Choices in medical treatment and Article 9 ECHR: Milshteyn

The ECtHR is gradually clearing its outstanding backlog of cases against the Russian Federation…

In Milshteyn v Russia  [2023] ECHR 84,  the publications and activities of Elle-Ayat, a movement of sun worshippers in Novosibirsk which preaches healing through faith and nature-based rituals, had been banned. Mr Milshteyn was the leader of the Elle-Ayat group and editor-in-chief of its Zvezda Selennoy [Selenite Star] magazine. The magazine published praise of Elle-Ayat’s self‑treatment methods and testimonials from followers who had been cured by them [1].

In 2010, “an expert” carried out a linguistic examination of Zvezda Selennoy publications for the presence of extremist material. The “expert” found that the publications proclaimed the superiority of Elle-Ayat followers and provoked an intolerant attitude towards non-followers [2]. It was also pointed out that the group had told its followers to refuse science-based medical treatment and to prefer faith healing instead – and forensic medical experts who had studied the medical records of followers who had died had concluded that refusing evidence-based medical treatment had “accelerated the progression” of their diseases [4].

On the basis of these findings, the Naberezhnye Chelny town prosecutor asked the Town Court to issue a declaration that seven issues of the magazine constituted extremist materials. After several appeals, the position was that though several issues of Zvezda Selennoy were banned, the courts had determined that there were no indications of incitement to hatred against any social or religious group and, therefore, no grounds for declaring Elle-Ayat extremist [6].

Before the ECtHR, relying on Articles 9, 10, and 11 of the Convention, taken alone and with Article 14, Mr Milshteyn complained about the judicial decisions that had declared several issues of Zvezda Selennoy extremist and banned the activities of Elle-Ayat. He also complained under Article 6 that the proceedings on the application for banning the activities of the group had not been conducted fairly [7].

In a very brief judgment, the Court held that though the interference was lawful in domestic terms and pursued the legitimate aims of the protection of public order and health [10], 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 and the courts did not attempt to conduct their own legal analysis of the texts in question. In the subsequent proceedings in which the domestic 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 [11]. Nor did the courts “even mention, let alone discuss at any length, the effect of the ban on the applicant’s rights under Articles 9 and 10”, thereby failing to weigh his rights against the public interest. The domestic courts had not applied standards that conformed with the principles in Article 10 and, accordingly, there had been a violation of that Article read in the light of Article 9 [13].

Further, as regards the banning of the activity of the Elle-Ayat group, the Court reiterated that the freedom to refuse specific medical treatment or to select an alternative form of treatment was”

“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” [14: emphasis added].

It was not necessary to examine the complaints under Articles 6 and 14 [15].

Cite this article as: Frank Cranmer, "Choices in medical treatment and Article 9 ECHR: Milshteyn" in Law & Religion UK, 1 May 2023,


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