Communicated on 24 May 2019
THIRD SECTION
Application no. 42633/18
Aleksey Vladimirovich GLUKHOV
against Russia
lodged on 27 August 2018
STATEMENT OF FACTS
1. The applicant, Mr Aleksey Vladimirovich Glukhov, is a Russian national, who was born in 1983 and lives in Novocheboksarsk. He is represented before the Court by Ms Irina Khrunova, a lawyer practising in Kazan.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is an attorney. Since 2011 he has been counsel for Mr Dmitriy Semenov, an opposition politician in the Chuvashiya Republic. In 2016, he represented Mr Semenov in the administrative proceedings, in which he was charged with publishing “extremist materials” consisting of a single sentence “Orthodoxy or death” («Православие или смерть») printed on the t-shirt of a Russian MP Milonov (see Semenov v. Russia, no. 47810/17).
4. On 16 November 2016 the applicant posted two updates on his Facebook newsfeed.
5. The first update showed a photograph of the court decision in Mr Semenov’s case on which the applicant commented, “The first judgment in Dmitriy Semenov’s case. Not to mention Article 28.2 of the COA”. Article 28.2 of the Code of Administrative Offences governs the procedure for drawing up a report on an administrative offence.
6. The second update linked to a newspaper article entitled “A Chuvash opposition politician on trial for publishing a photograph of Milonov” and gave the applicant’s comment, “Read this about today’s trial of Dmitriy Semenov under Article 20.29 of the COA. As the eminent expert on freedom of speech and internet Damir Gainutdinov says, holding someone liable for mere quoting [someone else’s speech] is not necessary in a democratic society. There was not even a quote [in this case]. For now, we asked [the court] to summon [FSB officers] with documents showing how they had come across a 2014 post in the course of [routine] monitoring, and to commission an expert to determine whether the offending phrase was present. The judge is deliberating, we are having a coffee break.”
7. On the same day a user by the name “Angry Russian” commented on the second update with a question “Well but what about Milonov?” and a link to the YouTube video “Vitaliy Milonov – Orthodoxy or death!”
8. On 30 April 2018 an officer of the Federal Security Service accessed the applicant’s Facebook page and printed out his personal details, two above-mentioned updates and comments on them. The printouts were certified by attesting witnesses in accordance with the Operational-Search Activities Act.
9. On 22 May 2018 the Novocheboksary police charged the applicant with publishing “extremist materials” consisting of a single sentence “Orthodoxy or death” contained, as regards the first update, in the text of the judgment in Semenov’s case and, as regards the second update, in the title of the video posted by “Angry Russian”.
10. The applicant deleted the comment under the second update as soon as he found out about the charges.
11. The trial was held before the Novocheboksary Town Court in the Chuvashiya Republic. The applicant submitted in his defence that he had not published any extremist material. The judicial decision had been a publicly accessible document, and the comment had been posted by someone else without his knowledge. He also pointed out that the two-year prescription period had already expired. The prosecutor refused to uphold the charges, referring to the public nature of the court judgment and to the fact that the applicant had not been the author of the comment.
12. On 24 May 2018 the Town Court gave judgment. It discontinued the proceedings on the charge of posting a photograph of a court judgment, finding that –
“... publication ... of an administrative-offence judgment ... does not constitute an administrative offence in the present case because Mr Glukhov has actually published an official document by a judicial body rather than a single prohibited phrase.”
The applicant was however found guilty on the charge of storage of extremist materials for allowing the comment to stay on his page:
“Mr Glukhov, as the account user exercising reasonable care and diligence, should have deleted the video which had been included in the list of extremist material – a fact that he was well aware of on account of his representation of Mr Semenov in the proceedings under Article 20.29 of the COA.”
The court also declined to apply the prescription period on the grounds that “public demonstration of extremist material on Mr Glukhov’s profile [had] continued without interruption since its publication in November 2016 and accordingly amounted to a continuous offence”.
The court fined the applicant in the amount of 1,000 Russian roubles.
13. On 19 July 2018 the Supreme Court of the Chuvashiya Republic upheld the conviction on appeal.
COMPLAINTS
14. The applicant complains under Article 6 § 1 of the Convention that the trial court’s impartiality was undermined on account of the fact that it took over the functions of the prosecution, after the prosecutor had refused to uphold the charges against him.
15. The applicant complains under Article 10 of the Convention that he was found liable for the comment which an unknown user had left on his Facebook profile.
QUESTIONS TO THE PARTIES
1. As regards the applicant’s conviction for failing to delete a third party’s comment on his personal Facebook account, was there a violation of Article 10 of the Convention?
2. As regards the prosecutor’s decision not to pursue the charges against the applicant, was it compatible with the principle of impartiality enshrined in Article 6 of the Convention that the trial court took over the functions of the prosecution (compare Karelin v. Russia, no. 926/08, §§ 51-84, 20 September 2016)?
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