Information Note on the Court’s case-law 251
May 2021
Kilin v. Russia - 10271/12
Judgment 11.5.2021 [Section III]
Article 10
Article 10-1
Freedom of expression
Conviction for sharing content online within a small social-media group with intent to incite violence against non-Russian ethnicities, established in absence of commentary: no violation
Article 6
Criminal proceedings
Article 6-1
Public hearing
Holding appeal hearing in camera not strictly required as a safety consideration: violation
Facts – The applicant was convicted for public calls to violence and ethnic discord on account of video and audio files that had been made accessible via an online social-network account (VKontakte). On appeal, the appellate court quashed the judgment of the justice of the peace and issued a new one: the applicant then filed an unsuccessful cassation appeal with the Regional Court.
Law
Article 10: Although the applicant had denied that he had been the user of the relevant social-network account, and alleged that the impugned video and audio content had been published by others, the Court proceeded on the assumption that there had been an “interference” with his right to freedom of expression, which had been prescribed by law.
On the question of whether the interference had pursued a “legitimate aim”, the Court was not satisfied that the interests of national security, territorial integrity and public safety had been shown to be pertinent in the present case. It considered, however, that the applicant’s criminal prosecution could be regarded as having been intended for the prevention of disorder and crime and for the protection of the “rights of others”, specifically the dignity of people of non-Russian ethnicity, in particular Azerbaijani ethnicity. In the Court’s view, incitement of discord between ethnic groups through calls to violence might be prejudicial to all the groups involved and other sectors of the population.
The Court had to determine whether the criminal conviction had been “necessary in a democratic society”. The Court had previously taken into account the intention of or the purpose pursued by the applicant, in particular where that consideration had formed part of the criminal courts’ reasoning (see e.g. Jersild v. Denmark, 15890/89, 23 September 1994). In that connection, the Court had also taken note of the position of the Council of Europe’s European Commission against Racism and Intolerance (ECRI) that, in some instances, a particular feature of the use of “hate speech” was that it might be intended to incite, or could reasonably be expected to have the effect of inciting, others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it.
The applicant had been prosecuted in relation to that type of “incitement” and his conviction had been based on the consideration that his actions had been intended to incite violence. The relevant provision of the Criminal Code did not appear to require any assessment of a risk of harmful consequences, it being sufficient to establish a defendant’s direct intention and his or her actual aim to incite (to call) others to carry out extremist activities, that is – in the present case – to induce ethnic discord and to violate the rights of non-Russian ethnicities, both by way of violent actions against them. The finding of guilt had been based on two considerations: firstly, the finding that the third-party content had contained calls to violence aiming at inciting ethnic discord and at violating rights and freedoms of non-Russian ethnic groups because of their ethnicity; and secondly, a number of indications relating to the applicant’s attitude toward the content, the applicant having chosen to remain silent during the criminal proceedings.
To assess the weight of the applicant’s interest in the exercise of his right to freedom of expression, the Court had to examine the nature of his statements. The Court considered that the sharing of third-party content online through social-media platforms was a frequent way of communication and social interaction and that it did not always pursue any specific communicative aim or aims, especially where a person did not accompany it with any comment or otherwise signify his or her attitude toward the content. It did not exclude that such act of sharing certain content could still contribute to an informed citizenry. The applicant had taken no stance relating to his involvement in and motivation for making the impugned material available through the VKontakte account. The domestic courts had established that the applicant had expressed interest in what could be described as nationalist ideas and the applicant had not challenged that finding at the national level or before the Court. There was no indication that the applicant’s acts had been accompanied by any statement, for instance, uncovering the applicant’s attitude towards the impugned material. Relying on: the expert report; the fact that the uploading of the video had been followed by the uploading of similar content; witness statements; and a wiretapped telephone conversation, the appellate court had considered that the applicant’s communicative intent had consisted in calling to violence aiming at ethnic discord and at violating non-Russians’ rights and freedoms. The Court had no reason to consider that by uploading the impugned material to his account and making it accessible to other users the applicant had contributed or at least intended to contribute to any debate on a matter of public interest.
