CASE OF KURNOSOVA v. RUSSIA

THIRD SECTION

CASE OF KURNOSOVA v. RUSSIA

(Application no. 36072/07)

JUDGMENT
 

STRASBOURG

15 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Kurnosova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 36072/07) 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, Ms Olga Vladimirovna Kurnosova (“the applicant”), on 6 August 2007;

the decision to give notice of the application to the Russian Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 25 May 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerned a fine imposed on the applicant for publishing an article containing calls for participation in a public event. The impugned article had been authored by a regional leader of an association the activities of which had been suspended pending judicial banning proceedings for its allegedly extremist activities.

THE FACTS

2.  The applicant was born in 1961 and lives in St Petersburg. She was represented by Ms O. Tseytlina, a lawyer practising in St Petersburg.

3.  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.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 2 March 2007 the Moscow City prosecutor applied to a court, asking that the National Bolsheviks Party be declared an extremist organisation and banned. On 21 March 2007 the acting Moscow City prosecutor suspended its activities pending the banning proceedings on the basis of section 10(1) of the Suppression of Extremism Act (see paragraph 12 below).

6.  On 5 April 2007 a special issue of Petersburg Ahead, the Yabloko party newspaper distributed in St Petersburg, was released. The applicant was the executive editor of that special issue dedicated to the March of Dissenters scheduled for 15 April 2007. It called for participation in the March organised by a coalition of opposition groups and explained its aims and political demands. It also published an article by Mr D., the leader of the National Bolsheviks of St Petersburg. The article called their supporters to the March of Dissenters of 15 April 2007.

7.  On 14 April 2007 the St Petersburg office of Yabloko was searched by the police and copies of the special issue of Petersburg Ahead newspaper were seized.

8.  On 15 April 2007 the Justice of the Peace of the 201th Court Circuit of St Petersburg found the applicant guilty of a breach of the established procedure for the conduct of public events, an offence under Article 20.2 § 1 of the Administrative Offences Code (“the CAO”). The Justice of the Peace described the corpus delicti of offence as follows:

“Kurnosova O.V., the organiser of ... the meeting and march ..., committed a premeditated breach of the established procedure for the conduct of public events. She involved the members of [the National Bolsheviks Party] – the activities of which had been suspended on 21 March 2007 by the acting Moscow prosecutor on the basis of section 10(1) of [the Suppression of Extremism Act] – in participating in that public event. She did it by publishing in the special issue of 5 April 2007 of Petersburg Ahead newspaper ..., for which she was the executive editor, an article by [D.], the leader of the St Petersburg branch of [the National Bolsheviks Party], containing calls for participation in the public event of 15 April 2007 and advocating the ideology of the [the National Bolsheviks Party], the activities of which had been suspended.”.

The Justice of the Peace found that the applicant had thereby breached section 16 of the Suppression of Extremism Act (see paragraph 13 below). He also held that, being a journalist, the applicant had a duty to verify the veracity of the information published by her. She should have therefore known about the decision suspending the activities of the National Bolsheviks Party. She had however published its regional leader’s calls for participation and had thereby allowed a suspended association to be involved in organising the public event held by her. The Justice of the Peace fined the applicant 1,000 Russian roubles (about 28.5 euros (EUR)).

9.  The applicant appealed. She argued, in particular, that she had complied with the procedure for the conduct of public events established by the Public Events Act and her liability under Article 20.2 § 1 of the CAO had therefore had no basis in law. The publication of the impugned article by Mr D. had not breached the Suppression of Extremism Act. Firstly, Mr D. had written the article in question in his private capacity of a supporter of the National Bolsheviks ideology rather than in his capacity of a member of the suspended National Bolsheviks Party. Secondly, the applicant could not have known about the suspension of the Party’s activities because the article had been given to her on 18 March 2007, while the Party’s activities had been suspended on 21 March 2007. In any event, when the newspaper had been released, the National Bolsheviks Party had not yet been banned as an extremist organisation.

