CONCURRING OPINION OF JUDGE DEDOV

I agree that the authorities violated the Convention in the present case, and the Court rightly pointed out the deficiencies of the domestic procedures. My only concern is the applicability of Article 10 to the present case.

The authorities approved the public performance (“ прокат ” or “distribution” in the terms of the judgment) of more than 1,500 erotic films produced by the applicant or purchased by him for the purpose of distribution, but then refused to grant him a reproduction licence. While the former right could be considered a right to impart information, the latter pertains to copyright – in this case, the right to produce copies of the film for sale purposes as confirmed in paragraph 54 of the judgment – and therefore it should have been covered by Article 1 of Protocol No. 1.

Indeed, the production of copies could be considered a necessary part of the process for the purpose of public performance of the films. This approach should be based on the nature of the information, opinions and ideas under Article 10, and this is a weak point of the judgment, in my view. Article 10 is designed to protect democratic values, whereas erotic scenes could be attributed to the applicant ’ s self-fulfilment, and therefore to his private life. Within the domestic proceedings, the parties did not disagree about the content of the applicant ’ s films, they did not discuss any political context, including the elections, and the applicant did not raise any such arguments.

Certainly, the issue of pluralism in the audiovisual sphere was not at stake at this case, and the case-law regarding this part of Article 10 as mentioned in paragraph 52 of the judgment should not have been used for the purpose of the examination of the case (see, for example, the leading authority Centro Europa 7 S.r.l . and Di Stefano v. Italy [GC], no. 38433/09, ECHR 2012). In paragraphs 129-30 of the Centro Europa judgment the Court stressed that “ it is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself (see Manole and Others v. Moldova , no. 13936/02, § 95, ECHR 2009, and Socialist Party and Others v. Turkey , 25 May 1998, §§ 41, 45 and 47, Reports 1998-III)”. The Court went on to observe that “to ensure true pluralism in the audio-visual sector in a democratic society, it is not sufficient to provide for the existence of several channels or the theoretical possibility for potential operators to access the audio-visual market. It is necessary in addition to allow effective access to the market so as to guarantee diversity of overall programme content, reflecting as far as possible the variety of opinions encountered in the society at which the programmes are aimed”. Again, there is no political context in the present case.

The Court in the present case tried to expand the sphere of freedom of expression to include the freedom of artistic expression – notably as part of the 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. In paragraph 52 of the judgment the Court referred to its case-law to support the above idea, including the case of Kaos GL v. Turkey (no. 4982/07, 22 November 2016); however, that case does not correspond to the present case because it relates to the right of an LGBT association – in other words, a minority group – to freedom of expression.

Under those circumstances, in my view, the application in the present case is not compatible ratione materiae with Article 10 of the Convention.

As regards ideas, or in other words, the very content of information, even the domestic law provides that the depiction of erotic scenes is permissible for the purpose of the issuing of a performance certificate, provided that those scenes are justified by the plot and artistic aim of the film (see paragraph 25 of the judgment). There was no dispute between the parties that erotic scenes took up about 95% of each of the applicant ’ s films. However, the authorities granted the applicant the performance certificates in breach of the domestic law, and I can only regret that such contradictory decisions were taken by the domestic authorities. Since the Court, although master of its own procedure, applied the democratic rule under Article 10 to erotic films, I should also regret how the Convention was interpreted by the Court in the present case.

[1] For the purpose of this opinion, I will consider any person under the age of 18 to be a child, according to the standard set by the United Nations Convention on the Rights of the Child. This does not prevent States Parties to the European Convention on Human Rights from extending the legal protection of children beyond that age.

[2] CETS No. 210, hereafter “the Istanbul Convention”.

[3] See paragraph 16 of the present judgment.

[4] See paragraph 25 of the present judgment.

[5] Idem.

[6] Hoare v. the United Kingdom , no. 31211/96, Commission decision of 2 July 1997.

[7] As in the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, the Wingrove v. the United Kingdom judgment of 25 November 1996, Reports 1996, and the Otto-Preminger- Institut v. Austria judgment of 20 September 1994, Series A no. 295-A.

[8] As I wrote in my opinion in Mouvement Raelien v. Switzerland [GC], no. 16354/06, 13 July 2012, “The State may not unduly suppress or restrict free communication of all believers, agnostics, atheists and sceptics, under the guise of respecting the religious sentiment of the majority. Consequently, freedom of expression allows for criticism of religion, churches, religious institutions and the clergy, as long as it does not derail into defamation (i.e., deliberate insult of persons and institutions), or hate speech (i.e., promotion of hatred against a religious group) or blasphemous speech (i.e., wilful deprecation of a particular religion by denigrating its doctrine or its deities).”

[9] I.A. v. Turkey, no. 42571/98, 13 September 2005. In their joint dissenting opinion, Judges Costa, Cabral Barreto and Jungwiert invited the Court to revisit the Wingrove and Otto-Preminger- Institut case-law.

[10] KAOS GL V. Turkey , no. 4982/07, § 61, 22 November 2016.

[11] See paragraph 38 of the present judgment.

