CEDH · CASELAW;CLIN;ENG — 9 mai 2018

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Russia - 52273/07 Judgment 9.5.2018 [Section III] Article 10 Article 10-1 Freedom of expression Prison sentence and three-year ban on practising journalism, for promoting extremism in the context of Chechen conflict: violation Facts – The applicant, a journalist and civil activist, published his own newsletter and, therein, made a number of statements concerning the Chechen conflict. In 2006 he was sentenced to five years imprisonment and banned from practising journalism for three years on account of statements appealing to violence and extremist activities and inciting hatred and enmity on the ethnic, religious and social grounds, contrary to the Suppression of Extremism Act. Law – Article 10 (a)     Aims pursued – The applicant’s conviction pursued several legitimate aims: protecting the rights of others (such groups as the Russian people, Orthodox believers and Russia’s servicemen and law-enforcement officers), as well as protecting national security, territorial integrity, public safety, and preventing disorder and crime. While national security or public safety had to be interpreted restrictively, the matters relative to the conflict in the Chechen Republic had been of a very sensitive nature at the material time, which required particular vigilance on the part of the authorities. (b)     Necessity in a democratic society – Relevant factors to be considered in the case of expressions alleged to stir up or justify violence, hatred or intolerance included: the context in which the impugned statements were published, their nature and wording, their potential to lead to harmful consequences, and the reasons adduced by the domestic courts ( Perinçek v.   Switzerland [GC], 27510/08, 15   October 2015, Information Note   189 ). In respect of some of the impugned statements, the authorities had failed to demonstrate convincingly “the pressing social need” for the interference with the applicant’s freedom of expression. While the interference at issue had met such a need in respect of other statements, the penalty appeared disproportionate. (i)     Pressing social need – The impugned statements were part of a debate on a matter of general and public concern (the conflict in the Chechen Republic), a sphere in which restrictions on freedom of expression are to be strictly construed. They had been made against the background of the separatist tendencies in the region that had led to serious disturbances between Russia’s federal armed and security forces and the Chechen rebel fighters, resulting in a heavy loss of life and deadly terrorist attacks in other regions of Russia. The Court considered that the impugned statements could be divided into three groups. The first group of statements promoted, justified and glorified terrorism and violence, with an intention to romanticise and idealise the Chechen separatists’ cause and to portray the federal armed and security forces as absolute, brutalised and dehumanised evil. Those accusations might not have been without foundation, particularly in the light of the Court’s case-law regarding the Chechen conflict where violations of various Convention provisions had been found. However, by generalising and labelling all the members of Russia’s armed and security forces as “maniacs” and “murderers”, the texts in question stirred up a deep-seated and irrational hatred towards them and, with due regard to the sensitive context of the counter-terrorist operation, exposed them to a possible risk of physical violence. An enhanced degree of regulation of such statements by the authorities had been all the more justified because they had been published only a few months after terrorist attacks. In that respect, the domestic courts’ considerations had been relevant and sufficient. That was also true in respect of the statements referring to “President Maskhadov” as the “legitimate president of Chechnya”, which contained in themselves no call for violence and would not have justified an interference with the freedom of expression in another context. A second group of statements, although virulent, did not go beyond the – wide – limits of acceptable criticism of the Russian Government and the actions of the federal armed and security forces as a part of the machinery of the State. As regards the statement calling for “an immediate compulsory psychiatric examination” of Russia’s servicemen and law-enforcement officers, the courts had taken it out of its context. The phrase at issue could only be seen as a scathing criticism of the judicial response to the murder of a young woman by a high-ranking military officer who had been a representative of the State seconded to the Chechen Republic to maintain constitutional order in the region and called upon to protect the interests of civilians; it was also an expression of concern that a mentally unstable person had been placed in command of a regiment, and an emotional appeal to take necessary measures to prevent similar incidents in the future. It was important that domestic authorities adopt a cautious approach in determining the scope of “hate speech” crimes and strictly construe the relevant legal provisions where such charges were brought for mere criticism of the government, State institutions and their policies and practices. As the courts had failed to take account all the relevant factors, the interference had not met “a pressing social need”. In a third group of statements, the applicant accused ethnic Russians of keeping slaves and suggested isolated cases of alleged abuses as typical and characteristic of all Russians and Orthodox believers. In the light of its approach to such broad attacks on ethnic and religious groups, the Court found the considerations of the domestic courts to be relevant and sufficient. (ii)     Severity of the penalty – The Court left open the question whether a ban on the exercise of journalistic activities, as such, was compatible with Article   10 of the Convention. A deprivation of liberty coupled with a ban on practising journalism for speech – even if criminal – was an extremely harsh measure, particularly when imposed for such a long period. In that respect, the domestic courts had referred to the applicant’s “personality” and the “social danger” posed by his offence. While those were “relevant” considerations, the Court was unable to conclude that the applicant’s sentence was rendered necessary by any particular circumstances of his case. The applicant had never been convicted of any similar offence (otherwise, the choice of a harsh sentence would have been more acceptable). Moreover, the potential impact of the impugned statements was reduced. They had been printed in a self-published newsletter with a very low number of copies and an insignificant circulation. The copies had been distributed by the applicant in person or through his acquaintances at public events in Moscow only to those individuals who had expressed their interest. The applicant’s punishment had therefore not been proportionate to the legitimate aims pursued. Conclusion : violation (unanimously). Article 41: EUR 12,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See also the Factsheet on Hate speech )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes