NCHR AND OTHERS v. RUSSIA and 1 other application

Communicated on 7 November 2016

THIRD SECTION

Applications nos. 16435/10 and 44561/11
NCHR and Others against Russia
and

RID NOVAYA GAZETA and ZAO NOVAYA GAZETA against Russia
lodged on 3 March 2010 and 25 May 2011 respectively

STATEMENT OF FACTS

THE FACTS

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 16435/10

This application was lodged by the NGO “the Novorossiysk Committee for Human Rights” (hereinafter - the “NCHR” or the “first applicant”), by Vadim Yevgenyevich Karastelev, who was born on 2 September 1965 and lives in Novorossiysk (second applicant), and Tamara Viktorovna Karasteleva, who was born on 2 June 1967 lives in Novorossiysk (third applicant). The applicants are represented by eight people residing in Moscow and London.

The Law on preventive measures against misconduct on the part of minors (“Minors Protection Act”) in the Krasnodar Region was adopted on 21 July 2008.

The second and the third applicants staged protests against this Act, which, in their opinion, violated the rights of minors. It appears that all the public events were preceded by prior notice given to the local authorities, as required by the applicable legislation on public events. According to the second and third applicants, they acted both as private citizens and as NCHR officials.

On 4 April 2009 the second and third applicant staged a static demonstration protesting against the Act. A poster stating “Freedom is not given, it has to be taken” was publicly exhibited during this demonstration. No measures were taken by the local authorities vis-à-vis the applicants with respect to this public event.

On 18 April 2009 another static demonstration was staged by the second and the third applicants. This time the above-mentioned poster was not used by the demonstrators. During this event two minors approached the applicants and had a short conversation with them.

On 22 April 2009 the minors’ parents lodged complaints with the prosecutor’s office. In particular, they complained that all three applicants had conducted propagandistic activity among the minors, including activity on the premises of secondary school no. 22, and that during the demonstration of 18 April 2009 the second applicant had invited the minors and their friends to participate in future demonstrations calling for abolition of the Act in question.

(a) Warning procedure against the applicants

On 27 April 2009 the second and the third applicants were summoned to the prosecutor’s office for the purpose of giving statements in respect of their alleged “propagandistic activity” involving minors, inter alia, during the demonstration of 18 April 2009. In their statements the applicants insisted that the NCHR had had nothing to do with that public event or any of the others that were mentioned in the complaint.

On 12 May 2009 the municipal authorities lodged a complaint against all three applicants because their activity had allegedly been of a “destructive nature” and asked the prosecutor’s office to take the requisite measures, including the dissolution of the NCHR.

On 7, 13 and 15 May 2009 the prosecutor’s office questioned the parents, their children and the deputy headmaster of the school.

On 21 May 2009 the prosecutor’s office issued the following legal instruments:

- Warnings (предостережение) on the unacceptability of violating the law, addressed to the second and third applicants in their capacity as representatives of the NCHR;

- Warning on the unacceptability of extremist activities, addressed to the third applicant as an official of the NCHR; and

- Order (представление) requiring seemingly the first applicant to remedy violations of the legislation to counteract extremist activities. It was pointed out that extremist activities on the part of an NGO could entail its dissolution.

The warnings from the prosecutor’s office referred to violations of the Suppression of Extremism Act of 2002 because the actions of the second and the third applicants during the demonstration of 18 April 2009 had been categorised as propagandistic activity and incitement to anti-social conduct. According to the prosecutor’s office, these actions might result in extremist activities in future because the minors had perceived the second applicant’s utterances as an incitement to disobey the law and the authorities. The prosecutor’s office also warned the applicants that penalties could be imposed, including the dissolution of the NCHR.

On 29 May and 5 June 2009, after the warnings had been issued, the poster “Freedom is not given, it has to be taken” was subjected to examination, apparently at the request of the prosecutor’s office, by:

- a holder of a PhD degree in philosophy, Mr R., who concluded that the banner was of an extremist nature;

- the head of the municipal medical and social center “Dialog”, Ms G., who stated in her findings that the banner contained a provocative statement that could be perceived by minors as a call to active resistance to the authorities.

On 3 June 2009 the second applicant requested from the prosecutor’s office permission to examine the inquiry file which formed the basis for issuing the warning. On 15 June 2009 this request was refused.

(b) Judicial review proceedings by the first and third applicants

On 4 June 2009 the third applicant, acting both for herself and on behalf of the first applicant, lodged a complaint with the Oktyabrskiy District Court of Novorossiysk. In her complaint she contested the lawfulness of the prosecutor’s warnings in substance and also the adoption thereof in violation of the procedure prescribed by domestic law.