[12] CEDAW General Recommendation No. 19: Violence against Women, 1992. See also Report of the Special Rapporteur on violence against women, its causes and consequences on online violence against women and girls from a human rights perspective, A/HRC/38/47, 14 June 2018, § 27: “Risk of harm arises from both online content (sexist, misogynistic, degrading and stereotyped portrayals of women, online pornography) and behaviours (bullying, stalking, harassment, intimidation facilitated and perpetrated via social media, tracking applications, and profiling technology).”

[13] General Comment No. 28: The equality of rights between men and women, adopted by the Human Rights Committee at the Sixty-eighth Session, CCPR/C/21/Rev.1/Add.10, 29 March 2000, § 22.

[14] See paragraph 38 of the present judgment.

[15] See point 6 of Recommendation No. R (89) 7.

[16] PACE Report, doc. 12719, 19 September 2011, on Violent and extreme pornography, by the (Former) Committee on Equal Opportunities for Women and Men Rapporteur Mr Michał STULIGROSZ.

[17] Council of Europe Gender Equality Strategy 2018-2023, paragraph 40.

[18] I bid , paragraph 45.

[19] See at: http://website-pace.net/fr/web/as-ega/main . See also, within the European Union, the European Parliament Resolution of 26 February 2014 on sexual exploitation and prostitution and its impact on gender equality, when it highlights that pornography, especially online pornography, creates gender stereotypes, which may have the effect of presenting women as commodities.

[20] They are Albania, Austria, Belgium, Cyprus, the Czech Republic, Finland, Greece, Hungary, Ireland, Italy, Luxembourg, Malta, Montenegro, Norway, Poland, Romania, Russia, Serbia, Slovakia and Turkey. Denmark, Germany and the Netherlands (with regard to the European territory) withdrew from this Convention in 1968, 1974 and 1985 respectively.

[21] See the data provided in the PACE Report, doc. 12719, 19 September 2011, cited above.

[22] On this law, see Julia Hornle , “Countering the dangers of online pornography, Shrewd regulation of lewd content”, in European Journal of Law and technology , vol. 2, no. 1, 2011, pp. 1-26.

[23] § 184 Abs. 1 Nr . 7 of the Criminal Code was found compatible with the German Basic Law by the Federal Constitutional Court ( BVerfGE v. 17.1.1978 I 405 - 1 BvL 13/76).

[24] R v . Butler [1992] DLR (4th) 44.9.

[25] 413 U.S. 15 (1973).

[26] 481 U.S. 497 (1987).

[27] New York v. Ferber , 458 U.S. 747 (1982). The Court ruled that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.

[28] Osborne v. Ohio , 495 U.S. 103 (1990).

[29] Reno v. American Civil Liberties Union , 521 U.S. 844 (1997).

[30] Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002).

[31] See paragraph 39 of the present judgment.

[32] Article 18, Convention on the Rights of the Child 1989.

[33] Directorate General of Human Rights and Legal Affairs of the Council of Europe, Protecting children from harmful content: Report prepared for the Council of Europe’s Group of Specialists on Human Rights in the Information Society by Andrea Millwood Hargrave, June 2009.

[34] Ibid.

[35] Recommendation CM/Rec(2018)7 of the Committee of Ministers of the Council of Europe on Guidelines to respect, protect and fulfil the rights of the child in the digital environment, September 2018.

[36] Ibid.

[37] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, Article 17(e): “Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.”

[38] See my opinion in the case of Söderman v. Sweden [GC], no. 5786/08, 12 November 2013: “In view of this broad consensus and constant practice, the criminalisation of child pornography, namely, any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes, is now part of international customary law, binding on all States”.

[39] See, a fortiori , KAOS GL v. Turkey , cited above, § 61.

[40] Already pointing in this direction, Recommendation Rec (2001)8 of the Committee of Ministers on self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services), adopted on 5 September 2001.

[41] UN Economic and Social Council [ECOSOC], “Preliminary Report of the Special Rapporteur on Violence Against Women,” ¶ 240, UN Doc. E/CN.4/1995/42 (Nov. 22, 1994) (submitted by Radhika Coomaraswamy ) (“[Many] definitions fail to address the issue that most pornography represents a form of violence against women and that the evidence shows that it is directly causative of further violence against women.”).

[42] See the studies referred to in David Makin and Amber Morczek , “The dark side of internet searches: a macro-level assessment of rape culture”, in International Journal of Cyber Criminology , vol. 9, no. 1, pp. 1-23.

[43] See my opinions in Volodina v. Russia , no. 41261/17, 9 July 2019, and ValiulienÄ— v. Lithuania , no. 33234/07, 26 March 2013.

[44] An act which threatens a person’s life or an act which results, or is likely to result, in serious injury to a person, including rape or any other type of sexual assault.

[45] An act which involves sexual interference with a human corpse.

[46] An act which involves a person performing an act of intercourse or oral sex with an animal (whether dead or alive).

[47] See my opinions in Volodina v. Russia and ValiulienÄ— v. Lithuania, both cited above.

[48] See paragraph 22 of the present judgment.

[49] OECD: Working Party on Information Security and Privacy, The protection of children online: Risks faced by children online and policies to protect them, 2 May 2011.

[50] See paragraphs 29 and 40 of the present judgment.