Published on 29 March 2021
THIRD SECTION
Application no. 61449/19
Yevgeniy Sergeyevich OGURTSOV
against Russia
lodged on 18 November 2019
communicated on 9 March 2021
STATEMENT OF FACTS
1. The applicant, Mr Yevgeniy Sergeyevich Ogurtsov, is a Russian national, who was born in 1991 and lives in Novocheboksarsk. He is represented before the Court by Mr D. Gaynutdinov, a lawyer admitted to practice in Russia.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a fan of CSKA football club and the administrator of a Cheboksary fan group’s account in social media.
4. CSKA and Spartak are Moscow-based football clubs and members of the Russian Premier League, the top division professional association football league. Their intense competition has been known as the Main Moscow Derby. They have large fan bases notorious for their rivalry.
5. On 17 May 2017 Spartak won the game against FC Terek and became the Premier League champion for the first time since 2001. Its victory relegated CSKA, the previous year’s champion, to the second place.
6. Distraught over the defeat of his team, the applicant composed a verse, “17.05.17”, which he shared on social media and also published under a pen-name in a poetry collection, “Voice of Tribunes”, printed in 300 copies. The verse read:
“You have not had a win in sixteen years, // Like jackals, you walked past the cups, // You salivated with jealousy // Wherever CSKA claimed victory.
Your time had come, you won the Premier League, // You wetted your pants with joy, // It’s funny to look at you, you are all like imbeciles, // Tell me what is the reason for all that joy?
Have you ever won in Europe? // Have you ever brought glory to your country? // Spartak is shit, as are its fans, // I will wipe my ass with your crest!”
7. On 7 May 2019 the Novocheboksarsk prosecutor in the Republic of Chuvashiya summoned the applicant and charged him with inciting hatred towards the Spartak football club and Spartak fans on account of their membership of a social group, an offence under Article 20.3.1 of the Code of Administrative Offences. The factual basis for the charges was that he had published the verse in a poetry collection and offered the collection for purchase on his social media account with 177 friends and on the fan club account with a membership of 218 users. The charges rested on statements from three linguistics and psychology experts who determined that the verse featured degrading language against the Spartak team and fans and incited hatred towards them.
8. The applicant asserted his right not to incriminate himself and declined to give evidence.
9. From the prosecutor’s office the applicant was taken to the Novocheboksarskiy District Court. In the same-day trial he was found guilty as charged on the strength of the prosecutor’s evidence and sentenced to a fine of 10,000 Russian roubles (RUB).
10. In his statement of appeal, the applicant complained that the trial court had not identified specific instances of degrading language or hate speech, that he had been denied the opportunity to put questions to the experts on whose statements the conviction rested, and that he had not been afforded time to study the charges and prepare his defence.
11. On 13 June 2019 the Supreme Court of the Republic of Chuvashiya upheld the conviction. It found no procedural irregularities in the trial, referring to a provision according to which charges concerning an offence punishable by deprivation of liberty had to be referred to a judge immediately. The Supreme Court also noted that the applicant had not asked for a lawyer before the opening of the trial and had refused to give evidence.Relevant domestic law
12. Incitement of hatred towards, and degrading dignity of, an individual or group of individuals on account of sex, race, ethnic origin, language, social origin, religion or membership of a social group, if committed publicly, including by means of mass media or ICT networks, is punishable with a fine of between RUB 10,000 to 20,000, up to 100 hours’ community service or up to fifteen days’ detention (Article 20.3.1 of the Code of Administrative Offences).
COMPLAINTS
13. The applicant complains under Article 10 of the Convention that a satirical verse taunting fans of a rival football club did not amount to incitement of hatred and that his conviction was not necessary in a democratic society.
14. The applicant complains under Article 6 §§ 1 and 3(b) of the Convention that the proceedings were unfair and that he was not afforded any time to study the case file and prepare for the trial because he was taken to the court directly from the prosecutor’s office.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 10 of the Convention? In particular, did the domestic courts identify specific instances of hate speech and consider the context of the publication? Was it sufficiently foreseeable, under domestic law or jurisprudence, that supporters of a sports team would be taken to constitute a “social group” for the purposes of applying the hate speech provisions? Would such a definition of the protected group be necessary in a democratic society for achieving one or more legitimate aims?
2. Has there been a violation of Article 6 §§ 1 and 3(b) of the Convention? In particular, was the applicant afforded sufficient time to prepare his defence before the opening of the trial?
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