CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 septembre 2019

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RUSSIA   (Application no. 25047/05)               JUDGMENT           STRASBOURG   10 September 2019     FINAL   10/12/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Pryanishnikov v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   Georgios A. Serghides,   Paulo Pinto de Albuquerque,   Helen Keller,   Dmitry Dedov,   Branko Lubarda,   Alena Poláčková, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 2 July 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 25047/05) against the Russian Federation lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Viktorovich Pryanishnikov (“the applicant”), on 15 June 2005. 2.     The applicant was represented by Mr A. Nachinkin, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.     The applicant alleged that the refusal to grant him a film reproduction licence had violated his freedom of expression. 4.     On 27   August 2009 notice of the application was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1957 and lives in St Petersburg. 6.     The applicant is a producer. He owns the copyright to over 1,500   erotic films. The films were approved for public distribution by the Ministry of Culture for audiences over eighteen years old, and the applicant holds valid distribution certificates in respect of them. He has also produced a film called City of the Future , which contained his election programme for the 2003 elections for the Governor of St Petersburg. 7.     In 2003 the applicant applied to the Ministry of the Press, Broadcasting and Mass Media (hereafter “the Ministry of the Press”) for a film reproduction licence. 8.     On 15 October 2003 the Ministry of the Press refused the applicant’s application for a licence. It referred to the fact that, according to information provided by a deputy Prosecutor General, the applicant “[was] involved in investigative measures concerning the illegal production, advertising and distribution of erotic and pornographic material and films”, an offence under Article 242 of the Criminal Code. 9.     The applicant challenged the refusal before the Commercial Court of Moscow. In particular, he claimed that the refusal breached his right to engage in business activities and his copyright to the films. He submitted that the films had been approved for distribution and that he had never been charged with the distribution of pornography. 10 .     On 20 May 2004 the Commercial Court of Moscow rejected the applicant’s challenge and upheld the decision of 15 October 2003, relying on section   9 of the Licensing Act and section 14 of the Protection of Children Act (see paragraphs 17 and 27 below). It found that the decision had been lawful and justified. It noted that the applicant had never been formally charged with the distribution of pornography and had only been questioned by the police as a witness. However, no decision had yet been taken in the criminal proceedings and “it could not be ruled out that [the applicant] was involved in the illegal production of pornographic films with the aim of distributing them”. Therefore, it was necessary to refuse his application for a licence in order to protect minors from pornographic material. 11 .     On 7 September 2004 the Ninth Commercial Appeal Court (hereafter “the Appeal Court”) upheld the judgment on appeal. It found that the applicant’s involvement in the distribution of pornography had been confirmed by material from the Internet containing offers to sell pornographic products. 12 .     On 22 November 2004 the Federal Commercial Court of the Moscow Circuit (hereafter “the Court of Cassation”) upheld the judgments, finding that they had been lawful. It noted in particular that the licence had been refused because the applicant “[was] involved in investigative measures concerning the illegal production of pornographic material”. The applicant was absent from the hearing. 13.     On 29 November 2004 a copy of the judgment was sent to the applicant. As the applicant did not receive it, he asked the Court of Cassation to send it to him again. He received a copy of the judgment on 18   April 2005. 14.     According to the applicant, the charges of producing and distributing pornography were subsequently dropped in the absence of corpus delicti in his actions, and the prosecutor’s office issued an official apology for unlawful prosecution. II.     RELEVANT DOMESTIC LAW A.     Freedom of expression 15.     The Constitution of the Russian Federation guarantees freedom of thought and expression, freedom to receive and impart information, and freedom of the mass media. It prohibits censorship (Article 29). B.     Criminal liability for the distribution of pornography 16.     The illegal production, distribution or advertising of pornographic material or objects, and the illegal selling of publications, films, videos, images or other objects of a pornographic nature were offences punishable by a fine or up to two years’ imprisonment (Article 242 of the Criminal Code, as in force at the material time). C.     Protection of children 17 .     Section 14(1) of the Law on Basic Guarantees of the Rights of the Child in the Russian Federation (no. 124-FZ of 24 July 1998, as in force at the material time – hereafter “the Protection of Children Act”) provided that the authorities of the Russian Federation were to take measures to protect children from information, propaganda and incitement harmful to their health or moral and spiritual development, such as, among other things, printed material, audio and video products advocating violence and brutality, pornography, drug abuse or disorderly behaviour. D.     