The District Court held hearings on 14, 15, 18 and 24 June 2009. According to the internal rules, authorisation allowing the public access to a specific hearing must be sought from the presiding judge; no such access was granted in this case for the hearings on 14, 15 and 18 June 2009.

At the hearing on 24 June 2009 the prosecutor adduced as evidence the report prepared by Ms G. According to the applicant, the report by Mr R. was not presented at any of the hearings; it was referred to, however, in the court’s judgment (see below).

In the judgment delivered on 24 June 2009, the District Court dismissed the complaint. The court found the warnings well-founded and endorsed the conclusions of the expert reports by Ms G. and Mr R. In particular, the court confirmed that the poster “Freedom is not given, it has to be taken” was of an extremist nature, noting that it contained a provocative statement which “could be perceived by adolescents as an appeal to exercise active resistance against the authorities and statutes”. The court held as follows:

“The Suppression of Extremism Act and other pieces of legislation define rules and procedures for fighting against and punishing extremist activities with the aim of protecting human rights and freedoms and the foundations of the constitutional regime, and for the purpose of ensuring national integrity and security. Measures aimed at preventing extremist activity form part of the main principles of this fight ... ‘Extremist activity’ [under the Act] includes the obstruction of the lawful activities of State authorities combined with violence or threats of the use thereof ... The poster used by [the second and third applicants] during the demonstration was described by the experts as contributing to opposition to the activities of the State authorities ... ‘A human being has inherent unalienable rights of natural law such as the freedom of thought, to express his opinion, to live and so on. Thus, one cannot wait for such rights to be granted “from above”; they need to be taken by force ...’ ... The call to ‘take’ freedom outside the framework of the statutory rules is interpreted as a call by the organisers of the demonstration to engage in active opposition to the existing legislation, namely the ‘Minors Protection Act’ ...

The prosecutor’s office considered that [the applicants] had carried out campaigning (propagandistic) activities calling on pupils to take part in action against the ‘Minors Protection Act’ ... and that [the third applicant] had issued calls for anti-social activities ... The specialists concluded that the poster and the [applicants’] actions could be perceived by adolescents as an incitement to engage in active opposition to the State authorities ... A call to ‘take’ freedom means priority of human rights over the State. Thus, the slogan ‘Freedom is not given, it has to be taken’ is of an extremist nature ...”

On 6 August 2009 the third applicant lodged an appeal with the Krasnodar Regional Court. She argued as follows:

- the adolescents could not have seen the poster because none had been used during the demonstration in question, as confirmed by the electronically date-stamped photo evidence in the case file; the experts and the court had reached contradictory conclusions regarding the utterances and the holding of the poster by the third or second applicant (who, in any event, was not party to the present case);

- the court had not assessed the argument and the supporting evidence suggesting that during the demonstration the third applicant had acted as a private person and not as an official of the NGO;

- the report by Ms G. was a specialist report obtained by the prosecutor’s office rather than an expert report commissioned by the court, meaning that the third applicant had not been afforded an opportunity to suggest which expert institution to consult or questions to be raised before the chosen expert; this report had not been adduced as evidence during the trial and had therefore not been examined in adversarial proceedings offering the possibility to comment and to interview Ms G.; the Code of Civil Procedure did not allow evidence such as a specialist’s report; despite these factors, the court used this report to justify its judgment.

On 3 September 2009 the Regional Court upheld the judgment of 24 June 2009, while removing a reference to the second applicant from that judgment.

The second applicant sought supervisory review of the court decisions of 24 June and 3 September 2009. His application was rejected as inadmissible.

(c) Judicial review proceedings by the second applicant

In the meantime, on 23 July 2009 the second applicant complained to the Primorskiy District Court of Novorossiysk about the warning issued to him on 21 May 2009. On 7 August 2009 he asked the District Court to adjourn the examination of his complaint because he was planning to leave Novorossiysk before the date of the hearing. On 14 August 2009 the District Court issued a decision discontinuing the proceedings because the same subject-matter had already been determined by the judgment of 24 June 2009 by the Oktyabrskiy District Court (see above). On 17 November 2009 the Regional Court upheld this procedural decision in respect of the second applicant.

