Criticising religion and freedom of speech and association: Yefimov

In Yefimov and Youth Human Rights Group v Russia [2021] ECHR 1028, Mr Yefimov, a resident of Karelia, had written an article in which he criticised the influence of the Russian Orthodox Church in public life and was prosecuted for alleged hate speech [2]. His subsequent appeals were unsuccessful [16]. The second applicant, Youth Human Rights Group, of which Mr Yefimov had been the founding member, provided legal assistance to victims of human rights violations, supported youth projects and published an online newspaper, Zero Hour [5]. The offending article, which had appeared in Zero Hour, began:

“Anti-church attitudes are on the rise in the Karelian capital. Nothing surprising about that. Thinking members of society have realised that the church is also a party in power. The Russian Orthodox Church, just like the [ruling] United Russia party, is fooling people with fairy-tales about our good life while raking in money. Total corruption, oligarchy, and the absolute power of security services are the reasons for a revival of the Russian Orthodox Church (ROC). Churches in Karelia are being built with public funds while there is no money for basic needs; ROC gets day nurseries for use at a time when childcare facilities are desperately lacking. Bearded men in fancy robes – modern-day ideology instructors – have filled the television screens“ [5].

Two years after Mr Yefimov’s prosecution, the authorities ordered the dissolution of the Youth Human Rights Group on the grounds that it had refused to expel Mr Yefimov. The Supreme Court of Karelia and the Supreme Court of Russia upheld that decision [21].

The arguments

Before the ECtHR, Mr Yefimov complained that his prosecution for expressing his views had contravened Article 10 (freedom of expression). Both applicants complained that the order to expel Mr Yefimov from the Youth Human Rights Group and to dissolve the Group had contravened Article 11 (freedom of association). He submitted that a clear threat to commit him unlawfully to a psychiatric unit after an initial evaluation had found no mental disorder was an interference with his Article 10 rights and the criminal proceedings had sought to end his work as an activist and human rights defender fighting for the cause of secularism. The impugned article had presented his view on a matter of public interest: the Russian Orthodox Church’s close relations with the ruling party, the allocation of public funds and property to religious entities and the overwhelming presence of clergy on television. Instituting criminal proceedings for criticising a religious organisation was incompatible with the position of the Supreme Court, which had indicated that criticism of religious organisations did not constitute hate speech. The interference was therefore neither lawful nor necessary in a democratic society [32].

The Government argued that the criminal proceedings had complied with domestic law. The article had contained “humiliating descriptions, negative affective evaluations and adverse affirmations” directed against the Russian Orthodox Church and had attributed hostile intentions and conduct to its representatives. The investigative authorities had had a duty to conduct an inquiry and to put the case against Mr Yefimov before a court. His right to freedom of expression had been outweighed by the public interest in protecting national security and preventing disorder and extremist offences [33].

The judgment

The Court reiterated that state actions that been found to amount to an interference with the right to freedom of expression could include a wide variety of measures in the form of a “formality, condition, restriction or penalty” and

“Criminal-law measures capable of having a chilling effect on freedom of expression may confer on the affected individuals the status of a ‘victim’ of an alleged violation even where criminal proceedings against them did not end in a conviction” [34].

Mr Yefimov had stated his views on allegedly anti-clerical attitudes in his home region and the authorities had reacted to his short note with a series of restrictive measures: criminal proceedings for an offence punishable by imprisonment, a search of his home, the removal of his personal computer and an order for his involuntary confinement in a psychiatric institution [35] – and he had only avoided the last of these by fleeing Russia [36].

Mr Yefimov had expressed his concern about what he saw as the encroachment of one particular religious organisation on public facilities and its unjust enrichment at the expense of society as a whole. His criticism focused on the religious organisation rather than on individual believers and did not call for anyone’s exclusion or discrimination, let alone incite to acts of violence or intimidation. Nor has it been claimed that any of his allegations had been untrue or defamatory [45]. The Government had not put forward any evidence of a sensitive social or political background, a tense security situation, an atmosphere of hostility and hatred, or any other particular circumstances in which the publication had been liable to incite unlawful actions against Orthodox priests or to expose them even to a remote risk of violence. A mere speculative danger could not be seen as pursuing a “pressing social need” [46]. Further, the threat of a custodial sentence could have a strong “chilling effect” on freedom of expression and should not apply to non-violent forms of it [47].

The publication had not been shown to be capable of inciting violence, hatred or intolerance or causing public disturbances and the grounds for levelling criminal charges against Mr Yefimov had been “inconsistent with the Article 10 standards”. There had accordingly been a violation of Article 10 [48].

As to the Youth Human Rights Group, its dissolution had not had a clear and foreseeable legal basis [73]; therefore, because the dissolution had not been “prescribed by law” it was not necessary to examine further whether it had pursued a legitimate aim and/or had been “necessary in a democratic society” [74].

There had accordingly been a violation of Article 11 of the Convention, read in the light of Article 10, in respect of both applicants [75].

Cite this article as: Frank Cranmer, "Criticising religion and freedom of speech and association: Yefimov" in Law & Religion UK, 12 December 2021, https://lawandreligionuk.com/2021/12/12/__trashed-3/

 

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