Concerning the impugned video: its title had corresponded to the title of a well-known cinematographic work which could be classified as a “mockumentary”. The experts considered that the impugned excerpt had been filmed in that genre and represented, within the film’s plot, the process of filming a propaganda video. However, the Court had no reason to consider that the applicant’s act of sharing the impugned video had been (intended as) a means of his own artistic expression of satirical social commentary. At the same time, the film’s message had no longer been apparent in any manner or form, the video being presented in isolation from the overall context of the film and without any context or commentary. In the Court’s view, an ordinary viewer could be mistaken as to the message of the video (namely, to mock propaganda techniques with a racist agenda). The Court accepted the national courts’ finding that the video could have been reasonably perceived as stirring up ethnic discord calling for violence against people of Azerbaijani origin and as calling for violating their rights by violent actions: the same could also be said for the audio file.
In view of the foregoing, and given the racist nature of the material and the absence of any commentary on such content, the domestic courts had convincingly demonstrated that the impugned material had incited ethnic discord and, foremost, the applicant’s clear intention of bringing about the commission of related acts of hatred or intolerance.
The material had been uploaded to a social-networking website that had been accessible, at the time, through the Internet. Access to the material had depended on the account user’s acceptance of those witnesses as “friends” of the account: some fifty people could have accessed that material. However, the Court did not exclude that the sharing of such content in such a manner within an online group (even a relatively small one) of like-minded persons might have the effect of reinforcing and radicalising their ideas without being exposed to any critical discussion or different views.
While there was no indication that the material had been published against a sensitive social or political background, or that at the time the general security situation in Russia had been tense, those elements had not been decisive in the present case: the domestic courts’ reasoning based on the applicant’s criminal intent could be regarded as both relevant and sufficient.
Lastly, the nature and severity of the penalties imposed (a suspended eighteen-month term of imprisonment with a similar period of probation and some other requirements) had been proportionate in the specific circumstances.
Conclusion: no violation (unanimously).
Article 6 § 1: The applicant had further complained that the appeal hearing in his criminal case had been held in camera.
The Court did not rule out that safety considerations relating to (a threat to) one’s physical integrity could fall within the scope of, at least, one of the legitimate interests in excluding the press and public from all or part of a trial. Under Russian law, such exclusion was considered as one of the protective measures in that context.
Having said that, the Court was not satisfied that the decision to hold the appeal hearing in camera had been shown to have been “strictly required” on account of the mere fact that the type of offence for which the applicant had stood trial was prescribed in the chapter of the Code of Criminal Procedure concerning offences against the foundations of the constitutional regime and national security. Nor had that fact, per se, been sufficient for deducing that the safety of unspecified persons that participated or were going to participate in the appeal hearing had been at stake. The appeal court had not pointed to any factual elements or legal arguments for justifying the hearing in camera: in that connection, the justice of the peace had held a public hearing, without any safety considerations being raised.
The Court noted that: the cassation-instance court had considered that the applicant’s procedural rights had not been violated on account of the appeal hearing in camera, in the light of the public hearing held by the justice of the peace; the defence had not appealed against the decision to hold the appealing hearing in camera; and in their cassation appeal they had not submitted convincing arguments to the effect that the appeal hearing in camera had significantly impinged upon the defence’s rights. However, the (non-)violation of the defendant’s right to a public hearing vis-à-vis the exclusion of the public and the press did not necessarily correlate with the existence of any actual damage to the defendant’s exercise of his other procedural rights, including those protected under Article 6 § 3 (rights of the defence). Nor could the examination of the case by the justice of the peace at a public hearing entail the conclusion that Article 6 § 1 had been complied with. It had not been appropriate to dispense with an oral (and thus public) hearing on appeal because the applicant had already had one at first instance. In that connection, after an oral hearing the appeal court had set aside the trial judgment and issued a new one convicting the applicant.
Lastly, it had not been argued that the alleged violation of the applicant’s right to a public hearing on appeal had been redressed in the cassation-instance proceedings before the Regional Court.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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