By: Mujtaba Ali Tirmizey
Impunity Watch Staff Writer
MOSCOW, Russia — On September 10, 2019, the European Court of Human Rights (ECHR) held that the refusal to grant a film reproduction license is a violation of Article 10 of the European Convention of Human Rights which concerns freedom of expression.
Russian national, Sergey Pryanishnikov, is a producer who owns the copyright for over 1,500 erotic films. After receiving approval for public distribution of his films, Pryanishnikov’s application for a film reproduction license was rejected by the Russian Ministry of the Press in 2003 because he was deemed to be “involved in illegal production, advertising and distribution of erotic and pornographic material and films.”
In 2004, Pryanishnikov contested the rejection before the Commercial Court of Moscow, but the court upheld the decision. The court reasoned that while Pryanishnikov had never been officially charged with the distribution of pornography and had only been interrogated by the police as a witness, since no determination had yet been made in the criminal proceedings, “it could not be ruled out that he was involved in the illegal production of pornographic films.”
Later in 2004, the Appeal Court and Court of Cassation upheld the judgment of the lower courts with both courts using similar reasoning to make their decision. In 2005, relying on Article 10, Pryanishnikov filed a complaint with the ECHR.
The Court concluded that the refusal to issue a film reproduction license interfered with Pryanishnikov’s freedom of expression. The Court conceded that protecting morals and the rights of others, in particular shielding children from access to pornographic material, were justifiable goals. However, when determining whether the interference was also “necessary in a democratic society”, the Court noted that the lower court decisions had been based on assumptions rather than reasoned findings of fact. More specifically, the Russian courts did not rely on any document from the criminal case file indicating that Pryanishnikov was suspected of that offense. As a matter of fact, they had explicitly mentioned that he had been involved in the investigation as a witness rather than a suspect.
Additionally, the Court stated that the lower courts did not weigh either the impact their decision would have on Pryanishnikov’s ability to distribute all the films for which he had distribution certificates or his freedom of expression in general. In particular, they failed to perform a balancing test between the right to freedom of expression and the need to protect public morals and the rights of others, resulting in an unjustifiable restriction of freedom of expression.
This decision is significant because it overturned four consecutive domestic judgments suppressing freedom of expression in Russia. Ideally, following this ECHR decision, citizens’ rights to freedom of expression in other member states will be respected more. By applying the suggested balancing test, future freedom of expression decisions might be more uniform and proportionally reasoned to reach sound judgments.
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