Copyright, distribution certificates and film reproduction licence 1.     Copyright 18.     An author had the exclusive right to use his work by any method, such as by reproduction; distribution; importation; a public showing; public performance; broadcasting, including through cable channels; translation; and revision (section 16(1) and (2) of the Law on Copyright and Related Rights, no. 5351-I of 9 July 1993, in force at the material time – hereafter “the Copyright Act”). 19.     The authors of an audiovisual product were the director, the scriptwriter and the composer. Following the conclusion of a production agreement for an audiovisual product, the exclusive right to its reproduction, distribution, public performance, broadcasting or any other public showing was transferred from the authors to the producer, unless the agreement provided otherwise (section 13(1) and (2) of the Copyright Act). 2.     Registration of films and distribution certificates 20.     At the material time, the registration of films was regulated by Governmental Decree no. 396 of 28   April 1993 on the Registration of Films and Control of their Public Distribution (hereafter “the Registration of Films Decree”). 21.     All films intended for public (commercial and non-commercial) distribution or to be reproduced for the purposes of being sold, screened in cinemas or movie houses, hired out through video libraries or video rental facilities, or broadcast through television or cable channels were to be registered with the Ministry of Culture. Such registration pursued the aim of preventing the illegal use and distribution of films in the Russian Federation. 22.     The Ministry of Culture issued distribution certificates ( прокатные удостоверения ) in respect of films which had been successfully registered. A distribution certificate indicated recommended age restrictions. 23.     Individuals or legal entities owning the copyright to films could sell them for distribution to cinemas, cultural or educational centres, television production companies (including cable television) or other commercial or non-commercial organisations, or make copies for the purpose of selling the films or hiring them out, or distributing them through video libraries or hire centres. However, this was only possible after the films had been registered and distribution certificates issued. 24.     The Ministry of Culture could refuse to issue a distribution certificate if the relevant applicant had not complied with the established procedure, or in other cases prescribed by law. The refusal could be challenged before a court. 25.     By Order no. 112 of 15 March 2005, the Federal Culture and Cinematography Agency approved the Regulation on the Age Classification of Audiovisual Products. The regulation provides that the registration of a film may be refused if the film promotes: war; violence or cruelty; racial, ethnic, religious or social superiority or hatred; or pornography. It defines pornography as the naturalistic and detailed presentation of a sexual act or the detailed depiction of naked genitals in the process of sexual contact, whose primary purpose is to cause sexual arousal in the viewer and which has no artistic or educational aim, as well as the purposeless depiction of group sex. The regulation further provides that the depiction of a sexual act or other erotic scenes, as well as scenes of sexual violence and harassment, is permissible in films classified as being for distribution only to those aged eighteen or over, provided that those scenes are justified by the plot and artistic aim of the film. 3.     Film reproduction licence 26 .     A licence was required for the reproduction (production of copies) of audiovisual products and audio-recordings on all types of medium (section   17(86) of Law no. 128-FZ of 8 August 2001 on the Licensing of Certain Activities, in force at the material time – hereafter “the Licensing Act”). 27 .     A licence could be refused if the relevant application contained untrue or misrepresented information, or if the applicant or the objects belonging to him or used by him did not meet the licensing requirements and conditions. The refusal could be challenged before a court (section 9(3) and (4) of the Licensing Act). 28.     In addition to technical requirements regarding the equipment used, the licensing requirements included the requirement that the applicant possess documents confirming his right to reproduce audiovisual products – such as a copyright agreement or permission for reproduction from the copyright owner – and a distribution certificate (Governmental Decree no. 381 of 4 June 2002 on Licensing the Reproduction (Making of Copies) of Audiovisual Products and Audio-Recordings on All Types of Medium, in force at the material time). 29.     On 4   May 2008 section 17(86) of the Licensing Act was amended. The amended section 17(86) stated that persons who had copyright to audiovisual products and audio-recordings under a provision of federal law, or under a contract, did not need a licence to reproduce such material. On 4   May 2011 the Licensing Act was repealed and replaced by Law no.   99 ‑ FZ, which reproduced verbatim the amended section 17(86) of the Licensing Act (section 12(38) of Law no. 99-FZ). E.     Discontinuation of criminal proceedings 30 .     The Code of Criminal Procedure of 2001 provides that a person who has been acquitted or against whom criminal proceedings have been discontinued is entitled to “rehabilitation” ( реабилитация ) (Article   134). A prosecutor issues an official apology to the rehabilitated person on behalf of the State (Article 136 § 1). F.     