Communicated on 18 September 2017
THIRD SECTION
Application no. 29396/15
Abdulla Yunusovich EKAYEV
against Russia
lodged on 22 January 2014
STATEMENT OF FACTS
The applicant, Mr Abdulla Yunusovich Ekayev, is a Russian national, who was born in 1950 and lives in Tver, Tver Region.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant is a journalist, a lawyer and a human rights defender. He founded the newspaper “Tverskaya gazeta” where he published articles about judges of the Tver Regional Court, including judge K., the President of the Tver Regional Court, revealing their unlawful activities such as corruption (“K., the President of the Regional Court, is considered to be a bribe taker”, “Back to the question of judge K.’s corruption”).
From March to May 2013 judge K. initiated criminal proceedings against the applicant for libel.
2. Insult of judge A.
On unspecified date criminal proceedings against Mr Kh. were initiated.
On 14 June 2011 A., a judge of the Tver Regional Court, conducted a preliminary hearing on Mr Kh.’s case. Mr Kh. asked the judge to join the applicant to the proceedings as his counsel but judge A. dismissed his request. On 27 June 2011 judge A. dismissed his second request in this respect.
On 30 August 2011 judge A. convicted Mr. Kh. of a murder.
On 24 October 2011 the applicant wrote an article under the working heading “Godly petty tyrant (самодур) judge A.” where he described the proceedings against Mr Kh. and stated that his conviction was unlawful. After that he sent a letter to judge A. and suggested commenting on the draft article. The applicant assured judge A. that he would amend the article taking into account his comments, if any. No reply followed.
On 7 November 2011 the applicant published the article under the heading “Petty tyrant judge A.”.
On 23 December 2011 judge A. asked the investigator to initiate criminal proceedings against the applicant under Article 297 § 2 of the Criminal Code of Russia providing for liability for contempt of court.
In March 2013 criminal case against the applicant was transferred to the Zavolzhskiy District Court of Tver.
On 16 August 2013 the Zavolzhskiy District Court convicted the applicant of insult of a State official under Article 319 of the Criminal Code and sentenced him to a fine of 30,000 roubles (RUB) (685 euros (EUR)), prohibited him to work as a journalist for three years and ordered to pay RUB 1,000,000 (EUR 22,829) in non-pecuniary damage to judge A. The judgment read as follows:
“... [the applicant’s] guilt has been proven during the investigation and trial...
According to expert opinion of 5 March 2012, the materials submitted to the linguistic study (the article ... published on 9 November 2011 and the [applicant]’s letter of 24 October 2011...) contain invective (offensive) wording that is words and expressions humiliating judge A.’s honour and dignity...
The court has established that [the applicant], ... being displeased with the conviction of Mr Kh. and judge A.’s behaviour who dismissed his request to join the proceedings as Mr. Kh.’ counsel, intending to insult the judge, a State official, wrote and sent judge A. a letter ... containing words and expression humiliating honour and dignity of the judge...
With the same intention to insult judge A., [the applicant] published an article on judge A. in which he provided negative assessment of judge A.’s professional skills, his moral portrait, humiliated his honour and dignity, by using indecent words and expressions when describing proceedings against Mr Kh.”.
The court dismissed expert opinions submitted by the applicant stating that they did not contain any conclusions as to whether the wording used in the article and letter was humiliating.
The applicant lodged an appeal and a challenge against all judges of the Tver Regional Court and asked to transfer his case to another jurisdiction for consideration.
On 31 October 2013 the Tver Regional Court, presided over by judge S., upheld the applicant’s conviction on appeal reiterating the District Court’s reasoning and dismissed his request to transfer the case to another jurisdiction. The court held that judge S., who had been assigned to the case, was not judge A.’s subordinate and therefore there was no reason to doubt her independency and impartiality.
B. Relevant domestic law
1. Impartiality
According to Code of Criminal Procedure of Russia, a judge may not engage in criminal proceedings: (1) if he or she is a victim, civil claimant, civil defendant or witness in these criminal proceedings; (2) if he or she was involved in these criminal proceedings as a jury, expert, specialist, interpreter, attesting witness, courtroom secretary, defender, legal representative of the suspect, civil claimant or civil defendant, investigator or prosecutor; (3) if he or she is a close relative or a relative of any person involved in the criminal proceedings; (4) if there are any other reasons to believe that he or she may be directly or indirectly interested in the outcome of the criminal proceedings. A challenge against a judge dealing with a criminal case may not be lodged only on the ground that the judge has allegedly received an unofficial massage relating to this criminal case (Article 61).
In case a challenge against a judge, some of the judges or all judges is allowed, the criminal case shall be remitted to other judge or judges according to the procedure prescribed by the Code of Criminal Procedure (Article 65 § 5).
The venue may be changed (1) at the request of a party to criminal proceedings in case his or her challenge against all judges has been granted; (2) at the request of a party or at the initiative of the president of the court which received the case, where:
- all judges of this court have previously engaged in criminal proceedings on the case;
- all parties to the criminal proceedings do not live on the territory under the court’s jurisdiction and all accused persons agree to the change of venue.
Change of venue may be granted only before the day of trial (Article 35).
2. Insult of a State official
Article 319 of Criminal Code of Russia provides that public insult of a State official on duty is punishable by a fine of up to RUB 40,000 or in the amount of salary or other income of a convict for the period of up to three months, or by public labour for up to 360 hours, or correctional labour at the convicted person’s place of work for up to one year.
COMPLAINTS
The applicant complains under Article 6 of the Convention that a judge of the Tver Regional Court was biased to him because of his activities revealing judges’ illegal conduct.
He complains under Article 10 of the Convention that he was penalised for expressing his opinion on the functioning of judiciary in his region, a question of general interest.
QUESTIONS TO THE PARTIES
1. Was the Tver Regional Court which dealt with the applicant’s case impartial as required by Article 6 § 1 of the Convention?
The parties are invited to submit the minutes of the appeal hearing of 31 October 2013; the documents relating to criminal proceedings against the applicant initiated by Mr K., president of the Tver Regional Court; the applicant’s challenge with regard to all judges of the Tver Regional Court and the decision of 31 October 2013 by which the Tver Regional Court dismissed the applicant’s challenge.
2. Was there an interference with the applicant’s right to freedom of expression, in particular his right to impart information and ideas, as secured by Article 10 § 1 of the Convention?
If so, was that interference justified under Article 10 § 2 of the Convention? In particular:
(a) was it “prescribed by law”?
(b) did it pursue a legitimate aim?
(c) was it “necessary in a democratic society”? Did the national authorities thoroughly examine the case and adduce relevant and sufficient reasons to justify the alleged interference? Was the punishment inflicted on the applicant proportionate?
The parties are invited to submit a copy of the article “Petty tyrant judge A.” and the applicant’s letter addressed to judge A., a copy of the linguistic expert’s opinion of 5 March 2012.
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