Communicated on 10 July 2017
THIRD SECTION
Applications nos. 8921/15, 10964/15, 14673/17 and 30328/17
Alsu Albertovna GARAPOVA against Russia
and Yevgeniy Yefimovich ARONSON against Russia
Aleksandr Sergeyevich ZAVOLGIN against Russia
Roman Yevgenyevich BONDAR against Russia
lodged on 13 and 20 February 2015 and 10 February and 11 April 2017 respectively
STATEMENT OF FACTS
A. The cases of Ms Garapova and Mr Aronson
The applicants, Ms Alsu Albertovna Garapova and Mr Yevgeniy Yefimovich Aronson, are Russian nationals who were born in 1993 and 1959 respectively and live in Kazan in the Tatarstan Republic. They are represented before the Court by Mr D. Gaynutdinov, a lawyer practising in Moscow.
In December 2011, the elections to the State Duma of the Russian Federation were to be held. A forum of opposition parties and civil activists joined forces to call voters “to vote for any party, except United Russia”. Mr Navalnyy, a well-known blogger and opposition politician, uploaded a two-minute video in his YouTube account with the headline “Let’s remind the crooks and thieves about their 2002 Manifesto”. The video featured a sequence of static frames, each of them showing one of the campaign promises from United Russia’s draft manifesto printed in the 23 December 2002 issue of the Nezavisimaya Gazeta newspaper. The voiceover text read as follows:
“In 2002 they gave solemn promises.
[That] in 2004 everyone in Russia would see their heating and electricity charges cut in half.
[That] in 2005 everyone in Russia would share the profit from the use of natural resources.
[That] in 2006 everyone would have a job matching his qualification.
[That] in 2008 every family would own a well-equipped home ...
[That] in 2017 Russia would be the world’s political and economic leader.
Not only did they lie to you, they reduced the country to the state in which those and any other promises sound now like a caricature that no one is capable of believing.
Do you really want them to come to power again?
Are you ready to stand by and watch them rob and destroy your country?
You can do now the easy thing.
If you want to hurt crooks and thieves, go to the polling station and vote for any party, except United Russia, and help spreading this video among friends, acquaintances, family members or just tell them this obvious thing: United Russia is a party of thieves and crooks.
Russia has no future with the party of thieves and crooks.”
Around that time both applicants copied a link to the video to the My Videos folder in their (VKontakte) accounts. VKontakte is the largest Russian social networking service similar to Facebook.
In 2013, a district prosecutor in Novosibirsk applied to a court seeking a declaration of extremist nature of seven videos found on the account of another VKontakte user. He relied on the findings of a linguistic study carried out by the Investigations Committee of the Novosibirsk Region to the effect that –
“[The video] ‘Let’s remind the crooks and thieves about their 2002 Manifesto’ contains statements giving a negative assessment of a group of persons on account of their membership of the United Russia party. It also contains an incentivising statement calling for hostile actions by one group against another group united by their membership of the United Russia party.”
On 21 June 2013 the Kirovskiy District Court in Novosibirsk held an ex parte hearing and granted the prosecutor’s application, repeating verbatim the linguists’ findings. Following the court’s decision, the video was added to the Federal List of Extremist Materials under number 2066.
Later in 2013, the Tatarstan department of the Federal Security Service identified the Vkontakte users who had copied links to the video to their accounts and requested the social network administrator and a local internet service provider, on the basis of the Operational-Search Activities Act, to submit information on the number of logins into their accounts by the first and second applicants. The collected information was sent to a deputy prosecutor in Kazan who, on 11 June and 30 May 2014 respectively, instituted administrative proceedings against the applicants on the charge of mass dissemination and storage of extremist materials, an offence under Article 20.29 of the Code of Administrative Offences.
Both applicants immediately deleted the videos from their saved links but the case was referred for trial to the Vakhitovskiy District Court in Kazan.
By judgments of 8 and 18 July 2014, the District Court found both applicants guilty as charged and sentenced them to a fine of 1,000 Russian roubles (21.5 euros). The finding of guilt rested on the fact that since 2011 the video had been publicly accessible on the applicants’ VKontakte profiles and that it was identical to the video “Let’s remind the crooks and thieves about their 2002 Manifesto” which had been declared to be extremist material and included into the Federal List of Extremist Materials.
The applicants filed an appeal. In their view, their intent to disseminate massively the extremist material had not been established, they could not have known in 2011 that the video would be declared extremist two years later. The three-month prescription period had expired many times over if counting from the date they had saved the video in 2011, the date the video had been declared extremist in 2013 or even from the date the Federal Security Service had started identifying users who had reposted the video. Besides, the evidence collected by the Federal Security was inadmissible as it had been collected in breach of the requirements of the Operational-Search Activities Act.