10.  On 31 May 2007 the Dzerzhinskiy District Court of St Petersburg upheld the judgment of 15 April 2007 on appeal. It held that the applicant had breached the established procedure for the conduct of public events by publishing an article by a member of the National Bolsheviks Party – the activities of which had been suspended – advocating the ideology of that party. The District Court’s judgment did not rely on any provisions of the domestic law, except Article 20.2 § 1 of the CAO.

RELEVANT LEGAL FRAMEWORK

11.  The Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002) defines an extremist organisation as a non-profit, religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities as defined by the Act (section 1(2)).

12.  The Suppression of Extremism Act further provides that the competent official who has applied to a court for dissolution or banning of a public or religious association on the ground of its extremist activities may take a decision to suspend the activities of that association pending the dissolution or banning proceedings (section 10(1)). This decision may be appealed against to a court (section 10(2)). If the activities of a public or religious association have been suspended, that association and its local branches may not, inter alia, publish mass media, use State-owned or municipal mass‑media, organise or hold public events, (section 10(3)). On 24 July 2007 a new paragraph was added that provided that a list of public or religious associations the activities of which had been suspended was to be published on the website of the registration authority and in the official periodical press, as determined by the Government (section 10(6)).

13.  It is prohibited to resort to extremist activities during public events. Organisers of mass gatherings are responsible for ensuring that that prohibition is complied with (section 16(1)). It is prohibited to involve extremist organisations into participating in mass gatherings, to use their attributes or symbols or to distribute extremist materials (section 16(3)). If the organisers fail to take such measures, they may be held liable in accordance with law (section 16(4)).

14.  At the material time a breach of the established procedure for the conduct of public events was punishable by a fine of ten to twenty minimum wages for the organisers of the event, and five to ten minimum wages for the participants (Article 20.2 §§ 1 and 2 of the CAO).

15.  The procedure for the conduct of public events is established by the Federal Law on Gatherings, Meetings, Demonstrations, Processions and Pickets, no. FZ-54 of 19 June 2004 (“the Public Events Act”). For a summary of its provisions, see Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 218‑52, 7 February 2017).

THE LAWALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

16.  The applicant complained that the fine imposed on her had breached her right to freedom of expression as provided in Article 10 of the Convention, interpreted in the light of Article 11 of the Convention. The relevant provisions read as follows:

Article 10

“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.”

Article 11

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”Admissibility

17.  The Government submitted that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. The fine imposed on her had been of a modest amount and she had not submitted any documents confirming that she had paid it. The fine was no longer enforceable. Her case had been duly considered by the domestic courts. Nor did respect for human rights require an examination of the application on the merits, given that the Court had already examined a number of cases where the applicants had been fined for a breach of the established procedure for the conduct of public events.

18.  The applicant submitted that the application raised an important question of principle, namely whether the domestic law was foreseeable in its application. It moreover concerned restrictions imposed on her journalistic freedom to disseminate information about a lawful public event organised by the opposition. She had therefore suffered a significant disadvantage.

19.  Article 35 § 3 (b) of the Convention reads as follows:

“3.  The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b)  the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

20.  The Court reiterates that the rule contained in this provision consists of three criteria. Firstly, it has to be seen if the applicant suffered a “significant disadvantage”. Secondly, it should be checked if respect for human rights compels the Court to examine the case. Thirdly, the case must have been duly considered by a domestic tribunal (see Smith v. the United Kingdom (dec.), no. 54357/15, § 44, 28 March 2017).

21.  The first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see, with further references, C.P. v. the United Kingdom (dec.) no. 300/11, § 42, 6 September 2016). A violation of the Convention may concern important questions of principle and thus cause a significant disadvantage regardless of pecuniary interest (see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010).

22.  In considering whether the applicant has suffered a “significant disadvantage” in the circumstances of the present case, the Court notes that she complained before it about being convicted of an administrative offence for publishing, in her capacity of a newspaper editor, an article about a forthcoming opposition rally which had resulted in her being fined EUR 28.5. The size of the fine was indeed modest and the applicant did not advance any arguments to demonstrate that it had been significant to her in the light of her personal situation.

