Lev Levinson

Admissible Level of "Immorality": European Law and Traditional Values

Lev Levinson-Expert, the Human Rights Institute (Moscow, Russia); Member, the Russian Ombudsman's Advisory Board, levlev@yandex.ru

This article deals with the cases in ECHR, concerning suits appealing to the article 10 of the European Convention for Human Rights (freedom of expression). The author pays special attention to claims protesting against state intervention powered by the desire to protect morality as well as against sanctions for blasphemy One can find analysis of law enforcement practice of ECHR and fluctuations of Court's strategy (as an example author analyses "the Lautsi case"). Author concludes that the policy of the Court could be characterized as transitional, but the direction of this transition is still unclear. The Court faces two possible alternatives: either the freedom of speech will be defended in all its fullness, or will the margins of appreciation of national powers prevail; in the latter case, the national forces will control ideological, cultural and informational square under pretext of defending religion and morality.

Keywords: European Court of Human Rights, freedom of speech, protection of morality, blasphemy, feelings of believers, religion, traditional values.

The role of the authorities in such circumstances is not to eliminate the cause of tensions and suppress pluralism, but to monitor how competing groups tolerate each other.

From the Judgment of the European Court of Human Rights in the case of Sheriff v. Greece of 11 December 1999.1.

De Salvia M. 1. Precedents of the European Court of Human Rights. St. Petersburg: Legal Center Press, 2004, p. 614.

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For quite a long time and very firmly in the studies and commentaries devoted to the protection of freedom of expression by the European Court of Justice, the idea has taken root that this freedom, when confronted with religious principles and public morals, does not find protection in Strasbourg. And that when considering complaints under article 10 of Convention No. 2, the alleged violator (i.e., the State that restricts freedom of expression) wins in such cases, and not the victim of the violation (the applicant is an artist, director, writer, publisher, producer). Until the early 2000s, things were really like this.

On the one hand, the Handyside v. United Kingdom (1976) judgment formulated the textbook principles governing the human rights discourse of article 10: it applies not only to information and ideas that are perceived favorably or considered neutral, but also to those that offend, shock or irritate the State or any segment of society. for these are the requirements of pluralism, tolerance and broad approach, without which there is no democratic society.3 These words were repeated many times, including in the well-known decisions of the ECHR in the cases "Muller and others v. Switzerland" (1988), "Otto Preminger Institute v. Austria" (1994), "Wingrow v. United Kingdom" (1996). On the other hand, these principles have not been applied in any of the above cases, all of them

2. Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: 1. Everyone has the right to express his or her opinion freely. This right includes freedom to hold opinions and freedom to receive and impart information and ideas without any interference from public authorities and regardless of State borders. This article does not prevent States from licensing broadcasting, television or cinematographic enterprises. 2. The exercise of these freedoms, which imposes duties and responsibilities, may be subject to certain formalities, conditions, restrictions or sanctions that are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public order, in order to prevent riots or crimes, to protect health and morals, to protect reputation or rights other persons, preventing the disclosure of confidential information, or ensuring the credibility and impartiality of the judiciary [http://www.echr.coe. int/NR/rdonlyres/6AE69C60-8259-40F8-93AF-8EF6D8i7C710/0/Convention_RUS. pdf].

Janis M., Kay R., Bradley E. 3. European law in the field of human rights: practice and comments. Institute for Constitutional and Legislative Policy, Budapest, Moscow: Human Rights, 1997, p. 187.

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they were recognized by the court as exceptions to the declared rule of tolerance.

Complaints under article 10 related to media activities, parliamentary debates, state and commercial secrets, defamation scandals, advertising, mostly ended in favor of the applicants, if it was not about religion and morality. But in the case of "loosening the foundations", the ECHR retreated before spiritual censorship and the vice police.

Technically, it would be possible to divide these cases into two piles: appeals against state interference motivated by the protection of general civil morality, and complaints against sanctions imposed for blasphemy and blasphemy. Indeed, immorality in specific proceedings was not always situationally associated with godlessness. Religious motives for the conflict might not even be mentioned or implied. But these are cases of one field.

The unity of this field is explained not by the fact that churches are self-identified as sources and guardians of morality, but by the fact that the state authorities use religious, quasi-religious (such as the "moral code of the builders of communism") and extra-religious morality equally as a reason for restricting freedom of speech, a means of control and repression, as a justification for retaining power. What political rights can we talk about when "traditional values"are at stake, 4 as Patriarch Kirill has repeatedly said: "A believer strives with all his might to protect his loved ones and his people from the sin of apostasy, even if this contradicts the humanistic ideals of "rights and freedoms""5.