(d) Other proceedings and relevant circumstances

(i) The administrative offence proceedings against the first and third applicants

In order to comply with the requirements of the warnings of 21 May 2009, on 3 August 2009 the third applicant – representing the NCHR ‑ requested that the prosecutor’s office clarify its warnings because the documents did not explain how exactly the applicants’ alleged actions had breached the law. The third applicant also argued that the prosecutor’s office had failed to refer to the relevant law in its warnings.

On 20 August 2009 the prosecutor’s office issued a clarification of its warnings of 21 May 2009.

On 14 September 2009 the third applicant, representing the NCHR, replied to the prosecutor’s office, explaining that measures had been undertaken by the NCHR in order to comply with the prosecutor’s warnings.

On 21 September 2009 the prosecutor’s office opened administrative offence proceedings against the first and third applicants because they had allegedly not complied with the warnings in due time. They were accused of the offence under Article 17.7 of the Code of Administrative Offences.

On 25 September 2009 the second applicant acting on behalf of the third applicant submitted explanations to the prosecutor’s office in respect of the unlawfulness of the administrative offence proceedings.

Since that date there have been no further developments in those proceedings, nor has any decision to terminate these proceedings been taken in respect of the applicants.

(ii) The proceedings aimed at the dissolution of the NCHR

On 15 June 2009 – and thus after the prosecutor had issued the warnings of 21 May 2009 to the applicants – the headmaster of school no. 22 complained to the prosecutor’s office about another instance of propagandistic activity and incitement to anti-social activity on the part of the second and the third applicants (in their capacity as representatives of the NCHR) which had allegedly been carried out on the school’s premises on 25 and 26 May 2009.

On 7 August and 7 September 2009 the prosecutor’s office sought dissolution of the NCHR because the second and the third applicants had “repeatedly engaged in unlawful activity” after the warnings issued on 21 May 2009. On 30 September 2009 the prosecutor’s office asked the court to discontinue the proceedings aimed at the dissolution of the NCHR because the procedure for the submission of such a request had not been complied with. The court agreed to this request and discontinued the proceedings.

(iii) Other facts

On 19 February 2010 during the distribution of leaflets announcing the holding of another public event, the second applicant was arrested by local police officers. On the same date he was ordered to pay an administrative fine and was detained for a period of seven days, despite the fact that the distribution of leaflets is a lawful action under the Public Events Act. On 26 February 2010 the second applicant was released from the detention centre. On 27 February 2010 the second applicant was attacked by a group of unknown persons who beat him up brutally, kicking him and hitting him with rods.

2. Application no. 44561/11

The first applicant, Redaktsionno-izdatelskiy dom Novaya Gazeta, (hereinafter “RID”) is a non-governmental organisation (a publishing house). The second applicant, Izdatelskiy dom Novaya Gazeta, is a closed joint stock company (hereinafter referred to as “ZAO”).

The first applicant exercised the combined functions of the editorial board and publisher of Novaya Gazeta newspaper; the second applicant was the founder of this newspaper.

On 19 January 2009 the lawyer Stanislav Markelov and Novaya Gazeta correspondent Anastasia Baburova were beaten to death in the centre of Moscow. These two people were known for their antifascist position and they co-operated in different ways with the editorial board of Novaya Gazeta. The matter received extensive media coverage. Two individuals who were allegedly close to ultra-right-wing nationalist organisations and associations were arrested as suspects and then charged with murder for motives based on political, ideological, racial, national or religious hatred or enmity.

On 20 January 2010 on the first anniversary of the above events, Novaya Gazeta newspaper published an article entitled “Gang, agency, party. Who are the ‘Legal Nationalists’?” written by Mr N.

The applicants submitted that this article was the product of research into formal and informal associations with a nationalist bent; the primary focus of the article was the organisation Russkiy Obraz (RO), with which the murder suspects allegedly had connections. The main aim of the article was to show the kind of organisations that were laying claim to legal status and a place in public politics whilst embracing an ideology that was actually extremist and aimed at inciting racial and national discord, propagandising the exclusivity, superiority or inferiority of a person on the basis of his or her social, racial or national identity. The purpose of the article was not to approve or propagandise the views professed by the ultra-right-wing nationalist organisations but rather to counteract them, to expose them, to demonstrate their antisocial and unlawful essence, and thus to draw the attention of the public and the law-enforcement agencies to the activities of associations which are espousing and disseminating such ideas and related information.

The article included unedited quotations from RO’s official policy statement, which was obtained through direct access to RO’s website. The quotes were preceded by the following statement:

“RO asserts that it is not a fascist structure but a nationalist one. It threatens to sue anyone who calls them fascist. But so far it has not sued anyone. A political programme is posted on RO’s site. It is rather vague, but certain passages in it are not very supportive of the current legislation in Russia”.

