the case) at the time in question, such as interracial tension or an atmosphere of hostility or hatred. between religious communities of the Russian Federation, against which there was a risk that the statements in question could cause a surge in violence, serious interfaith clashes or other similar serious znye consequences. It was not proven that the statements in question could have been incitement to violence, hatred or intolerance. Although the author’s goal was to convince the reader to accept his (author’s) religious beliefs, according to the European Court, this was not enough to justify the ban on the publication of books. It has never been claimed that the content of the books would (or would) contribute to improper proselytism, that is, an attempt to convert people to a particular faith by using violence, ideological processing, or by attracting people in distress or need. It was also not claimed that the books would have defended any other activities besides the call to accept the faith and respect the requirements of Islam in private, or they would call for the reorganization of society as a whole by designating the religious beliefs of each member of society or towards a society based on religious ideas.
Finally, the European Court found that the courts of the Russian Federation in both cases did not apply standards that would comply with the principles enshrined in Article 10 of the Convention, and did not use “relevant and sufficient” evidence to intervene. The European Court dismissed the preliminary objection of the Russian authorities under Article 17 of the Convention.
The case was a violation of Article 10 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court awarded EUR 7,500 to the applicant Ibragimov as compensation for non-pecuniary damage; other applicants did not submit any claims for just satisfaction.