The clash of free expression with "values" is possible in a variety of forms of information dissemination. This can be a media report, a politician's statement, a billboard, or even a patented trademark.6 But with all my might-

4. Or: who dares to talk about Internet freedom in the face of child pornography? And now, a law is being passed that puts all disseminated information under suspicion.

5. Address by Metropolitan Kirill of Smolensk and Kaliningrad, Chairman of the Department for External Church Relations of the Moscow Patriarchate, at the VI World Russian People's Congress Соборе//http://eurasia.com.ru/kirill_sobor.html [Accessed from 20.05.2013].

6. From Rospatent Order No. 39 of March 23, 2001: "It is necessary to take into account the feelings of believers. For example, the feelings of Orthodox Christians may be offended by the registration of the designation "Great Lent" for the product "contraceptives".-

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This contradiction manifests itself in what may be called the "Rabelais case"or the" Rushdie case."

Before proceeding to a brief summary of the ECHR's practice on this topic, a significant caveat must be made. Complaints about moral censorship do not always come from victims, whose rights must be restored at all costs. "Every ugliness has its propriety "(and its place). It appears that in some cases the Court was entitled to invoke article 35 of the Convention, which allows for declaring inadmissible any individual complaint as manifestly incompatible with the provisions of the Convention or manifestly unfounded, rather than giving such a case precedent. Despite this, and following many other commentators, it is sometimes necessary to leave out the subject of the dispute, referring to the legal principles "in their pure form". As in Shukshin's story: enjoy the way a troika bird flies, no matter who is sitting in it.

The above-mentioned Handyside case, unlike the others also mentioned above, is least concerned with works of art, although R. Handyside, the owner of a publishing firm, stated that the "Little Red Textbook" that caused the scandal had intellectual and artistic merit. But the British justice system, and then the European one, found the book, which was addressed to schoolchildren and sold for z0 pence, pornographic. This was precisely the case when the plot of measuring freedom of speech and moral taboos turned out to be unsuitable: the "red book" did not seem to deserve the protection of European Themis. But it was this very situation (whether by accident or not) that gave rise to the use of article 10, paragraph 2-restrictions on freedom of expression in order to protect morals. This particular case became a defining one in the practice of the ECHR in the 1980s and 1990s. And already the real phenomena of art began to be adjusted to the template of the decision of 1976.

In the case of Otto Preminger, Werner Schroeter's film Cathedral of Love (1981) was arrested, confiscated and banned. Everything was there. Blasphemous content, highly rated by film critics, and the vast majority of Roman Catholic Tyroleans experiencing, as stated by the Austrian authorities, " a lot of negative emotions."

the designation " Confessional "for the product" vodka", as well as with the registration of the designation "Guram-Bayram" for the product "canned pork meat".

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7. The ECtHR justified the measures taken by the state against the film, deciding that the national authorities know better, since they are "in a better position", with 87% of the faithful behind them. The Court agreed that the interference had a legitimate aim, namely the protection of" the rights of others":"There was an acute social need to preserve religious peace; it was necessary to protect public order, for which the film was a danger, and the Innsbruck courts did not overstep their margin of appreciation in this respect" .8
The decision in the Otto Preminger case was not unanimous. In a dissenting opinion, Judges Elisabeth Palm (Sweden), Raimo Pekkanen (Finland) and Jerzy Makarczyk (Poland) noted:: "We do not deny that the screening of the film could offend the religious feelings of some of the Tyrolean population. However, taking into account the measures actually taken by the applicant association in the interests of protecting those who might find themselves offended [the audience was warned in advance about the content of the film] ... we, after careful consideration, believe that the seizure and confiscation of the film in question were disproportionate to the legitimate aim pursued. " 9
There was a movie in the Nigel Wingrow case, too. The director appealed against the refusal to issue a registration certificate for his short work "Visions of Ecstasy". The erotic interpretation of Christ's apparitions to Saint Teresa of Avila was considered blasphemous. According to the court, "in the moral sphere, and perhaps even more so in the sphere of religious beliefs, there is no generally accepted European concept of requirements designed to ensure the' protection of the rights of others ' in the event of attacks on their religious beliefs." But the European Court of Justice itself is the body that is called upon to balance the measures of rights protected by the Convention and their restrictions. The court "washed its hands", recognizing, in fact, the priority of the British Film Classification Authority, which is better than the international one.-

Gomien D., Harris D., Zwaak L.7 . The European Convention on Human Rights and the European Social Charter: Law and Practice, Moscow: MNIMP, 1998, p. 355.

