To what extent prohibition on the “Mahsati” movie is legal?

Analysis

On December 4, news was disseminated about the ban on the film “Mahsati”, directed by Suad Gara. As reports suggest, the Artistic Council under the Cinema Agency of the Republic of Azerbaijan did not consider the movie appropriate to issue a license and register, which was scheduled to be shown at the Baku Film Festival. Due to the failure, the film was removed from the festival's agenda.

Even though the text of the decision is not available in open information resources, the basis for the Artistic Council's decision in the news was considered to be “the presentation of Mahsati Ganjavi in ​​erotic scenes, gross violations of normative-ethical nature, and conceptual inconsistencies”. Discussions around the ban on the film grew and led to scandalous commentaries. Despite there being those who expressed a neutral attitude to the approach in the film, most public figures who expressed a position accused the film of disrespect for a historical figure and decadence.

This is not the first film to be officially or unofficially banned in the country; there is a long history of such bans in the years of independence, from the first scandalous ban of film “Dog”, to the allegedly politically motivated film “Ehram TV” to the film “The Death of Stalin”, whose ban was not unanimously welcomed by the public.

“Tribunat” has analyzed the legality for a failure to provide film “Mahsati” with a license and stemming out legal violations.

The Law “On Cinematography” is the main legislative act regulating the distribution and screening of films in the country. According to Article 7 of the Law, in order to prevent the illegal screening of films, the distribution of films promoting pornography or violence, all films intended for mass screening (cinema halls, video halls, video broadcasting stations, broadcasting and rebroadcasting services) in the territory of the Republic of Azerbaijan are registered and included in the state register of films. This register is maintained by the Ministry of Culture.

According to that article, the distribution and screening of films is carried out in accordance with the procedure established by the Ministry of Culture, taking into account the requirements of the aforementioned Law, the Law of the Republic of Azerbaijan “On the Protection of Children from Harmful Information” and other regulatory legal acts in the field of cinematography. The inclusion of films in the register for distribution and screening is regulated by the “Rules for the Distribution and Screening of Films”. According to paragraph 9, the ground for not including a film in the register may be that it is aimed at inciting national, racial or religious hostility, as well as promoting pornography and violence. In this case, the applicant is provided with a reasoned written notice within 10 days. If the applicant does not agree with the decision made, he may appeal to the court. In spite of any indications in the legislation, according to the information on State Services Portal, until the applicant applies to the court, the mitigation or complete removal of unpleasant scenes in films is resolved by mutual agreement. Otherwise, disputes are resolved in accordance with the relevant legislation. In addition, paragraph 5 of the Rules states that films brought to the country for screening at international film festivals, film days of foreign countries and returned after the festival are not registered. Hence, there is no need to register films for their distribution and screening.

When looking at the substantive and procedural grounds of the decision on the film “Mahsati”, it is possible to detect inconsistencies. Since “presentation with erotic scenes, serious violations of normative-ethical nature and conceptual inconsistencies” cannot serve as grounds for not including the film to the state register. These justifications are incompatible with the grounds of incitement of national, racial or religious hostility, pornography and propaganda of violence.

As for the problematic procedural violation, the widespread news reports that the decision to consider the film unsuitable for distribution and screening was made by the Artistic Council of the Cinema Agency. The Cinema Agency is a public legal entity under the Ministry of Culture. Via its Charter, it operates in the areas of development of cinematography, including support for local and joint film production, organization of promotion of cinematographic culture, stimulation of the activities of cinematographic enterprises and film industry participants, as well as stimulation of the application of new information and communication technologies and innovations in the field of cinematography, integration of Azerbaijani cinematography into world cinematography, manages cinematographic enterprises subordinate to the Ministry of Culture and exercises control over their activities. Nothing in the Charter mentions the authorities of the Artistic Council.

This point contradicts the principle of relevance of administrative legislation. In accordance with Article 4 of the Law “On Administrative Proceedings”, administrative bodies carry out administrative proceedings on cases assigned to their competence by law. According to Article 14 of the Law, an administrative body is obliged to exercise its discretionary powers within the limits established by law (within the powers granted to it by law). Decisions made on the basis of discretionary powers must be consistent with the purpose of those powers. When exercising discretionary powers, decisions aimed at unjustified restriction of the rights and freedoms of individuals or legal entities cannot be made.

Other than that, such a step by the administrative body also contradicts the principles of protection of the right to trust and proportionality. According to Article 13 of the Law, the administrative body is obliged to act in accordance with the existing administrative practice. Only in cases where public interests require, the existing administrative practice may be replaced by a new practice. The new administrative practice must be permanent and of a general nature. According to Article 17, measures that involve any interference with the legal status (principal freedom of action) of natural or legal entities must be proportionate to the legitimate aim pursued by the administrative body and must be necessary and appropriate in terms of their content, place, time and the circle of individuals covered in order to achieve that aim. The state agency violated the principles of consistent conduct and protection of trust in granting a license to the film. The restriction imposed on the film - the de facto prohibition of its screening and distribution - leads to consequences that are more severe and disproportionate than the alleged irregularities that the film may contain.