The article also contained photographs which, according to the author, were intended to demonstrate the close connections between RO activists and openly fascist organisations, and show their use of fascist symbols and greetings, or symbols and greetings which could be perceived as similar to fascist ones.

On 31 March 2010 the Rozkomnadzor, a federal executive agency supervising mass media outlets, issued a warning document in respect of the applicants in relation to the above article. According to the federal agency, the article constituted dissemination of extremist material. The following parts of the article were considered to be of “extremist” nature:

- “Within their confined living areas the members of the aborigine non‑Slavic population have a right to pursue their lives on the basis of their national and religious traditions. Outside such areas the inhabitants are restricted in their civic (civil) rights.”

- “Male householders who joined the self-defence groups are considered as fully-fledged citizens.”

- “As to women, political rights are granted to those of them who take part in the community life or, according to their own wishes, joined the Guard Service.”

- “Inter-racial marriage is prohibited, being perceived as a full disregard for the fate of one’s own race.”

The agency also warned the applicants that the article contained visual presentations of symbols resembling Nazi symbols.

The applicants sought judicial review of the agency’s warning (Article 258 of the Code of Civil Procedure). The applicants argued that it was necessary to take into account the context and the legitimate purpose and aim of the articles, and that the statements which the applicants were accused of making constituted carefully-chosen verbatim quotes in order to support the proposition regarding the unlawful character of RO’s activity. The purpose of the article was to counteract the views professed by nationalist organisations, to expose them, to demonstrate their antisocial and unlawful essence, and thus to draw the attention of the public and the law‑enforcement agencies to the activity of the associations propagandising such views.

In its judgment of 20 September 2010 the Taganskiy District Court of Moscow dismissed the claim. The court endorsed the agency’s conclusions, considering that the impugned parts of the article were aimed at inciting social, racial and national hatred and put forward ideas of superiority or inferiority on the grounds of a person’s social status, race or membership of a national group. The court was satisfied that the impugned parts of the article fell within the scope of “extremist material” under the Suppression of Extremism Act. The court concluded that the applicants’ “rights or freedoms” had not been violated by the warning.

The applicants appealed to the Moscow City Court.

It granted the applicants’ motion and admitted into the file an expert report dated 7 November 2010 prepared by a panel of three renowned specialists in philology and linguistics, in collaboration with the Guild of Expert Linguists for Documentary and Information Disputes. The panel’s report contains the following conclusions:

“1. The article is written in the genre of journalistic investigation and can be categorised as political discourse in the journalistic style of written speech. One particularity of the investigative genre is that the journalist uncovers information on certain events or situations which have social significance that the participants therein would like to conceal from broad publicity.

2. The functional purpose of this article is directed at achieving critical and analytical goals and exposure, first and foremost by drawing the attention of the public and the authorities to a politically significant problem – namely the existence and active functioning of RO, which the author assumes violates current legislation, and also by reviewing the fascist (according to the author’s hypothesis) essence of this organisation.

3. Examined in the context of the article, the statements published in the article and which are quoted in the warning ... were aimed at achieving the goal of drawing the attention of the public and the law-enforcement authorities to one of the manifestations of RO’s activity which the author holds to be illegal.

The disputed statements quoted in this warning form part of RO’s political programme and they are provided in the text as one of the arguments testifying in favour of the author’s hypothesis that RO’s ideology is actually fascist, and that the activity of RO is unlawful in nature. Thus, in the informational structure of the text being studied, the disputed statements perform the function of documentary illustration – one of the elements with the assistance of which the author justifies his hypothesis regarding the unlawful character of RO’s activity. Without such justification, the author’s hypotheses would appear to be purely conjecture, and it would be unclear to a reader what the author was talking about and why he considered RO’s activity to be unlawful. In the context of this article, these statements cannot be considered as intending to incite social, racial or national discord, or to propagandise the exclusivity, superiority or inferiority of a person on the basis of his or her social, national or racial identity.

The use of a widely known slogan in the text – the well-established phrase “Russia for Russians” is not accompanied by any positive evaluation; there is no information which justifies or clarifies its content. This slogan is used as part of the statements necessary for the reader to understand the author’s vision of the reasons why RO has crossed over and taken a place among independently acting political forces. Such usage cannot be considered to be an aspect of propagandising the idea expressed by the slogan.

The text of the article did not quote other statements, words or phrases which have any characteristics of being aimed at inciting social, racial or national discord or at propagandising the exclusivity, superiority or inferiority of a person on the basis of his or her social, national or racial identity, or at creating a real threat of harming public safety.

4. When examined in context, the photographs which were published illustrating the text of this article seek to achieve the following purposes:

• drawing the attention of the public and law-enforcement authorities to one of the manifestations of RO’s activity which is unlawful in the opinion of the author ‑ namely Combat 18 – as well as the individuals depicted in the photographs;

• assisting in the recognition of RO as a secret Nazi organisation which possesses a definite style characterised by the entire range of associated Nazi emblems.

In the information structure of the article, these photographs perform the function of one of the elements which assist the author in justifying his hypothesis regarding the unlawful character of RO’s activity, along with the organisations related to it. Without such justification, the author’s hypotheses would appear to be purely conjecture, and it would be unclear to a reader what the author was talking about and why he considered the activity of these organisations to be unlawful.

The gestures and graphic forms which are represented in these photographs are used in the article to expose them for critical and analytical purposes which differ from the public demonstration of such gestures and graphic forms, and in the overall context they cannot be considered to be elements propagandising Nazi symbols or symbols which are confusingly similar to Nazi ones.”

On 30 November 2010 the Moscow City Court upheld the first-instance judgment.

B. Relevant domestic law and practice

1. Freedom of expression

(a) Constitution of the Russian Federation

The Constitution of Russia guarantees the right to freedom of thought and expression, as well as freedom to freely seek, receive, transfer and spread information by any legal means (Article 29).

Article 55 of the Constitution provides that rights and freedoms may be limited by federal statute only in so far as is necessary for protecting the foundations of the constitutional regime, the morals, health, rights and legitimate interests of others, and for ensuring national defence and security.

(b) Mass Media Act (Federal Law no. 2124-1 of 27 December 1991)

Subject to the exceptions prescribed in the provisions of the legislation concerning the mass media, section 1 of the Act prohibits restrictions on the freedom to seek, receive, produce and disseminate mass information or to found and manage a mass media outlet.

Section 4 prohibits the use of media outlets for the commission of criminal offences, for disclosing State or other protected categories of secret information, for disseminating material containing public calls to engage in terrorist activity or calls publicly justifying terrorism, or other extremist material or information containing propaganda of the cult of violence and cruelty.

Section 16 provides that the activity of a media outlet may be terminated or suspended only by a decision of its founder or by a court acting at the request of the registering authority on account of repeated (over twelve months) violations of the requirements set out in section 4 of the Act, in respect whereof the registering authority has issued a warning to the founder and/or the editorial board (editor-in-chief) in writing. The activities of media outlets may also be terminated using the procedures and on the grounds provided for by the Suppression of Extremism Act.

According to Ruling no. 16 of 15 June 2010 by the Plenary Supreme Court of Russia, the question of an alleged abuse of media freedom should be decided whilst taking into account the wording of the article and the context in which the impugned statements were made, together with the purpose, genre and style of the article and whether the statements may be deemed to constitute an expression of opinion in the field of political discussions or as drawing attention to the discussion of socially significant issues; it also depends on whether the article is based on an interview and on the attitude of the interviewer or the representatives of the media outlet’s editorial board to the opinions, judgements and assertions thereby expressed; it should also take into account the social and political situation in the country as a whole or in an individual part of it (depending on the region where this media outlet is distributed) (paragraph 28 of the Ruling).

(c) Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002)

Until August 2006 section 1 of the Suppression of Extremism Act (Federal Law no. 114-FZ on Combatting Extremist Activity, 25 July 2002) defined extremist activity/extremism as:

- forcible change of the constitutional foundations of the Russian Federation and breach of its territorial integrity;

- undermining the national security of the Russian Federation;

- taking over or usurpation of power;

- founding of armed criminal groups;

- carrying out of terrorist activity;

- inciting racial, ethnic, religious or social hatred accompanied by violence or calls for violence;

- diminishing national pride;

- creation of mass disorder, commission of disorderly or acts of large‑scale hooliganism or large-scale vandalism out of ideological, political, racial, ethnic or religious hatred or enmity, or out of hatred or enmity towards a social group;

- propaganda promoting the exceptionality, superiority or inferiority of persons on the grounds of their religion, social position, race, nationality/ethnic origin or language;

- propaganda and public display of Nazi attributes or symbols or attributes or symbols which are similar to Nazi attributes or symbols to the point of becoming undistinguishable;

- public appeals to carry out the aforementioned acts;

- funding the aforementioned acts or any assistance in preparing and carrying them out, including by providing training, printing and material/technical support, telephone or other means of communications or information services.