8.Cit. by: European Court of Human Rights: selected decisions. In 2 vols. Vol. 2. Moscow: NORMA PUBL., 2000, p. 16.

9. European Court of Human Rights and protection of freedom of speech in Russia: precedents, analysis, recommendations, Moscow: Institute of Information Law Problems, 2002, p. 270.

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According to the court," the deep feelings and beliefs " of the subordinate moviegoers are visible. As the judge from Estonia Uno Lomus writes in a dissenting opinion on this case: "Interference is based on the opinion of the authorities, who believe that they correctly understand the sentiments they claim to protect." 10
A number of complaints about violations of article 10 by the authorities were submitted to the Human Rights Commission11. The Commission has repeatedly found the applicants ' conviction for the rental and sale of obscene videos justified, pointing out that the protection of morals is essential in a democratic society (V. and K. v. Switzerland, 1991, S. v. Sweden, 1993).12
In the Mueller case (1988), the Commission and the Court disagreed. Swiss courts found the artist's exhibition to violate sexual taboos and "grossly offend the sense of sexual propriety of people with normal sensitivity", the artist and curators were fined "to protect public morals", and the paintings were found obscene and confiscated. The Court agreed with the discretion of the Swiss courts. However, the Commission drew a distinction between a fine and confiscation, which it considered an unacceptable violation of the artist's freedom of expression, since the confiscation prevented him from exhibiting his work elsewhere in Europe (perhaps not as openly as Switzerland tried to do). After the Commission's decision, but before the Court considered it, the paintings were returned to the author. The Court's decision was passed with one vote against. In a dissenting opinion, Judge Alphonse Spielmann (Luxembourg) argued that State-imposed measures were not necessary at all in a democratic society. Recalling the prosecution of Flaubert for "Madame Bovary" and Baudelaire for "Flowers of Evil" and their subsequent acquittal, the judge called on the state authorities to-

10. European Court of Human Rights and protection of freedom of speech in Russia, p. 352.

11.The European Commission on Human Rights was the pre-judicial body of the Convention, which carried out preliminary examination of complaints before referring them to the Court, and in many cases issued a final rejection decision on the complaint. The Commission was active until the reform of the European justice system, i.e. before the entry into force of Protocol I to the Convention in November 1998.

12. Decisions of the European Court of Human Rights. Application of Article 10 of the European Convention on Human Rights, Moscow: Human Rights, 1998, p. 49.

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States parties to the Convention "take more account of the relative nature of the term 'obscenity '" 13.

"The point is not the publicized views themselves, but the way in which they are presented, i.e., the tone, style and spirit of their presentation," the British Film Classification Authority wrote in its justification for banning Wingrow's picture. 14 What are we talking about here? Repeating the words of Andrei Sinyavsky about purely aesthetic differences with the Soviet government, it can be said that the European Court, which united a very conservative legal elite in those years, felt stylistic hostility towards modern art, which was revealed to it in the works of Schroeter and Wingrow.

The basis for this was, and still is, the persistent refusal to accept the language spoken by avant-garde art, sometimes called, and not quite accurately, postmodernism. Its language, its codes are incomprehensible, and its style is incomprehensible. "New art meets the masses who are hostile to it, and will always face it. It is not national in its very essence; moreover, it is anti-national... The public is divided into two parts; one part, the smaller one, is composed of people who are favorably disposed; the other, much larger, innumerable, is hostile... The majority, the mass, simply do not understand it [the "new thing"] " 15. It is only natural that today in Russia Perov's mocking religious procession and Repin's satirical one do not inflame anyone's feelings. But a wave of feelings rises at the sight of, for example, an installation or rather a sculpture of a church made by Alina Gurevich from a bottle and an onion, candles and black bread-a pious and almost canonical work (the work was destroyed by rioters at the exhibition " Beware of Religion!").

It seems that in the famous phrase "offensive, irritating, or shocking" used in the Handyside judgment, the Court (to which nothing human is alien) projected its own attitude towards contemporary art: as a first impression - shock, then insult in the best feelings

13. Interights Bulletin. Russian edition of the Interights Bulletin / Institute of Human Rights, Moscow, 2004, N4, p. 6.

14. European Court of Human Rights and protection of freedom of Speech in Russia: precedents, analysis, recommendations, Moscow: Institute of Information Law Problems, 2002, p. 319.

