Communicated on 18 September 2017
THIRD SECTION
Applications nos. 9163/13 and 45317/14
Eduard Valeryevich MOCHALOV against Russia
and Ilya Arsentyevich IVANOV against Russia
lodged on 25 January 2013 and 29 May 2014 respectively
SUBJECT MATTER OF THE CASES
The first applicant was the founder and the editor of Vzyatka (“bribery” in Russian), a newspaper published in the Chuvashiya Republic, Russia. The first applicant claimed to be the sole author of the article (essentially about the Chuvash language – a second official language in the republic together with Russian – in the past and in modern Russia, and as a reply to a series of earlier publications) published in this newspaper on 4 May 2011. Arguably, the second applicant (a freelance journalist collaborating with the newspaper) merely typed the electronic text and edited it essentially stylistically. In June 2011 the regional office of the Federal Security Service wrote to Ch., history and political studies scholar with the Nizhniy Novgorod State University, indicating that the newspaper had published various extremist materials since early 2011 and asking him to assess the impugned article.
By the final judgment of 25 July 2012 the regional court included this article in the list of extremist materials. The court considered that the article incited ethnic (national) enmity, namely between ethnic Russians and Chuvashs.
In separate proceedings, the second applicant was convicted under Article 282 of the Criminal Code (CC) as the author of the impugned article and was sentenced to 300 hours of compulsory labour. In view of the expiry of the prosecution period, the applicant was absolved from the obligation to serve this sentence.
Between April 2011 and late 2012 the regional court authorised interception of Mr Mochalov’s telephone communications in view of his links to Mr Ivanov who was being suspected of a possible offence under Article 282.1 of the CC. Interceptions of Mr Ivanov’s and his colleague K.’s communications were authorised in August 2012.
QUESTIONS tO THE PARTIES
Application no. 9163/13:
Was there a violation of Article 10 of the Convention as regards the banning of the article that the applicant chose to publish in his newspaper and, allegedly, authored alone or together with Mr Ivanov? In particular:
(a) Was the “interference” “necessary in a democratic society” in view of the alleged tense region-specific or otherwise pertinent background (for instance, bearing in mind the contemporaneous media context and the context of linguistic rights of national/ethnic minorities)? Could the article, fairly construed and seen in its immediate or wider context, be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance, for instance on account of sweeping statements attacking or casting in a negative light an entire ethnic or other group? Could the article, directly or indirectly, lead to any harmful consequences?
(b) Did 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)? In particular, did the courts specify which parts of the impugned article were problematic, and draw their own conclusions from the linguistic studies of the material (see paragraph 23 of the Plenary Supreme Court’s ruling no. 11 of 28 June 2011)? Did the courts take due account of the factors mentioned in sub‑section (a) above, in particular having regard to the requirements imposed on the domestic courts by the Plenary Supreme Court of Russia in its ruling no. 21 of 27 June 2013 (in particular, paragraphs 5 and 8)?
Application no. 45317/14:
1. Did the applicant have a fair trial as required by Article 6 § 1 of the Convention? In particular:
- Was the applicant afforded an adequate opportunity to contest the adverse evidence, including the expert evidence obtained by the prosecution (the psycho-linguistic reports of 8 October 2012 and 22 February 2013) (compare Matytsina v. Russia, no. 58428/10, §§ 1681-95, 27 March 2014; Constantinides v. Greece, no. 76438/12, §§ 37‑38 and 47-51, 6 October 2016; and Seton v. the United Kingdom, no. 55287/10, §§ 59-66, 12 September 2016)?
- Was the applicant afforded an adequate opportunity to adduce evidence in support of his position (inter alia, by way of submitting the “specialist reports” issued by Ms Nikitina with Mr Maksimov and Mr Gusarov with Mr Kusznetsov, Mr Khuzangay, or by way of their oral testimony at the trial) and to have such evidence assessed by the court? Was the applicant able to obtain the attendance of witnesses on his behalf (the above specialists; Ms Fillipova) under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?
2.1. Was there a violation of Article 8 of the Convention in respect of Mr Ivanov on account of the interception of communications involving the applicant, namely via his own, K.’s or Mr Mochalov’s telephones (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 260-67 and §§ 302-304, ECHR 2015)? In particular:
- Was the interception “in accordance with the law”, in pursuance of a legitimate aim and “necessary in a democratic society”? Did the domestic courts adduce “relevant and sufficient” reasons for the interference and base their conclusions on an acceptable assessment of the facts?
- At the material time was the applicant suspected of any criminal offence? Did the domestic courts authorising interception ascertain the sufficient factual basis for a reasonable suspicion against the applicant or, in so far as relevant here, K. or Mr Mochalov under Article 282.1 of the Criminal Code concerning actions within “an extremist community” based on the allegations of “propagating ideas of Pan-turkism, separatism and national superiority”, “compromising Russia’s policies regarding national relations” and “reviving the activities of the Assembly of the Peoples of the Volga area and the Urals, for creating a sovereign state of Idel-Urals”?
2.2. Having regard to Article 38 of the Convention, the respondent Government is requested to submit a copy of the requests for the authorisation of interceptions of communications on Mr Ivanov’s, Mr Mochalov’s and K.’s telephones, together with the supporting documents enclosed with such requests; the authorisation decisions issued by the Supreme Court of the Chuvashiya Republic in relation to the interception matter, including decision no. 3019 of 14 April 2011, no. 3296 of 17 April 2012, no. 6829 of 8 August 2012, no. 7090 of 16 August 2012.
3. Was there a violation of Article 10 of the Convention on account of the criminal prosecution against the applicant under Article 282 of the Criminal Code and the interception of his communications because of his political views and journalistic activities? In particular:
(a) Was the “interference” “necessary in a democratic society” in view of the alleged tense region-specific or otherwise pertinent background (for instance, bearing in mind the contemporaneous media context and the context of linguistic rights of national/ethnic minorities)? Could the article, fairly construed and seen in its immediate or wider context, be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance, for instance on account of sweeping statements attacking or casting in a negative light an entire ethnic or other group? Could the article, directly or indirectly, lead to any harmful consequences?
(b) Did 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)? In particular:
- Was it appropriate to apply the Court’s jurisprudence relating to the press and journalism in the present case, as claimed by the applicant? Was the relevant principles applied by the domestic courts?
- As regards criminal prosecution, was it convincingly established that the applicant was the author of the impugned article? Did the courts specify which parts of the impugned article were problematic, and draw their own conclusions from the linguistic studies of the material (see paragraph 23 of the Plenary Supreme Court’s ruling no. 11 of 28 June 2011)?
- Did the courts take due account of the factors mentioned in sub-section (a) above, in particular having regard to the requirements imposed on the domestic courts by the Plenary Supreme Court of Russia in its ruling no. 21 of 27 June 2013 (in particular, paragraphs 5 and 8)?
(c) Regard being had to the grievances under Article 6 of the Convention (see above), was the decision-making process leading to the interference fair and such as to afford due respect to the interests safeguarded to the individual by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 133, ECHR 2016)?
4. Was the alleged “interference” with the applicant’s freedom of association in breach of Article 11 of the Convention in so far as his prosecution under Article 282.1 of the CC, including the authorisation of the interception of his communications, was based, inter alia, on his presumed activities aimed at “reviving” the Assembly of the Peoples of the Volga area and the Urals?
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