23.  The Court however reiterates that the right to freedom of expression is a fundamental right in a democratic society and, like the right to freedom of assembly, is one of the foundations of such a society. In cases concerning freedom of expression and assembly the Court, when applying the admissibility criterion contained in Article 35 § 3 (b) of the Convention, should take due account of the importance of these freedoms and exercise a careful scrutiny (see, among other authorities, Sylka v. Poland (dec.), no. 19219/07, § 28, 3 June 2014, and Obote v. Russia, no. 58954/09, § 31, 19 November 2019). This scrutiny should encompass, among other things, such elements as contribution to a debate of general interest and whether a case involves the press or other news media (see, with further references, Sylka, cited above, § 28). Considering that the applicant was subjected to administrative-offence proceedings for a newspaper article about a forthcoming opposition public assembly, the alleged violation of Article 10 the Convention, interpreted in the light of Article 11, in the present case concern, in the Court’s view, “important questions of principle” (see Obote, cited above, § 31).

24.  The Court is thus satisfied that the applicant has suffered a significant disadvantage as a result of the administrative-offence proceedings against her and does not deem it necessary to consider in the context of its analysis of the Government’s objection whether respect for human rights compels it to examine the case or whether it has been duly considered by a domestic tribunal.

25.  Accordingly, the Court dismisses the Government’s objection pertaining to Article 35 § 3 (b) of the Convention.

26.  The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsSubmissions by the parties

27.  The applicant submitted that the interference with her right to freedom of expression had not been “prescribed by law”. In particular, she argued that the domestic law did not meet the requirement of “foreseeability” for the following reasons. Firstly, Article 20.2 of the CAO punished breaches of the established procedure for the conduct of public events; it did not establish any liability for press publications. Secondly, at the moment of the release of the impugned publication, the National Bolsheviks Party had not yet been declared an extremist organisation. The applicant had not therefore breached the prohibition contained in section 16 of the Suppression of Extremism Act. As regards the prohibition contained in section 10 of that Act, it was addressed to the suspended organisations and their members rather than to any third persons like the applicant. Thirdly, Mr D. wrote the impugned article in his private capacity of the supporter of the National Bolsheviks ideology rather than as the official representative of the National Bolsheviks Party.

28.  The applicant further submitted that the Government had not referred to any legitimate aim to justify the interference. Furthermore, the interference had not been “necessary in a democratic society”. The article had called on citizens to participate in a peaceful and lawful assembly. It had not contained any calls to violence or other disorder. The law had been interpreted by the courts as prohibiting any mention of the ideology or members of an association which had been suspected by a prosecutor to be extremist, irrespective of the contents of the publication and of whether it presented any danger.

29.  The Government submitted that the interference with the applicant’s right to freedom of expression had been justified. It had been prescribed by law, namely by Article 20.2 of the Code of Administrative Offences and sections 10 and 16 of the Suppression of Extremism Act. It was not the Court’s task to question the findings of the domestic courts which had established the applicant’s guilt of the administrative offence of the breach of the established procedure for the conduct of public events. Given the modest amount of the fine imposed on the applicant, the interference had been “necessary in a democratic society”.The Court’s assessment

30.  The Court finds, and it has not been disputed between the parties, that the applicant’s conviction amounted to an interference with her right to freedom of expression interpreted in the light of her right to freedom of assembly. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in Article 10 § 2 and is “necessary in a democratic society” to achieve those aims.

31.  The Court takes note of the applicant’s argument that the interference with her right to freedom of expression had not been “prescribed by law”. It reiterates that the expression “prescribed by law” in the second paragraph of Article 10 requires that the impugned measure should have a legal basis in domestic law. It also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015).

32.  The Court notes that the applicant was convicted of an administrative offence under Article 20.2 § 1 of the CAO as in force at the material time, which punished breaches of the established procedure for the conduct of public events committed by an organiser. That provision used the “blanket reference” technique in so far as the constituent elements of the offence were determined by reference to the Public Events Act and other legal provisions establishing the procedure for the conduct of public events.