Ortega y Gasset H. 15. Dehumanization of Art//Samosoznanie evropeyskoy kul'tury XX veka: sbornik [Self-consciousness of the European culture of the XX century: a collection]. Moscow: Politizdat, 1991, pp. 231-232.

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and irritation as a constant value. In the Otto-Preminger case, the Court explained its decision, among other things, by saying that "gratuitously offensive" works of art "do not contribute anything to public discussions that would contribute to progress in human affairs".16
Apparently, politicians and journalists are more likely to contribute (or correspond) to progress. The European Court of Human Rights has considered more than a hundred cases that guarantee media freedom. The boundaries of this freedom, in comparison with the freedom of creativity and author's expression, are incomparably wider. Thus, the Court found a violation of article 10 in the case of Dalban v. Romania (1999): the journalist who filed the complaint was convicted for accusing the politician of corruption and squandering public funds without sufficient evidence. The Court concluded that "the concept of' journalistic freedom 'also allows for some exaggeration and even provocation" (for artistic expression, Strasbourg did not recognize such freedom in those years). In the case of Torgvirson v. Iceland (1992), the Court also defended a journalist who was accused of making very harsh statements about the police, and in the case of Jersild v. Denmark (1994), it found permissible to broadcast an interview containing racist statements live without a TV reporter's comment.17
Summarizing the practice of applying article 10, paragraph 2, of the Convention in the 1970s and 1990s, the researchers note :" In assessing whether a particular intervention was 'necessary in a democratic society', the ECtHR gives national authorities a wide margin of appreciation if the opinion in question concerns issues of the 'personal sphere' and lies within the scope of their own interests." outside the sphere of political statements or discussion of socially significant issues " 18.

Freedom of creative expression turned out to be a second-class right in this value context.

Judge Shpilman's dissenting opinion in the Mueller case states that "the Court's approach to assessing the best ability of a State to-

16.Cit. by: European Court of Human Rights: selected decisions. In 2 volumes, Vol. 2. Moscow: NORMA PUBL., 2000, p. 15.

Makovey M., Chefranova E. A. 17. European Convention for the Protection of Human Rights and Fundamental Freedoms: Article 10. The right to Freedom of Expression: precedents and Comments. Moscow: Russian Academy of Justice, 2001. p. 13.

18. European Court of Human Rights and protection of freedom of speech in Russia: precedents, analysis, recommendations. p. 173.

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The international court of Justice may not be able to find any violation of article 10, since the second paragraph will always apply."19 That is, the permissible limitations of the law stipulated in paragraph 2.

With the accession of the former Soviet republics and socialist camp States to the Council of Europe, the European Court of Justice faced a significantly different reality. When comparing individual rights and their restriction by the state (whether it is permissible or unacceptable, whether it is lawful or not, whether it is necessary in a democratic society or excessive), the Court - in order to preserve the rule of law - cannot ignore the political regime and traditions of subordination of law to the interests of the authorities in the States participating in the "second call". This could not but affect the criteria for evaluating restrictions on freedom of speech, especially those carried out in order to protect morals and support religion.

The Court's attitude to cases of blasphemy and blasphemy had to be changed. The vector of changes, principles and priorities have long been determined by the ECHR itself, counting from the same Handyside case. "The concept of blasphemy is broad and variable," the Court noted in its Wingrow ruling, "and there is always a risk of arbitrary or excessive interference with the exercise of freedom of speech under the guise of actions allegedly directed against blasphemy." 20
Jean-Paul Costa, former President of the European Court of Human Rights, writes: "The protection of public morals from "obscenity" remains widely used to justify restrictions on freedom. And the freedom of creativity is less protected than the freedom of the press, especially when the latter is applied to the struggle of ideas in politics. Religious feelings are taken into account by the Court with more attention and to a greater extent than, for example, the protection of personal reputation, even in the case of defamation. Without a doubt, these inconsistencies of rhythm in the progressive global - and progressive-trend are inevitable. Perhaps they sometimes reflect the subjectivity of the judges who make up the court and their majority who make decisions.

Janis M., Kay R., Bradley E. 19. European Human Rights Law: Practice and Commentary. From 203.

De Salvia M. 20. Precedents of the European Court of Human Rights. St. Petersburg, 2004, p. 672.

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But justice is far from immobile - and an evolution in its approach to dealing with various cases is permissible and even desirable. " 21
The approaches described by Judge Costa focus on a single word, the disclosure of which in the Court's practice defines the mission of the ECHR. This is a criterion of necessity: what are the necessary conditions for restricting freedom of expression, what is the line beyond which state interference becomes unacceptable?

The word "necessary" in article 10 of the Convention is used in a strict sense: "If there are other reasonable ways to achieve these goals with less damage to the constitutionally protected activity, the Government cannot take the path of greater intervention, but must choose less radical means"22.

"The possibility of intervention," writes M. L. Entin, " does not mean and does not imply the need for intervention. If a democratic society does not feel the need to restrict certain forms of freedom of expression, the State is not obliged to do anything in this direction."23. In the Handyside judgment, referring to article 60 of the Convention ("Nothing in this Convention should be interpreted as restricting or derogating from any human rights and fundamental freedoms..."), the ECtHR noted that it "never obliges the various authorities of contracting States to restrict the rights and freedoms guaranteed by it".

In the 2000s, the Court's interpretation of the" necessity of state interference " in the sphere of free expression has become more strict, and the permissibility of such interference is recognized less frequently. Decisions are made to protect freedom of speech. But it would be wrong to assume that such an expansion of uncensored space occurs at the expense of infringement of religious rights, as is usually presented by supporters of spiritual censorship who criticize this new trend of the Court.

Costa J.-P. 21. Freedom of expression // Russia and the Council of Europe: Prospects for Interaction, Moscow: Institute of Law and Public Policy, 2001. From 151.

Janis M., Kay R., Bradley E. 22. European law in the field of human rights: practice and comments. p. 208.

EntinM, L. Mezhdunarodnye garantii prav cheloveka: opyt Soveta Evropy [International guarantees of human Rights: the experience of the Council of Europe]. Moscow: MNIMP Publishing House, 1997, p. 261.

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"Those who openly express their religious faith, regardless of whether they belong to a religious majority or minority, have no reasonable reason to expect that they will remain above criticism. They must show tolerance and accept that others deny their religious beliefs and even spread teachings that are hostile to their faith, " the ruling in the Otto Preminger case states.24 And as the UN Human Rights Committee noted in its General Comment (1993) on article 18 of the International Covenant on Civil and Political Rights, restrictions on freedom of religion or belief in order to protect morals "should not be based on principles derived solely from a single tradition".25 We need tolerance.

The most characteristic decisions of the European Court of Human Rights in the cases of Klein v. Slovakia (October 31, 2006) and Ginevski v. France (January 31, 2006)can be called the most characteristic of the 2000s, Akdash v. Turkey (February 16, 2010). Read more about them below.

Although the decisions in these cases, unlike those considered above, were made in favor of the applicants, it is hardly necessary to rush to the conclusion that the previous ideological trend that determined the course of cases has changed dramatically. It is more appropriate to call the legal policy of the ECHR of the issues considered here transitional. Where is this transition going - will freedom of speech become fully protected primarily (which does not mean, of course, protected in all cases), or will compliance with the discretion of local authorities, who control the ideological, cultural, and information space under the pretext of protecting religion and morality, again prevail?

The point of hesitation of the ECHR, which defines this uncertainty, was the well-known case "Lautsi and Others v. Italy" on the hanging of a crucifix in public schools 26. On November 3, 2009, the Chamber of the Second Section of the Court unanimously recognized a violation by the State of article 2 of Protocol No. 1 to the Convention, which guarantees the right of parents to teach children in accordance with

De Salvia M. 24. Precedents of the European Court of Human Rights. St. Petersburg, 2004. pp. 611-612.

25. Precedent cases of the Human Rights Committee / Comp. by R. Hansky, M. Sheinin. Institute of Human Rights at Abo Akademi University. Turku, 2004. pp. 260-261.

26. This case is specifically addressed in the articles by A. Kyrlezhev and P. Annikkino published in this issue of the journal.