In August 2006 the above list was amended to include:

- public justification of terrorism;

- obstruction of the lawful activities of State authorities, electoral commissions and their officials, combined with violence or threats of the use thereof;

- public defamation of a State official of the Russian Federation or its constituent entities during the exercise of his or her official duties or in connection with those duties, including accusations of committing the acts mentioned in section 1 of the Act (provided that defamation was proven before a court);

- use of violence or threats of violence against a State official or his or her next of kin in relation to his or her official duties;

- an assassination attempt in respect of a State official or public figure, committed with the aim of putting an end to his or her public or other political activity or as a measure of revenge for that activity;

- violation of an individual’s rights and freedoms or damage to health or property on account of his or her religion, race, ethnicity, social position or social origin.

In August 2007 the list was amended and new definitions of extremist activity were added.

Section 11 prohibits the dissemination of extremist material via mass media outlets. According to section 1 of the Act, material that can be classified as “extremist” includes material that incites social, racial, national or religious hatred or promotes the notion of superiority or inferiority on the basis of a person’s social status, race, language or religious beliefs. It also covers the public presentation of Nazi or other similar symbols.

Section 7 authorises the competent supervising authority to issue a non‑governmental organisation with a warning (предупреждение) about the unacceptability of extremist activity. Where published material contains extremist content, the mass medium’s founder and (or) editorial board should be issued with a warning about the unacceptability of the dissemination of extremist material (section 8 of the Act).

The Constitutional Court of Russia considered that the prohibition of the display of Nazi or Nazi-like symbols was an acceptable move by the legislator aimed at countering extremism, fascism or other actions offensive to the memory of victims of World War II . The use of such symbols, as they stand, could cause suffering to family members of the victims (decision no. 2480-O of 23 October 2014). The relevant legislation was aimed at ensuring peace between national groups, harmonising inter-ethnic relations and protecting the rights of others (decision no. 347-O of 17 February 2015).

The Constitutional Court stated that, while the Russian Constitution did indeed protect freedom of expression, it also expressly prohibited propaganda inciting social, racial, ethnic or religious hatred as well as the propagandising of social, racial, ethnic, religious or linguistic superiority. The legislation in question therefore could not and did not offend individual rights or freedoms (decision no. 940-O-O of 18 December 2007, no. 1271‑O-O of 19 June 2012). Courts should take into account the actual or implied contradiction between the impugned actions (documents) and the constitutional prohibition of the incitement of hatred and the like, bearing in mind the content and form of the impugned activities or information, the target audience and the intended message, the social and political context, and the presence of real danger, for instance, in relation to the calls for unlawful interferences with constitutional values) (decision no. 1053-O of 2 July 2013). As such and as applied, restrictions on the freedom of expression and the freedom to impart information should not ensue merely because the impugned activity or information does not conform with mainstream, well-established or traditional views or opinions, or conflicts with moral or religious preferences (ibid.).

(d) Supervising powers of prosecutors

For the purpose of avoiding the commission of offences and in cases where there is information that offences are being planned, a prosecutor should issue a written warning (предостережение) about the unacceptability of violations of the law. Such warning may be made to the officials of a non-governmental organisation or – if the available information reveals plans for an extremist activity – to the chief officer of the organisation in question, or other appropriate persons (section 25.1 of the Prosecutors Act, Federal Law no. 2202-1 of 17 January 1992). Failure to comply with the prosecutor’s orders as set out in the warning document entails liability on the part of the official to whom the warning was issued (ibid.).

A prosecutor may also issue an order to remedy violations of the law; this order should be addressed to the official who is competent to remedy such violations (section 24 of the Prosecutors Act).

2. Judicial review

(a) Before 15 September 2015

Until 15 September 2015 the procedure for examining complaints about decisions, acts or omissions of State and municipal authorities and officials was governed by Chapter 25 of the Code of Civil Procedure (the CCP), and the Judicial Review Act (Law no. 4866-1 of 27 April 1993 on judicial review of decisions and acts violating citizens’ rights and freedoms).

Chapter 25 of the CCP and the Judicial Review Act both provided that a citizen might lodge a complaint before a court about an act or decision by any State or municipal authority or official if he considered that the act or decision had violated his rights and freedoms (Article 254 of the CCP and section 1 of the Judicial Review Act). The complaint might concern any decision, act or omission which had violated the citizen’s rights or freedoms, had impeded the exercise of rights or freedoms, or had imposed a duty or liability on him (Article 255 of the CCP and section 2 of the Judicial Review Act).