Service of a copy of a final judgment 31.     A copy of a judgment of the Court of Cassation must be sent to the parties within five days of the judgment being adopted (Article 289 § 4 of the Code of Commercial Procedure of 24 July 2002). III.     RELEVANT COUNCIL OF EUROPE MATERIAL 32 .     The relevant extracts from Recommendation No. R (89) 7 of the Committee of Ministers to member states concerning principles on the distribution of videograms having a violent, brutal or pornographic content (adopted by the Committee of Ministers on 27 April 1989 at the 425th meeting of the Ministers’ Deputies) read as follows: “The following principles are designed to assist member states in strengthening their action against videograms having a violent, brutal or pornographic content – as well as those which encourage drug abuse – in particular for the purpose of protecting minors. They should be envisaged as a complement to other existing Council of Europe legal instruments. These principles concern in particular the distribution of videograms. 1.     Systems for the distribution of videograms The member states should: –     encourage the creation of systems of self-regulation, or –     create classification and control systems for videograms through the professional sectors concerned or the public authorities, or –     institute systems which combine self-regulatory with classification and control systems, or any other systems compatible with national legislation. In all cases, member states remain free to make use of criminal law and dissuasive financial and fiscal measures. ... 3.     Classification and control systems 3.1.     The member states should encourage the creation of systems of classification and control of videograms by the professional sectors concerned in the framework of self-regulatory systems, or through the public authorities. Such systems may be implemented either prior to, or following the distribution of videograms. ... 3.3.     The classification and control systems shall involve either the issue of a free distribution certificate, a limited distribution permit specifying the videogram’s distribution conditions, or possibly an outright prohibition. 3.4.     Under the classification and control system, the age of the public to whom the videogram can be distributed shall be specified according to national criteria. 3.5.     All classified videograms shall be registered and their material mediums (video-cassettes, videodiscs, etc.) shall display in a clear and permanent fashion the classification of the videograms and the public for whom they are intended. In the case of material mediums featuring several videograms, the member states shall take measures so that the most restrictive classification be applied. 3.6.     When the video classification procedure is separate from that of cinematographic films, the member states shall look for consistency between the two, in so far as possible, but taking account of the differences between the two media. 3.7.     Allowance should be made, within the classification and control system, for simplified procedures or exemption of procedures for certain types of programmes, such as material whose purpose is educational, religious or informative. These exemptions should not apply to programmes having an unduly pornographic or violent content. 3.8.     The control of the distribution of videograms shall apply to the distribution of both nationally produced videograms and imported ones. ... 6.     Application of criminal law In conjunction with, parallel to, or independently from the application of classification and control systems, or as an alternative to such systems, the member states should consider if the application of their criminal law concerning videograms is effective in dealing with the problem of videograms having a violent, brutal or pornographic content, as well as those which encourage drug abuse.”   THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33.     The applicant complained about the refusal to grant him a film reproduction licence. He relied on Article 10 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     Submissions by the parties 1.     The applicant 34.     The applicant submitted that the refusal to grant him a film reproduction licence had interfered with his right to freedom of expression. That interference had been unlawful, had not pursued any legitimate aim and had been unjustified. The domestic decisions refusing to grant him a film reproduction licence had not contained any proof that he had ever distributed pornography. The domestic courts had relied on information from unspecified websites obtained by them proprio motu in the absence of a request from the parties. They had not verified that information and had not made any assessment of it. 35.     The applicant further submitted that he had never been convicted of producing or distributing pornography. The charges against him had been dropped for absence of corpus delicti in his actions, and the prosecutor’s office had issued an official apology for unlawful prosecution. The applicant asserted that he had never distributed pornographic videos, and insisted that he possessed requisite distribution certificates for all the videos which he owned and intended to distribute. The Ministry of Culture had therefore certified that they were not pornographic or otherwise illegal. However, the refusal of a film reproduction licence had made it impossible for him to copy and distribute those videos. 36.     