On 13 and 20 August 2014 the Supreme Court of the Tatarstan Republic rejected the appeals in a summary fashion. It held that the applicants were fully responsible for the contents of their accounts, including the fact that the video remained accessible on their page even after it had been declared to be extremist material. The offence was a continuous one and the prescription period did not apply.
B. The cases of Mr Zavolgin and Mr Bondar
The applicant, Mr Aleksandr Sergeyevich Zavolgin, is a Russian national who was born in 1994 and lives in Yaroslavl. He is represented before the Court by Mr K. Terekhov, a lawyer practising in Moscow. The applicant, Mr Roman Yevgenyevich Bondar, is a Russian national who was born in 1994 and lives in Shebekino in the Belgorod Region.
In 2012 and 2016 Mr Bondar and Mr Zavolgin, respectively, copied a link to the music video featuring a performance of the song “Smoke” («Дым») by two Russian hip-hop bands, GROM and 25/17, to the My Videos folder in their (VKontakte) accounts. VKontakte is the largest Russian social networking service similar to Facebook.
On 5 July 2015 the Sarov Town Court in the Nizhniy Novgorod Region declared the song to be extremist and added it to the Federal List of Extremist Materials. A copy of that decision is not available to the Court.
At the material time Mr Zavolgin was a university student. At 7.40 a.m. on 7 July 2016 two police officers entered the room of the student residence where he was sleeping. They woke him up, told him to dress and took him by car to the police station where he was charged with mass dissemination and storage of extremist materials, an offence under Article 20.29 of the Code of Administrative Offences. Later the same day Mr Zavolgin was taken to the Krasnoperekopskiy District Court in Yaroslavl which found him guilty as charged and fined him RUB 1,000. The District Court held that by hyperlinking the music video which had been declared to be extremist, Mr Zavolgin committed a mass dissemination of extremist material. It did not address Mr Zavolgin’s arguments that he could not be aware of the Town Court’s judgment or that he did not call anyone to commit any extremist acts. On 11 August 2016 the Yaroslavl Regional Court rejected the appeal. It held in particular that, prior to making the music video publicly accessible from his homepage, Mr Zavolgin should have ascertained that it did not contain any extremist material.
On 11 February 2017 Mr Bondar came to the Shebekino police station where he had been summonsed as a witness in an unspecified criminal case. A police major told him he would be prosecuted for reposting the music video. Mr Bondar was not allowed to leave the police station, use his mobile phone or contact a lawyer during the four hours it took the police to draw up a report on the administrative offence under Article 20.29. On 14 February 2017 the Shebekinskiy District Court found Mr Bondar guilty of safekeeping a video file which had been pronounced to be extremist. The court noted that Mr Bondar had no criminal record, that he was employed and that he repented and sentenced him to ten days’ imprisonment, claiming that “a more lenient punishment would not achieve the objectives of the administrative penalty”. It also held that the video should be deleted from Mr Bondar’s personal account. On 17 February 2017 the Belgorod Regional Court upheld the conviction in a summary fashion.
C. Relevant domestic law
Article 20.29 of the Code of Administrative Offences provides that mass dissemination of extremist materials listed in the published Federal List of Extremist Materials, as well as the production or storage thereof with intent of mass dissemination, is punishable with a fine of between 1,000 and 5,000 Russian roubles or with up to fifteen days’ detention.
Section 8(2) of the Operational-Search Activities Act establishes that operational-search measures involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services or within the privacy of the home – such as an inspection of premises or buildings, an interception of postal, telegraphic, telephone and other forms of communication or a collection of data from technical channels of communication – require prior judicial authorisation (for further details, see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 34-43, ECHR 2015).
COMPLAINTS
The applicants complain under Article 10 of the Convention, taken alone and in conjunction with Article 13, that their punishment for linking a video from their personal accounts was not necessary in a democratic society and that the courts did not carry out an independent substantive assessment of the contents of the video.
QUESTIONS TO THE PARTIES
1. Was there a violation of Article 10 of the Convention? In particular, did the Russian courts apply the standards which were in conformity with the principles embodied in Article 10 of the Convention? Did they take into account the context in which the disseminated video had been made (the political context in the first two cases and the artistic context in the third and fourth cases)? Did they consider the way in which the applicants should have become aware that the videos they had hyperlinked had been subsequently declared extremist? Did they consider the proportionality of the sanction and the issue whether a warning or another, less intrusive measure could have been sufficient to achieve the desired dissuasive effect?
2. Did the applicants have an effective domestic remedy for their complaint about a violation of their right to freedom of expression, as required by Article 13 of the Convention, given that there was no legal requirement on the domestic courts to undertake a substantive analysis of the disseminated materials or the context of their dissemination?
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