The complaint had to be lodged with a court of general jurisdiction within three months of the date on which the complainant had learnt of the breach of his rights. The time-limit might be extended for valid reasons (Article 254 of the CCP and sections 4 and 5 of the Judicial Review Act). The complaint had to be examined within ten days (Article 257 of the CCP).

When examining the case the court had to ascertain: whether the complainant had complied with the time-limit for lodging a complaint and whether the contested decision, act or omission was lawful and justified (point 22 of Supreme Court Ruling no. 2). In particular, the court had to examine: (a) whether the State or municipal authority or official had the competence to make the contested decision or to perform the contested act or omission. If the law conferred discretionary powers on the State or municipal authority or official, the court had no competence to examine the reasonableness (“целесообразность”) of their decisions, acts or omissions; (b) whether the procedure prescribed by law had been complied with. Only serious breaches of procedure could render the contested decision, act or omission unlawful; (c) whether the contents of the contested decision, act or omission met the requirements of law. The contested decision, act or omission was to be declared unlawful if one of the above conditions had not been complied with (point 25).

The burden of proof as to the lawfulness of the contested decision, act or omission lay with the authority or official concerned. The complainant however had to prove that his rights and freedoms had been breached by the contested decision, act or omission (section 6 of the Judicial Review Act and point 20 of Supreme Court Ruling no. 2).

The court allowed the complaint if it had been established that the contested decision, act or omission breached the complainant’s rights or freedoms and was unlawful (point 28 of the Supreme Court Ruling no. 2). In that case it issued a decision overturning the contested decision or act and requiring the authority or official to remedy in full the breach of the citizen’s rights. He or she might then claim compensation in respect of pecuniary and non-pecuniary damage in separate civil proceedings (Article 258 § 1 of the CCP and section 7 of the Judicial Review Act). The court might determine the time-limit for remedying the violation and/or the specific steps which needed to be taken to remedy the violation in full (paragraph 28 of Supreme Court Ruling no. 2).

The court rejected the complaint if it found that the challenged act or decision had been taken by a competent authority or official, was lawful, and did not breach the citizen’s rights (Article 258 § 4 of the CCP).

(b) Since 15 September 2015

On 15 September 2015 Chapter 25 of the CCP and the Judicial Review Act were repealed and replaced by the Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015, hereafter “the CAP”), which entered into force on that date. Confirming in substance the majority of the provisions of Chapter 25 of the CCP and the Judicial Review Act, the CAP amended some of them.

When examining the case, the court must review the lawfulness of the contested decision, act or omission (Article 226 § 8). In particular, the court must examine: (1) whether the complainant’s rights and freedoms have been breached; (2) whether the complainant has complied with the time-limit for lodging the complaint; (3) whether the following legal requirements have been met: as regards the State or municipal authority’s or official’s competence to make the contested decision or to perform the contested act or omission; as regards the procedure prescribed by law for adopting the contested decision or performing the contested act or omission and as regards the grounds for the contested decision, act or omission if such grounds are prescribed by law; and (4) whether the contents of the contested decision, act or omission met the requirements of law (Article 226 § 9).

The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. The complainant however has to prove that his rights and freedoms have been breached by the contested decision, act or omission and that he has complied with the time-limit for lodging the complaint (Article 226 § 11).

The court allows the complaint if it has been established that the contested decision, act or omission is unlawful and breaches the complainant’s rights or freedoms. In that case it requires the authority or official to remedy the breach of the citizen’s rights or to stop hindering such rights (Article 227 § 2). When necessary the court determines the specific steps which need to be taken to remedy the violation and sets out a time‑limit (Article 227 § 3).

COMPLAINTS

16435/10:

The applicants argue under Article 10 of the Convention that the actions of 21 May 2009 were unlawful in a number of respects, did not pursue any legitimate aim and were disproportionate. The domestic legislation defines as “extremist” the action of “obstruction of the lawful activities of State authorities, combined with violence or threats of the use thereof” (or calls thereto); nothing in the second and third applicants’ actions and, a fortiori, their verbal expression could be said to amount to obstruction, still less was there any violence or threat of the use thereof.

The first applicant (NCHR) also complains that it had nothing to do with the other two applicants’ expressive conduct, that it was wrongly prosecuted on account of the acts of 21 May 2009, exposing it to the risk of dissolution, and that the domestic authorities, including the courts, failed to deal with this argument.