Lastly, the applicant argued that an unsubstantiated and therefore hypothetical possibility that he might distribute pornographic videos at some point in the future could not serve as lawful grounds for a refusal to grant him a film reproduction licence. 2.     The Government 37.     The Government conceded that the refusal to grant the applicant a film reproduction licence had interfered with his right to freedom of expression. That interference had been based on legal provisions which were clear and foreseeable. In particular, section 9 of the Licensing Act provided that a film reproduction licence could be refused if reproduction was unlawful (see paragraph 27 above). The domestic courts had found that the videos distributed by the applicant were pornographic and could therefore be harmful to citizens’ health and rights. 38.     The Government submitted that Article 10 § 1 of the Convention expressly permitted the licensing of broadcasting, television or cinema enterprises. Film reproduction licensing was a measure of State regulation to prevent the imparting of information and ideas judged incompatible with respect for the freedom of thought, conscience and religion of others (they referred to Otto-Preminger-Institut v. Austria , 20   September 1994, Series A no. 295 ‑ A). The pornographic videos produced and distributed by the applicant came under the category of such information. Production and distribution of pornography was a criminal offence in Russia. Moreover, under the 1923 Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, Russia had an obligation to punish the production, distribution, public showing and hiring out of pornographic material. The Government also referred to Recommendation No. R (89) 7 of the Committee of Ministers of the Council of Europe to member states concerning principles on the distribution of videograms having a violent, brutal or pornographic content, which they interpreted as requiring a complete prohibition of pornographic videos (paragraph 3.3, see paragraph 32 above). 39 .     The Government further argued that the interference had pursued the legitimate aims of protecting morals and the rights of others, in particular protecting children from access to pornographic material. Moreover, it had been necessary in a democratic society for the following reasons. The applicant had previously been granted film reproduction licences on many occasions. However, on this occasion it had been established that the film he intended to distribute was clearly pornographic. If that film had been distributed, it would not have been subject to any form of control by the authorities and could have been viewed by children (compare Hoare v. the United Kingdom , no.   31211/96, Commission decision of 2 July 1997). The domestic courts had found that there were relevant and sufficient reasons to prohibit the film’s distribution, and it was not the Court’s role to question that finding. Furthermore, at the material time the applicant had been involved in a criminal investigation relating to the production of pornography. A limitation of his freedom of expression had therefore been justified. 40.     The Government also mentioned that the domestic law had since been changed, so an owner of audiovisual products no longer needed to obtain a film reproduction licence to be able to reproduce and distribute them. The applicant was therefore no longer prevented from reproducing and distributing the films owned by him, even though he did not have a film reproduction licence. He had therefore lost his victim status. 41.     Lastly, the Government submitted that the applicant had not submitted any documents confirming that the prosecutor’s office had apologised to him for unlawful prosecution. He had therefore attempted to mislead the Court on an issue that was important for the proper determination of the case (they referred to Sarmin and Sarmina v. Russia (dec.), no. 58830/00, 22 November 2005). B.     The Court’s assessment 1.     Admissibility (a)     Alleged abuse of the right of individual application 42.     The Court reiterates that under Article 35 § 3 of the Convention an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untruths. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references). 43.     The Court notes that the criminal charges against the applicant were brought after the facts of the present case. The Government did not deny that they had eventually been dropped, they only disputed the applicant’s assertion that the prosecutor had apologised for unlawful prosecution. However, domestic law requires a prosecutor to apologise in the event that criminal proceedings are discontinued (see paragraph   30 above). The fact that the applicant did not submit a copy of the official apology therefore appears to be due to a simple omission rather than an intention to mislead the Court. In any event, the domestic courts did not rely on the criminal charges against the applicant in their decisions concerning the reproduction licence, explicitly noting that at that time the applicant had not been formally charged with any criminal offences. It follows that the information about the development of the criminal proceedings after the facts of the present case is not essential for deciding the case. 44.     The Court concludes from the above that there is no basis for finding that the applicant submitted untrue information concerning the very core of the case with the intention of misleading the Court and thereby abused his right of individual petition. In view of the foregoing considerations, the Court rejects the Government’s request for the application to be declared inadmissible under Article 35 § 3 of the Convention as an abuse of the right of application. (b)     Victim status 45.     