Background

Salekh Ogly Ibragimov, the Nuru Badi Cultural Educational Fund, a publisher based in Moscow, and the United Religious Board of Muslims of the Krasnoyarsk Region complained about the banning of various books written in the first half of the 20th century by Said Nursi, a Muslim Turkish scholar. The domestic courts had ruled in 2007 and 2010 that the books were extremist: in particular, that they incited religious discord and constituted propaganda on the superiority of the Muslim faith, contrary to the provisions of the Suppression of Extremism Act 2002. In coming to their decisions, the domestic courts had relied on expert reports ordered by the court or submitted by the prosecutor that had been written by specialists in linguistics, philology, psychology and philosophy. Subsequent appeals were rejected.

The judgment

In Ibragim Ibragimov and Others v Russia [2018] ECHR 684, the Court noted that the domestic courts’ decision to ban the books from publication and distribution because they were “extremist” had been an interference by a public authority with the applicants’ rights under Article 10 ECHR (freedom of expression), interpreted in the light of their right to freedom of religion under Article 9. That interference had had a basis in national law under the Suppression of Extremism Act and had aimed at preventing disorder and protecting territorial integrity, public safety and the rights of others. However, overall, the Russian courts had failed to justify why it had been necessary to ban the books, which had first been published in Russia in 2000 – seven years before the ban – without them ever having caused interreligious tensions, let alone violence. They had also been translated into about 50 languages and were widely available in many countries without any problem.

The domestic courts had not discussed the necessity of banning the books. They had banned them on the basis of experts’ conclusions without making their own assessment; nor had they specified which passages of the books were problematic. Furthermore, the experts’ report had gone far beyond issues of language or psychology and had strayed, in essence, into a legal classification of the texts – which, said the Court, was a legal matter exclusively for determination by the courts.

Nor had the applicants been able to contest the expert reports. The courts had summarily rejected all evidence they had submitted, including the opinions of Muslim authorities and Islamic scholars who had explained the historical context in which the books had been written and the fact that they belonged to moderate rather than radical Islam, their importance for the Russian Muslim community and their general message of tolerance, interreligious cooperation and opposition to violence. Scholarly opinions had simply been disregarded because the authors of the expert reports had not been linguists or psychologists.

Though the domestic courts had quoted several expressions which they considered problematic because they had promoted the idea that it was better to be a Muslim than a non-Muslim and had used military metaphors, they had not assessed those expressions in context and had failed to take into account that it was common in religious texts for a religion to claim that it was superior to other religions. Importantly, the texts in question had not been abusive towards non-Muslims nor insulted nor slandered them. Nor had the use of military metaphors been set in context. Similarly, the mere fact that Said Nursi’s intention had been to convince readers to adopt his religious beliefs was insufficient to justify the ban.

As to Article 9, where several religions coexisted within the same population, it might be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups within society and ensure that everyone’s beliefs were respected. However:

“The Court has frequently emphasised that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups. That concerns both relations between believers and non‑believers and relations between the adherents of various religions, faiths and beliefs … The Court has also stressed that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed … Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other” [90]

As to Article 10:

“The Court has consistently held that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self‑fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broad-mindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly‘ [91: emphasis added].

It had not been “necessary in a democratic society” to ban the books in question and there had therefore been a violation of Article 10 [124].