The applicants argue, in substance under Article 13 of the Convention, that the domestic authorities, including the courts during judicial review, failed to carry out a necessity and proportionality assessment, confining their review to formal legality and the observance of relevant procedures. The second applicant complains about the refusal to examine his complaint (to be examined under Article 6 of the Convention).

The applicants also complain under Article 6 of the Convention that the court proceedings were unfair and that the courts failed to reply to the key arguments. In particular, the first and third applicants complain that the restriction of the public’s access to the hearings was disproportionate and that they were put at a substantial disadvantage vis-à-vis the prosecutor in their case, in particular owing to the belated submission of G.’s report and the violation of the adversarial procedure in respect of R.’s report.

44561/11:

Referring to Article 10 of the Convention, the applicants complain that the warnings issued to them amounted to an unlawful and disproportionate interference with their freedom of expression, in particular their freedom to impart the results of investigative journalistic work intended to describe (adopting a critical stance) ideologies and activities pertaining to the object of the investigation. They also complain that the domestic authorities, including the courts, failed to establish the relevant facts and to provide relevant and sufficient reasoning in compliance with the standards set out in Article 10 of the Convention and that the courts confined their review to formal and procedural legality without considering the issues of necessity and proportionality.

COMMON QUESTIONS

1. Was there a violation of Article 10 of the Convention in respect of each applicant? In particular:

1.1. Was the “interference” prescribed by law? In particular, was it a foreseeable and reasonable interpretation of the law to classify as “extremist activity” verbal criticism directed at a statute or a written comment referring to the extremist activity of an organisation?

1.2. What legitimate aim were the “intereference” and the legislation that was applied genuinely seeking to pursue (see Perinçek v. Switzerland [GC], no. 27510/08, §§ 150-57, ECHR 2015 (extracts))?

1.3. Was the “interference” shown to have been necessary and proportionate in the circumstances of each case? In particular:

- As to application no. 16435/10, did Russian legislation or the courts in the present case attach any significance to the context of the display or to the intention of the person(s) displaying Nazi or similar attributes or symbols?

- As to application no. 44561/11, did the applicants and/or the article’s author demonstrate diligence, in line with their “duties and responsibilities”, for instance, by way of distancing themselves from the described ideology, principles or activities?

2. Did each applicant have an effective remedy for the complaint under Article 10 of the Convention, as required by its Article 13? In particular:

- In the light of Ruling no. 2 of 10 February 2009 of the Plenary Supreme Court of Russia (see “Relevant domestic law and practice”), did the procedure under Chapter 25 of the Code of Civil Procedure allow for a necessity and proportionality analysis? Did the national courts carry out a necessity and proportionality analysis?

- Did the administrative authority and then the courts carry out a necessity and proportionality analysis, as required by Article 10 of the Convention, providing relevant and sufficient reasons for the interference with the applicants’ freedom of expression, including the freedom to impart information (see for comparison Vajnai v. Hungary, no. 33629/06, §§ 48‑58, ECHR 2008; Leroy v. France, no. 36109/03, § 38, 2 October 2008; and Gündüz v. Turkey, no. 35071/97, §§ 42-53, ECHR 2003‑XI)?

CASE-SPECIFIC QUESTIONS

16435/10:

1. Was the criminal limb of Article 6 of the Convention applicable to the non-judicial proceedings resulting in the issuing of the “warnings” in respect of the second and third applicants and to the ensuing judicial-review proceedings? If not, did these proceedings determine the applicants’ “civil obligations” or “civil rights”?

Depending on the answers to the above questions:

2.1. As regards the second applicant, was there a violation of his right of access to a court under Article 6 of the Convention or under Article 2 of Protocol No. 7 to the Convention?

2.2. Did the third applicant have a fair hearing, as required by Article 6 § 1 of the Convention (see, by way of comparison, Shulepova v. Russia, no. 34449/03, §§ 61-70, 11 December 2008, and Matytsina v. Russia, no. 58428/10, §§ 166-208, 27 March 2014)? Was she afforded adequate time and facilities to prepare her defence, as required by Article 6 § 3 (b) of the Convention?

2.3. Was there a violation of Article 6 of the Convention in respect of the third applicant on account of the absence of a public hearing in the case resulting in the judgment of 24 June 2009 (see Starokadomskiy v. Russia (no. 2), no. 27455/06, §§ 55-63, 13 March 2014)?

 

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