In so far as the Government argued that the applicant had lost his victim status owing to a change in the domestic law, the Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France , 25   June 1996, § 36, Reports of Judgments and Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Konstantin Markin v. Russia [GC], no. 30078/06, § 82, ECHR 2012 (extracts)). 46.     In the present case, the national authorities did not expressly acknowledge a breach of Article   10   of the Convention in the domestic proceedings or in the Strasbourg proceedings. Nor could the change in the domestic law be interpreted as acknowledging, in substance, that the applicant’s right to freedom of expression had been breached. Moreover, the change in the law took place more than four years after the refusal to grant a reproduction licence to the applicant, and was in no way related to the present case. 47.     In the absence of an acknowledgment by the national authorities of a breach of the applicant’s rights under the Convention, the Court holds that, for the purposes of Article 34 of the Convention, he may claim to be the victim of the alleged violation of the right to freedom of expression. (c)     Conclusion on admissibility 48.     The Court notes that the application is not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     General principles 49.     The Court refers to the recapitulation of its general principles concerning freedom of expression in the recent Grand Chamber case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 75, 27 June 2017. 50.     The Court further reiterates that freedom of expression includes freedom of artistic expression – notably within freedom to receive and impart information and ideas – which affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression (see Müller and Others v.   Switzerland , 24 May 1988, §§ 27 and 33, Series A no. 133, and Kaos GL v. Turkey , no. 4982/07, § 47, 22 November 2016). 51.     However, artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10 of the Convention. In accordance with the express terms of that paragraph, whoever exercises his freedom of expression takes on “duties and responsibilities”, and the scope of those duties and responsibilities will depend on his situation and the means he uses (see Vereinigung Bildender Künstler v.   Austria , no. 68354/01, § 26, 25   January 2007, and Akdaş v.   Turkey , no.   41056/04, § 26, 16 February 2010). 52.     The Court also bears in mind that under the third sentence of Article   10 § 1, States are permitted to regulate, by means of a licensing system, the way in which broadcasting, television or cinema enterprises are organised in their territories, particularly in their technical aspects. The grant of a licence may also be made conditional on such matters as the nature and objectives of a broadcasting, television or cinema enterprise, its potential audience at national, regional or local level, the rights and needs of a specific audience and the obligations deriving from international legal instruments. This may lead to interferences whose aims will be legitimate under the third sentence of paragraph 1, even though they may not correspond to any of the aims set out in paragraph 2. However, the compatibility of such interferences must be assessed in the light of the requirements of paragraph 2 (see, mutatis mutandis , Demuth v. Switzerland , no. 38743/97, § 33, ECHR 2002 ‑ IX; Meltex Ltd and Movsesyan v. Armenia , no. 32283/04, § 76, 17 June 2008; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 139, ECHR 2012). 53.     Lastly, as regards the protection of morals, it is not possible to find in the legal and social orders of the Contracting States a uniform European conception of morals. The view taken of the requirements of morals varies from time to time and from place to place, especially in our era, characterised as it is by a far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements, as well as on the “necessity” of a “restriction” or “penalty” intended to meet those requirements (see Müller and Others , cited above, §   35, and Kaos GL , cited above, § 49). (b)     Application to the present case 54.     It has not been disputed between the parties that the refusal to grant the applicant a film reproduction licence amounted to an interference with his right to freedom of expression. Indeed, the applicant owns the copyright to over 1,500 erotic films. He holds valid distribution certificates for all of them, therefore they have been approved by the competent authorities for public distribution in Russia. However, under the domestic law in force at the material time, the applicant needed a film reproduction licence to be able to make copies of those films for the purpose of selling them, broadcasting them, or distributing them to cinemas, video libraries or video rental facilities. Without such a licence, the applicant was therefore de facto unable to distribute them. Given that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory (see Dvorski v. Croatia [GC], no. 25703/11, § 82, ECHR 2015, with further references), the Court does not see any reason to disagree with the parties that the refusal to issue a film reproduction licence amounted to an interference with the applicant’s freedom of expression (see, mutatis mutandis , cases concerning refusals to issue broadcasting licences, such as Meltex Ltd and Movsesyan , cited above, §   74, with further references, and Centro Europa 7 S.r.l. and Di Stefano , cited above, § 136, with further references). 