Communicated on 15 September 2017
THIRD SECTION
Applications nos. 72797/11 and 61909/12
Zaur Nurbiyevich DZEUKOZHEV against Russia
and CHERKESSKIY KONGRESS against Russia
lodged on 10 November 2011 and 25 July 2012 respectively
SUBJECT MATTER OF THE CASES
Application no. 72797/11:
In November 2010 a prosecutor issued to the applicant a “warning” (предостережение) “about inadmissibility of extremist activities” indicating that his actions demonstrated indications of such activities on account of his certain replies given in a newspaper interview and an Internet post, both done by him as one of the leaders of Cherkesskiy Kongress, a local non-governmental organisation; the prosecutor also referred to an interview given by B., another leader of this NGO. The prosecutor stated that if further facts of extremist activities would be identified within one year, the NGO would be banned and, in the case of an unregistered NGO, its leaders would be prosecuted (also, if the orders given in the warning would not be complied with). On 17 May 2011 the Supreme Court of the Adygeya Republic took the final decision rejecting the applicant’s complaint and upholding the “warning” because it had been issued lawfully, namely with the prosecutor’s area of competence.
In two articles published in March 2011 the applicant was treated, inter alia, as a person engaging in extremist activities and aiding and abetting other people engaging in such activities and who were being prosecuted criminally. On 6 September 2011 the above court took the final decision rejecting his defamation claim against the editorial boards of the newspapers. The courts classified the contested statements as value judgments, which were not actionable under Article 152 of the Civil Code.
Application no. 61909/12:
On 31 May 2011 B., acting as the leader of Cherkessiy Kongress, published on the Internet a “thank-you letter” addressed to the Parliament of Georgia, in which he mentioned, inter alia, “the genocide of the Cherkess (Adyg) people by the Russian State during the Russian-Cherkess of 1763‑1864”. The regional office of the Ministry of Justice issued a “warning” in respect of the applicant organisation.
COMMON QUESTIONS tO THE PARTIES
Was there a violation of Article 10 of the Convention on account of the “warnings” issued to the applicants? In particular, was the interference in each case “necessary in a democratic society”? Did the relevant authority in each case (the prosecutor and the regional office of the Ministry of Justice, respectively) and then the domestic courts adduce “relevant and sufficient” reasons for the interference and base their conclusions on an acceptable assessment of the facts (see Perinçek v. Switzerland [GC], no. 27510/08, §§ 196-97, 204-08 and 212-20, ECHR 2015 (extracts) as regards pertinent general principles and factors, and Terentyev v. Russia, no. 25147/09, §§ 20‑24, 26 January 2017 as regards the approach)?
ADDITIONAL CASE-SPECIFIC QUESTIONS
Application no. 72797/11:
1. Did the applicant have an effective remedy for the complaint under Article 10 of the Convention, as required by its Article 13? In particular, in the light of Ruling no. 2 of 10 February 2009 of the Plenary Supreme Court of Russia, did the procedure under Chapter 25 of the Code of Civil Procedure, taken in conjunction with the other applicable legislation (such as the Anti-Extremism Act, in the present case) allow for the Convention‑compliant “necessity” and “proportionality” assessment (compare Ustinova v. Russia, no. 7994/14, §§ 51-52, 8 November 2016; Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 350-60, 7 February 2017, and Polyakova and Others v. Russia, nos. 35090/09 and 3 others, §§ 110-14, 7 March 2017)?
2.1. Was there a violation of Article 8 of the Convention on account of the dismissal of the applicant’s defamation case? In particular, did the national authorities carry out a balancing exercise between his right to respect of his “private life” and the conflicting right to freedom of expression? If yes, was this exercise done in conformity with the criteria laid down in the Court’s case-law (for a recent statement on the applicable approach, see Fürst-Pfeifer v. Austria, nos. 33677/10 and 52340/10, §§ 40‑42, 17 May 2016)? Were the impugned parts of the articles correctly classified as value judgments? Did the courts satisfy themselves that the respondents substantiated the “factual basis” for such statements (even where they were properly classified as value judgments)?
2.2. The parties are requested to submit a copy of impugned publication.
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