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with their own religious and philosophical beliefs. The decision "against crucifixes" was interpreted by its opponents as a challenge to Christian civilization. 33 members of the European Parliament "acting together", as well as the authorities of Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, Romania, San Marino and the Russian Federation, took up the case after Italy's request to refer the case for review. The case was referred to the Grand Chamber of the ECHR , the highest body of the Court, and on March 18, 2011, the Grand Chamber made the opposite decision - "for crucifixes". Supporters of this decision presented it to the world as a victory over the virus of secularism. But if anyone has lost, it is not the virus, and not so much Ms. Lautsi and her already adult children, but the European Court of Justice itself. Lost positionally, yielding to the demonstrative pressure of the above-mentioned states 27. The created precedent is important not in the sense of the substance of the dispute, but as an undesirable example of State interference in the Court's activities. The court itself explained what the final decision was made on. Moreover, it made this the starting point of its reasoning: "First of all, the Court notes that the only question before it is whether, in the circumstances of the case, the presence of crucifixes in Italian public school classrooms is compatible with the requirements of Article 2 of Protocol No. 1 and Article 9 of the Convention." Article 9 protects, as is well known, freedom of religion. And article 2 of Protocol No. 1 specifies the right of parents to teach their children in accordance with their own philosophical or other views. The principle of secularism, which is the basis of the Italian Constitution 28 (as well as the Russian One), is not guaranteed by the norms of the Convention. The Lautsi decision states that "The European Court of Justice should also not resolve the issue of compatibility of the presence of crucifixes in State schools."-

27. As part of the Grand Chamber, judges elected from third-party States participated in the Lautsi case: Christos Rozakis (Greece), Giovanni Bonello (Malta), Anatoly Kovler (Russia), Gheorghe Nicolaou (Cyprus), Guido Raimondi (Italy), and Zdravka Kalaijieva (Bulgaria), who voted against the majority opinion. The second negative vote was taken by Judge Giorgio Malinverni (Switzerland).

28. "The State and the Catholic Church are independent and sovereign in their respective spheres" (article 7 of the Constitution of the Italian Republic). Constitutions of European States. In 3 volumes, Vol. 2. Moscow, Norma Publ., 2001, p. 104.

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a donation school with the principle of secularism embodied in Italian legislation " 29.

Judges of the European Court of Justice do not represent the States from which they are elected and are completely independent of them. "Judges shall participate in the work of the Court in their personal capacity" (article 21 of the Convention). The State does not have the right to recall a judge elected from it. But even these clear principles have not been able to shield the Court from the influence of States.

If we ignore the authority of the ECHR, the content of the decision of the Grand Chamber of the State Tax Service of 2009 is not much different from the previous decision of the ECHR in the same case in 2009. The conclusions, however, are the opposite. But these conclusions are not due to a change in the value chain, a revision of the principles, or a different interpretation of rights and freedoms, but to a slight shift in the" ruler " towards greater discretion of States.

Most of the discussion in Court centered on whether the crucifix in the interior of a secular school remains a religious symbol. It is significant that those who defended the crucifixion (the Italian government, etc.) argued that the crucifix is present in schools as a "passive symbol", "a tribute to a century-old tradition", as well as the presence of a cross on the flags of some states. In fact, states did not protect the crucifix, but their right to display it (use it). The applicant's party (Lautsi and the human rights organizations invited to the Court), on the contrary, insisted that the crucifix was more a religious symbol than an ornamental detail.

With the Constitutional Court of the Russian Federation before us, it is not difficult to see in the second decision in the Lautsi case the same distraction that the Constitutional Court regularly resorts to: the contested norm is interpreted in the constitutional sense (often directly opposite to what is written in this norm), after which it is concluded that it corresponds to the Constitution, but to understand it it is necessary on the contrary 30. That's hardly a good thing.

29. ECtHR Judgment of 18 March 2008, Lautsi and Others v. Italy (SPS Consultant Plus).

30. As an example, the Constitutional Court of the Russian Federation issued Decision No. 16-P of 23 November 1999 on the case concerning the review of the Constitutionality of paragraphs three and four of paragraph 3 of Article 27 of the Federal Law of 26 September 1997 on Freedom of Conscience and Religious Associations in connection with complaints by the Religious Society of Jehovah's Witnesses in Yaroslavl and religiously-

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But since the reasoning part of the decisions of the Constitutional Court also has the highest legal force as well as the operative one, this is quite enough to refer to this interpretation in legal practice in the future. Similarly, the text of the ECtHR judgments in the part designated "Opinion of the European Court" is no less significant than the conclusion on the existence or absence of a violation of the Convention in the case considered. And the Lautsi Ghosn judgment (despite the fact that the conclusion that there was no violation seems to have been pushed from the outside) contains essentially the same statements as in the first, 2009, decision on this complaint. If this is what the Court would have said, please do so, and begin by refusing to engage in the " battle for Christian civilization."