55.     The Court has no reason to doubt that the interference was “prescribed by law” – in particular by section   9 of the Licensing Act combined with section 14 of the Protection of Children Act – and “pursued legitimate aims” for the purposes of Article 10 §   2: protecting morals (see Müller and Others , cited above, § 30, and Kaos GL , cited above, §   55) and the rights of others, in particular children. It remains to be determined whether the interference was “necessary in a democratic society”. 56.     To ascertain whether the “necessity” of the interference was convincingly demonstrated in the present case, the Court must essentially have regard to the reasons advanced by the domestic courts (see Sapan v.   Turkey , no. 44102/04, § 37, 8 June 2010, and Kaos GL , cited above, §   57). The only reason advanced by the domestic courts for refusing a reproduction licence in the present case was that the applicant might be producing or distributing pornography. The domestic courts relied on the following grounds in support of the suspicion against the applicant: (i)   referring to an ongoing criminal investigation in which the applicant had been questioned as a witness, the Commercial Court of Moscow found that “it could not be ruled out that [the applicant] was involved in the illegal production of pornographic films with the aim of distributing them” (see paragraph 10   above); (ii) the Appeal Court referred to (unspecified) material from the Internet containing offers to sell pornographic products (see paragraph 11   above); and (iii) the Court of Cassation noted that the applicant “[was] involved in investigative measures concerning the illegal production of pornographic material” (see paragraph 12 above). The domestic courts’ judgments did not give any further details or mention any other facts in support of the suspicion against the applicant. 57.     In particular, there is no indication in the domestic judgments that any evidence corroborating the suspicion against the applicant was examined in the judicial proceedings. Although the courts referred to the ongoing criminal investigation into the illegal production and distribution of pornography, they did not rely on any document from the criminal case file suggesting that the applicant was suspected of that offence and giving reasons for that suspicion. Indeed, the domestic courts explicitly noted that the applicant had been involved in the investigative measures as a witness rather than a suspect. 58.     As regards the material from the Internet containing offers to sell pornographic products, mentioned by the Appeal Court, that court did not give any description of the products offered for sale or any reasoning as to why it believed them to be pornographic. Nor did it explain why it considered that it was the applicant who had produced or distributed those products or published the offers. 59.     Further, as regards the Government’s argument that it had been established that the applicant intended to distribute a clearly pornographic film (see paragraph 39 above), the Court notes that they did not provide any information about that film, such as its name or date of production, a copy of it or at least a description of its content, a domestic decision establishing that it was pornographic and explaining the reasons for that finding, or any evidence that the applicant had produced that film or was involved in its distribution. Nor did the domestic courts’ judgments contain references to any specific pornographic film which, as claimed by the Government, the applicant had been found to have been trying to distribute. 60.     In these circumstances, the Court finds that the domestic judgments – in so far as they relied on a suspicion regarding the applicant’s involvement in producing and distributing pornography – were based on assumptions rather than reasoned findings of fact. Therefore, the domestic courts did not provide relevant and sufficient reasons for the finding that the applicant produced or distributed pornography. 61.     Further, although in their judgments the domestic courts briefly referred to the need to protect minors from pornographic material, from the domestic judgments it does not appear that the applicant was ever suspected of distributing pornography to children. Indeed, in Russia at the material time the ban on distributing pornography was not limited to minors, and extended to any audience. The Court has recently found that even a temporary ban on distributing a piece of pornographic material to any audience was not justified. It held that the domestic authorities could have applied a less restrictive measure, for example a ban on selling the material in question to persons under eighteen years old, an obligation to sell it with a special cover with a warning addressed to persons under eighteen years old, or an obligation to sell it via a subscription only (see Kaos GL , cited above, §   61). 62.     Lastly, the Court observes that the refusal of a film reproduction licence made it impossible for the applicant to distribute any films, including the more than 1,500 films for which the competent authorities had issued distribution certificates after verifying that they were not pornographic, or indeed any other audiovisual products or audio-recordings on any types of medium (see paragraph 26 above). There is no evidence in the text of the domestic judgments that the domestic courts weighed the impact which the refusal of a film reproduction licence would have on the applicant’s ability to distribute the films for which he had distribution certificates or on his freedom of expression in general. The domestic courts therefore failed to recognise that the present case involved a conflict between the right to freedom of expression and the need to protect public morals and the rights of others, and failed perform a balancing exercise between them. 63.     