What rights are violated by prohibition of screening and distribution of the film?

Article 47 of the Constitution and Article 10 of the European Convention on Human Rights enshrines freedom of expression. Based on the principle of freedom of expression, Article 17 of the Law “On Culture” guarantees freedom of information in culture. Freedom of expression is recognized as a relative right, since, according to Article 10(2) of the Convention, the exercise of freedom of expression may be subject to such formal requirements, conditions, restrictions or sanctions as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public order, 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 integrity and impartiality of the judiciary.

To verify the relevance of the situation described, it is necessary to look at the case law of the European Court of Human Rights on this article. When considering the grounds for restrictions, the grounds that are relevant in the present case are the protection of morality and the protection of the reputation and rights of others.

The Court’s position on the protection of the reputation and rights of others is that this justification should essentially apply to persons living at the relevant time and that the protection of deceased individuals can only be applied in limited situations. Such cases depend on the intensity of the attacks on the reputation of the deceased, which must reach such a level that the attacks infringe the person’s right to respect for his or her family life (Dzhugashvili v. Russia; §27).

The approach to the film “Mashati” from the point of view of protecting reputation and rights does not seem reasonable. The film, which is a figurative depiction of the life of the poetess Mahsati Ganjavi, who lived in the 11th-12th centuries, and does not claim to be based on documentary evidence, does not have a significant impact on the reputation and rights of the poetess. The plot of the film does not tell about the life and work of M. Ganjavi based on facts, but about the adventures of a young actress preparing to play the role of the poetess. By director’s words, the film is an attempt to take a modern approach to the poetess's story.

Another point concerns the protection of morality. The Court notes that, although Governments have a wide margin of appreciation to restrict freedom of expression on grounds of morality (Mouvement Raëlien Suisse v. Switzerland, §76), this margin of appreciation is not absolute and open to review (Open Door and Dublin Well Women v. Ireland; §68). In such a case, the Court must consider whether there is a public need that necessitates the interference, whether the restriction imposed is proportionate and whether the justification given by the domestic authorities is adequate and sufficient.

To understand the contextual difference in the case of the film “Mahsati”, one can look at the case of Otto-Preminger-Institut v. Austria, where the Court found the Government’s position on the “ban” of the film acceptable. In this case, the Austrian authorities had interfered with the applicant organization for the screening of the satirical film “Council in Heaven”. The reason for this interference was that Catholics in the city where the screening was planned had objected to the screening on religious grounds. The applicant claimed that the ban had violated his rights under Article 10 of the Convention.

The Court found the Government’s actions justified and dismissed the applicant’s complaint. In its judgment, the Court found that such a form of interference was provided for by law, that the town where the screening was planned was predominantly inhabited by ardent Catholics, and that the scenes to be shown in the film would restrict the exercise of freedom of religion by Catholics living there (§§52-56).

Nonetheless, none of the mentioned can be applied to the “Mahsati” case.

Initially, the legislation aimed at restricting the screening and distribution of the film does not contain the grounds stated in relation to the film “Mahsati”. Considering that the plot of the film is not dedicated to the description of the life and work of Mahsati Ganjavi, but simply an allusion to the poet (an obvious reference to or likening to a literary, historical, legendary or political fact that is deeply rooted in culture or public opinion), the protection of her reputation is incompatible with the restriction. The fact that the film shows moments of the main character’s personal life does not give grounds for authorities, based on the experience of the ECtHR, to impose restrictions under the name of “protection of morality”.

But does this restriction comply with “necessity in democratic society” standard?

According to the Court’s case-law, necessity does not imply “usefulness”, “reasonableness” or “desirability”. While Governments enjoy a wide margin of appreciation in determining necessity, this concept implies the existence of a “substantial social need” (Vavřička and Others v. the Czech Republic; §§273-275). Such necessity has two pillars – tolerance and broad-mindedness (Dudgeon v. the United Kingdom; §§51-53).

The restrictions imposed on “Mahsati” do not meet these standards. The state body has failed to justify the existence of a “significant social need.” While the Artistic Council should have taken a tolerant and open-minded approach to the purpose and plot of the film when making such a decision, it acted in the exact opposite way, making an unnecessary and disproportionate decision.

“Tribunat” concludes that the Cinema Agency's failure to issue a license for the film “Mahsati” violates the director's freedom of expression. The imposed restriction was not implemented in accordance with the substantive and procedural grounds set out in the legislation. Resultantly, the grounds of the domestic authorities for imposing the restriction do not correspond to acceptable practice.