At the same time, the ECtHR again rejected state clericalization, in this case - in school: "The European Court has a fundamental duty to respect the decisions of the participating States in these matters, including the place given to religion, provided that these decisions do not entail any form of indoctrination."

It is significant that, while supporting the review of the first Lautsi judgment, Judge Giovanni Bonello (Malta), in a" special concurring opinion", contrasted the ECHR line" corrected "by this decision with the decision adopted at the same time in the case of Akdash v. Turkey (dated February 16, 2010). Judge Bonello wrote:

Most recently, this Court was asked to decide whether the Turkish authorities ' ban on distributing Guillaume Apollinaire's novel "Eleven Thousand Rods"is justified in a democratic society. 31 This novel could be classified as violent pornography due to its blatant disregard for modern moral norms. However, Europey-

go association "Christian Church of Glorification". The Constitutional Court recognized the imperative requirement of having a documented 15-year term of activity of a religious organization as not related to organizations registered under the 1990 law "On Freedom of Religion", although this does not follow from the text of the law. Another example. Constitutional Court decision No. 155 - 0 of May 12, 2011. The unconditional legislative ban on entry and stay of HIV-infected foreigners is interpreted as not excluding their legalization in the Russian Federation "for humanitarian reasons".

31. In the literary translation into Russian, the novel is called "Eleven thousand Sticks".

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The European Court of Justice courageously saved this stain of transcendent obscenity on the grounds that it is part of the European cultural heritage. In my opinion, it would be strange if this Court, while defending and rescuing this lawless, over-the-top, sickening obscenity drain on the basis of its apparently dubious membership in the "European heritage", would in the same breath deny the value of the European heritage of an emblem that has been recognized for centuries by millions of Europeans as an ever-fading symbol. symbols of redemption through universal love 32.

This juxtaposition is appropriate, but from a slightly different perspective. If you look at what the crucifix hung by the state is a symbol of and what Apollinaire's novel symbolizes in this context, this "landmark conflict" makes it obvious the essence of legal disputes about freedom of conscience and freedom of speech. The crucifixion, in the sense of the Lautsi case, becomes a sign of a total state, an omnipresent observer ("God sees everything"), and spiritual censorship prohibiting what the Akdash (Apollinaire) Court defended. The contradiction between the two solutions is obvious.

The Akdash case was the first case in the European Court's practice in which freedom in the arts was protected in such an extreme form and in such a sharp opposition to the state monopoly on "traditional morality". Akdash, the publisher, has published a Turkish translation of Apollinaire's novel, full of erotic fantasies depicted without regard to censorship. According to the prosecutor's office, the publisher was fined for distributing obscene and immoral materials designed, in the opinion of the authorities, to arouse and exploit the sexual feelings of citizens. The print run was seized, but (as was the case earlier with Muller's paintings) it was returned to the owner in the course of consideration of the complaint to the ECHR, which recognized this time "certain", and not "broad", as previously, the state's discretion in the field of moral protection. Whereas in previous decisions on such disputes, referring to the lack of a European consensus on religious and moral issues, the Court had withdrawn itself from interference, in this judgment the Court considered that State intervention was not responsible for the following:

32. ECtHR Judgment of 18 March 2008, Lautsi and Others v. Italy (SPS Consultant Plus).

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"urgent universal necessity" in a democratic society. The cultural, historical and religious peculiarities of the states did not outweigh one novel as part of the "European cultural heritage" (as part of the European struggle against bigotry).

Another case: the Slovak film critic Klein offended the feelings of believers.

In 1997, Milos Forman's film "The People against Larry Flint" was released in Slovakia. The poster again showed a crucifixion - not exactly a crucifix, but the hero of the film, whose hands and feet imitated the figure of the crucified person in the wrong place for the crucifixion. In Slovakia, the film's advertising stirred up religious feelings among bishops and Christian Children's Associations. The head of the church, Archbishop Jan Sokol, demanded that the authorities "fully consider the issue and take appropriate measures to seize the posters and film and bring to justice those who violated the laws", and at the same time compensate for the damage caused.