The Court considers that such a far-reaching restriction on the applicant’s freedom of expression, depriving him of the opportunity to distribute any audiovisual products or audio-recordings to any audiences, cannot be considered justified. There was therefore no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. 64.     There has accordingly been a violation of Article   10 of the Convention. II.     APPLICATION OF ARTICLE   41 OF THE CONVENTION 65.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 66.     The applicant asked to be granted a film reproduction licence. He did not claim pecuniary or non-pecuniary damage. 67.     The Government submitted that the applicant’s activities were no longer subject to licensing requirements. 68.     The Court notes that the domestic law was amended after the facts of the present case, so the applicant no longer needs a film reproduction licence to distribute films for which he owns the copyright. The applicant’s request for a film reproduction licence is therefore now redundant. 69.     In these circumstances, the Court does not find it reasonable or practical to order any award under Article 41. In any event, any decision on the general or individual measures to be applied in the present case must remain the responsibility of the Committee of Ministers, discharging its supervisory functions under Article 46 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 10 of the Convention;   3.     Dismisses the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 September 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Stephen Phillips   Vincent A. De Gaetano   Registrar   President In accordance with Article   45 §   2 of the Convention and Rule   74 §   2 of the Rules of Court, the separate opinions of Judges Pinto de Albuquerque and Dedov are annexed to this judgment. V.D.G. J.S.P. CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE I.   Introduction II.   The Russian legal framework on pornography III.   The European case-law on pornography IV. The international-law framework on pornography V. The prohibition of pornography in comparative law VI. The international call for co-regulation of harmful online content VII. The State’s positive obligation to protect children from pornography VIII. The State’s positive obligation to prohibit extreme pornography IX. Conclusion I.   Introduction 1. I concur with the finding of a disproportionate interference with the applicant’s rights under Article 10 of the European Convention on Human Rights (“the Convention”). However, I would like to expand on three distinct questions which deserve to be developed further. 2. Firstly, the Chamber failed to address head-on the question whether the criminalisation of the production and distribution of pornography in any form and to any audience is admissible under the Convention, in spite of the fact that this question was specifically raised by the respondent State. Indeed, the Chamber ignored the Russian Government’s assertion that they are confronted with contradictory international obligations regarding pornography. Secondly, the Chamber did not clarify the State’s obligation to protect children [1] from pornography. Specifically, it did not address the question, raised in the Government’s observations and in the internal domestic proceedings, whether the Convention requires the Contracting Parties to prohibit and punish the distribution of pornography to children. Here again, the Russian Government’s contention remained unheeded. Thirdly, I find it particularly timely for the Court to deal with the question of pornography, including pornography for adult consumption, in a principled manner, in the light of the fresh impetus which has been given to the Council of Europe’s work in the area of violence against women by the Council of Europe Convention on preventing and combating violence against women and domestic violence [2] . The Istanbul Convention requires the States Parties to respond to the phenomenon of violence against women with a holistic approach, which necessarily involves tacking the particularly negative impact of violent and extreme pornography on women.   II.   The Russian legal framework on pornography 3. At the time of the facts, Article 242 of the Russian Criminal Code provided that the illegal production, distribution or advertising of pornographic material or objects, and the illegal selling of publications, films, videos, images or other objects of a pornographic nature were offences punishable by a fine or up to two years of imprisonment [3] . 4. Under Governmental Decree no. 396 of 28 April 1993, a film’s distribution depends on the delivery of a distribution certificate by the Ministry of Culture of the Russian Federation, which is competent for verifying whether audio-visual material contains any element which is criminally liable in the Russian Federation - for instance, pornography. On 15 March 2005 the Federal Culture and Cinematography Agency approved the Regulation on the Age Classification of Audiovisual Products, which provides that the registration of a film may be refused if the film promotes pornography. Pornography is defined as the naturalistic and detailed presentation of a sexual act or the detailed depiction of naked genitals in the process of sexual contact, whose primary purpose is to cause sexual arousal in the viewer and “which h