CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 novembre 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } Communicated on 4 November 2020 Published on 23 November 2020   THIRD SECTION Application no. 36911/20 Mariya Anatolyevna AVAGYAN against Russia lodged on 6 August 2020 STATEMENT OF FACTS 1.     The applicant, Ms Mariya Anatolyevna Avagyan, is a Russian national, who was born in 1985 and lives in Krasnodar. She is represented before the Court by Ms O. Timireva and Ms Zh. Sozina, lawyers practising in Moscow. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 13 May 2020 the applicant commented on an Instagram post:   “There has NOT been a single case of corona[virus] infection in the Krasnodar Region. No patient who tested positive has received a document showing a confirmed virus infection. Think why the authorities would need it ... No one will talk about it, for fear of being fired or killed. Money is being offered for agreeing to list the corona[virus] as a cause of death in the death certificate, everyone knows it ...” 4.     On 18 May 2020 the Krasnodar police charged her with an offence of disseminating untrue information on the Internet and referred the matter to a justice of the peace in the Tsentralnyy District of Krasnodar. 5.     The applicant pleaded not guilty. She told the judge that she had formed her opinion on the basis of open sources and Internet publications. It could not be said that her allegations had been “known to be untrue” because the presence of coronavirus infection in the Krasnodar Region had not been officially confirmed or denied. 6.     On 8 June 2020 the justice of the peace found the applicant liable for disseminating untrue information, alleging the non-existence of coronavirus infection in the Krasnodar Region. It listed the police report of an administrative offence, a print-out of the applicant’s Instagram comments and her statement to the police as evidence of the offence and held as follows: “Before the court, [the applicant] did not produce evidence disproving the existence of coronavirus infection (COVID-2019) in Krasnodar and the Krasnodar Region which could have been capable of showing the truth of the information she had shared online. It follows that [the applicant’s] guilt in the commission of an administrative offence under Article 13.15(9) of the Code of Administrative Offence has been established.” 7.     The court sentenced the applicant to a fine of 30,000 Russian roubles (approximately 390 euros on the day of the judgment). 8.     The applicant appealed, complaining that the court had not heeded the context of the publication and that it had shifted the burden of proof onto her. The court had not required the police to produce any materials showing that her allegations had been untrue and assumed the role of the prosecution in the absence of a prosecutor public during the trial. Her arguments that she had not attempted to present untrue information as a reliable report and that the comments had not created a risk to anyone’s life or health had not been addressed in the judgment. Lastly, she complained that the fine had been excessive and that the court could have instead given her a warning. 9.     On 8 July 2020 the Oktyabrskiy District Court in Krasnodar summarily dismissed the appeal, referring to regional regulations for preventing the spread of the COVID-19 infection. Relevant domestic law 10.     An individual may be found liable only for administrative offences of which his or her culpability has been established. The defendant is not required to prove his or her innocence (Article   1.5 of the Code of Administrative Offences). 11.     On 18 March 2019 the Code of Administrative Offences was amended by Federal Law no. 28-FZ which created a new offence of deliberately spreading untrue information, commonly referred to as “fake news”. Paragraph 9 of Article 13.15 of the Code of Administrative Offences was added to read as follows: “Dissemination through the media and ICT networks, of socially important information known to be untrue [ заведомо недостоверная общественно значимая информация ] under the guise of reliable reports which has created a risk of causing damage to life or health of individuals or property, instigating mass disorders, undermining public security, interfering with, or preventing, the operation of critical infrastructure, transport links, social services, credit institutions, power plants, industrial or communication facilities ... shall be punishable by an administrative fine of between 30,000 and 100,000 Russian roubles ...” COMPLAINTS 12.     The applicant complains under Article 10 of the Convention that the law failed to distinguish between dissemination of untrue information and sharing value judgments, that her opinion was based on other Internet publications and posed no risk to public health or security, and that the amount of fine was excessive. 13.     The applicant also complains under Article 6 § 1 of the Convention that, in the absence of a prosecutor, the trial court assumed the role of the prosecution.     QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 10 of the Convention? In particular, has it been shown – (a) that individuals, such as the applicant, should be held to the same standard of accuracy in their private exchanges on the Internet, as the media which have a duty and responsibility to provide accurate, reliable and precise information in line with the ethics of journalism? (b) that the applicant knowingly published untrue information? (c) that the information was socially important? (d) that her comments created any risks envisaged in Article 13.15(9) of the Code of Administrative Offences? (e) that the applicant benefited from the presumption of innocence in the administrative proceedings in accordance with Article 1.5 of the Code of Administrative Offences? (f) that the sanction was proportionate to the nature of the alleged offence?   2.     Has there been a violation of Article 6 § 1 of the Convention on account of the absence of the prosecuting party from the proceedings (see Karelin v.   Russia , no.   926/08, 20 September 2016)?