This is where the Strasbourg defendant Klein appears with his article " The Falcon sits on a maple tree; Larry Flint and seven slaps to the hypocrite." In the spirit of the well-known detractor Dario Fo, who was then awarded the Nobel Prize "for inheriting the traditions of medieval buffoons, denouncing power and authority and defending the dignity of the oppressed," Klein in his article ridiculed, and rather angrily, the archbishop: "I absolutely do not understand why decent Catholics will not leave the organization, headed by which is worth such a terrible person. Are they waiting for him to die? This is too indecisive. None of the members of the Communist Party of Czechoslovakia claimed in their defense: "I was waiting for Gusak and Yakesh to die. Then I would try to get compensation." Otherwise, we would still be living in trees." For this article, Klein was sentenced under Article 198 of the Criminal Code of Slovakia ("Discrediting the nation, race and faith"). to a fine of 15,000 Slovak crowns (375 euros).

The Court disagreed that by touching on the archbishop's identity, the applicant had thereby discredited and humiliated the Catholic faithful: "The fact that some members of the Catholic Church might have been offended by the applicant's criticism of the archbishop and his claim that he did not understand why decent Catholics would not leave this church, since it was headed by Archbishop Jan Sokol, can't affect

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on the position of the European Court of Justice. The Court agrees with the applicant's argument that the article not only did not interfere with the right of believers to freedom to profess their religion, but also did not discredit the essence of their religious faith." The Court found that the Slovak authorities had violated article 10: "Interference with the applicant's right to freedom of expression does not correspond to an acute social necessity and is not proportionate to the legitimate aim pursued".

In the Ginevski case, they also got to the Pope. Paul Ginevski, a journalist, sociologist and historian, responded to Pope John Paul II's encyclical" The Shining of Truth "in the Daily Paris with the article" The Darkness of Error". Ignoring Polites, Ginevski deduced from the foundations of Christian dogma the statement that "biblical anti-Judaism and the doctrine of the 'fulfillment' of the Old Testament by the New lead to anti-Semitism and create the ground on which the idea and execution of Auschwitz grew up." For this, according to the statement of a certain public organization (the association "General Union against Racism - for respect for the French and Christian person") Ginevski and the newspaper's editor-in-chief were prosecuted (fined) for publicly slandering the Christian community, which the ECtHR strongly disagreed with.

The court recognized that the text published by Ginevski "contains conclusions and wording that may offend, shock or cause concern to some people." It is known that the majority of French believers are Catholics who recognize the authority of the Pope. This does not mean, however, that those who do not recognize its infallibility cannot publicly criticize the encyclical, which for some is an inspired speech, and for others is no different from the article of the same Ginevski. But since the expressed opinion did not incite hatred and hostility, resentment and annoying statements themselves should be tolerated. Having concluded that the repressive intervention of the French authorities "did not meet a pressing social need", the Court essentially pointed out the opposite direction to the domestic courts that punished the applicant for insulting the religion of the titular nation: justice should protect the freedom of speech of those whose words are not supported by the majority, and not consider their voice as a provocation.

The words included in the epigraph of this article are just right for the decision in the Ginevski case.

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Understanding the legal policy of the ECHR in terms of measuring freedom of expression and traditional values is obviously relevant.

The European Court of Justice, with its careful search for balance, is already being knocked on the door by Russian citizens who are being persecuted in their country for expressing their worldview, defending the non-censorship of words and gestures. The intention to use the Criminal Code to protect the "feelings of believers" and other "traditional values" multiplies the number of complaints to the ECHR about violations of article 10 of the Convention by the state.

The above examples of ECtHR decisions are united by the fact that neither in Austria, nor even in Turkey, nor anywhere else, the penalties in such cases did not rise above the fine (with or without confiscation of works)33.

But the point is not only that the consequences of encroachments on "values" are measured in the Russian Federation by real terms of imprisonment. To understand the prospects for applying to the ECHR in cases of this type, the context in which they arise and take shape is important, bringing their defendants ultimately under the protection of the Convention. Here, too, the European Court of Justice will inevitably have to examine, first, whether the tradition itself exists and what exactly the national prosecutor's office and the courts defended, whether it really was, for example, the "deep feelings and beliefs" of religious citizens (as stated in the decision in the Wingrow case).

On the other hand, not every tradition, however venerable, is consistent with the principles and spirit of the Convention, according to which the European Court of Justice protects values "necessary in a democratic society". And it does it all more consistently. As can be seen from the decision in the Ginevski case, even the infallibility of the Pope was not recognized by the Court as so necessary.

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33. This alone prejudges the outcome of the ECtHR's consideration of the complaint of M. Alyokhina et al. against Russia (the Pussy Riot case).

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