33.  In so far as the Government argued that the applicant’s conviction had been lawful because she had breached the requirements of section 10(3) of the Suppression of Extremism Act prohibiting suspended associations from organising or holding public events (see paragraph 12 above), the Court notes that the domestic courts did not rely on section 10(3) in their judgments. In such circumstances, the Court does not take the additional, ex post facto justifications offered by the Government into consideration (compare Fáber v. Hungary, no. 40721/08, § 49, 24 July 2012).

34.  The Justice of the Peace referred to section 16 of the Suppression of Extremism Act (see paragraph 8 above). Section 16(3) prohibits organisers of mass gatherings from involving “extremist organisations” into participating in such gatherings (see paragraph 13 above). The Court notes that the Suppression of Extremism Act defines an “extremist organisation” as an organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities (see paragraph 11 above). It has not been disputed between the parties that at the material time the National Bolsheviks Party had not yet been declared “an extremist organisation” by a final judicial decision and that the banning proceedings were still pending. The Justice of the Peace did not refer to any authoritative interpretation or established judicial practice extending the prohibition contained in section 16(3) to suspended associations. It follows that section 16(3) was extensively and unforeseeably construed in the applicant’s case. The applicant could not therefore reasonably foresee that by publishing an article penned by the regional leader of a suspended association calling to participate in a lawful public event she would breach that provision. Consequently, it was equally unforeseeable that such publication would make her liable under Article 20.2 § 1 of the CAO.

35.  It is also relevant that at the material time the official list of suspended associations was not accessible to the public. The requirement to publish such a list was introduced on 24 July 2007, that is after the facts of the present case (see paragraph 12 above). The absence of an officially published list of suspended associations constitutes another reason for the Court to conclude that the applicant could not reasonably have foreseen that her conduct would amount to a breach of Articles 10(3) or 16(3) of the Suppression of Extremism Act (see, for similar reasoning in the context of Article 7 of the Convention, Kasymakhunov and Saybatalov v. Russia, nos. 26261/05 and 26377/06, §§ 91-93, 14 March 2013).

36.  It follows that the Justice of the Peace’ judgment was based on an unforeseeable application of the domestic law. Furthermore, these deficiencies were not corrected by the appellate court.

37.  The Court concludes from the above that the applicant’s conviction was not “prescribed by law”. It does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 10 of the Convention were complied with in the instant case – namely, whether the interference pursued a legitimate aim and whether it was necessary in a democratic society.

38.  There has accordingly been a violation of Article 10 of the Convention interpreted in the light of Article 11 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  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.”Damage

40.  The applicant claimed 25 euros (EUR) in respect of pecuniary damage, representing the fine she had paid. She also asked for compensation in respect of non-pecuniary damage, and left it to the Court to determine the amount.

41.  The Government submitted that the claim for non-pecuniary damage had not been substantiated. They also asked that the claim for pecuniary damage be rejected because the fine had been imposed lawfully.

42.  The Court considers that there is a direct causal link between the violation of Article 10 found and the fine the applicant had paid following her conviction for the administrative offence (see Novikova and Others v. Russia, nos. 25501/07 and 4 others, § 232, 26 April 2016). The Court therefore awards the applicant EUR 25 in respect of pecuniary damage, plus any tax that may be chargeable.

43.  It also awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

44.  Relying on legal fee agreements and lawyer’s time-sheets, the applicant also claimed EUR 1,868 and 35,000 Russian roubles for legal fees, postal and administrative expenses incurred before the domestic courts and the Court, to be paid into the applicant’s representative’s bank account.

45.  The Government questioned the reasonableness and substantiation of these claims.

46.  In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,460 covering costs under all heads, plus any tax that may be chargeable to the applicant, to be paid to the applicant’s representative’s bank account.Default interest

47.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 10 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 25 (twenty-five euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 2,460 (two thousand four hundred and sixty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the applicant’s representative’s bank account;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              {signature_p_2}

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

 

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