Published on 5 June 2023
THIRD SECTION
Application no. 5411/20
OOO Komsomolskaya Pravda - Kaluga against Russia
and 11 other applications
(see list appended)
communicated on 19 May 2023
SUBJECT MATTER OF THE CASE
The twelve applications under consideration concern various restrictions on the exercise of the right to freedom of expression experienced by journalists and media outlets in the Russian Federation between 2018 and 2022. For details of the events and domestic proceedings in each of the applications, see Annex II.
QUESTIONS TO THE PARTIES
COMMON QUESTION UNDER ARTICLE 10
1. Has there been a violation of the applicants’ right to freedom of expression guaranteed by Article 10 of the Convention? In particular, did the measures taken or sanctions imposed by the Russian authorities discourage the participation of the media in debates over matters of legitimate public concern (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298, and NIT S.R.L. v. the Republic of Moldova [GC], no. 28470/12, § 178, 5 April 2022)?
CASE-SPECIFIC QUESTIONS UNDER ARTICLE 10
2. (a) As regards applications nos. 5411/20 and 16278/21, did the domestic courts apply in the civil defamation proceedings against the applicants the standards that were in conformity with the standards of the Court’s case-law concerning freedom of the media (see Skudayeva v. Russia, no. 24014/07, 5 March 2019)?
(b) As regards application no. 14662/21, was the applicant’s administrative-offence conviction for the presumed “organisation” of a peaceful yet unauthorised assembly foreseeable (see Semir Güzel v. Turkey, no. 29483/09, § 34, 13 September 2016, and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015)?
(c) As regards applications nos. 22817/21, 43551/21, 53086/21 and 57924/21, did the applicable legal framework establish safeguards capable of protecting individuals from excessive and arbitrary effects of sweeping blocking measures (see Engels v. Russia, no. 61919/16, § 34, 23 June 2020)?
(d) As regards applications nos. 4045/22 and 28925/22, were the reasons given by the authorities for the searches of the journalists’ homes “relevant” and “sufficient”? Having regard to the margin of appreciation afforded to the national authorities, was the interference proportionate to the legitimate aims pursued? Did it correspond to a “pressing social need” (see Nagla v. Latvia, no. 73469/10, §§ 93-94, 16 July 2013)?
(e) As regards application no. 11884/22, were the applicants afforded a measure of protection against arbitrariness required by the rule of law in a democratic society when their licences were revoked (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 139-43, ECHR 2012, and Mukhin v. Russia, no. 3642/10, §§ 179-82, 14 December 2021)?
(f) As regards application no. 53150/22, does Article 20.3.3 § 2 of the CAO meet the “quality of law” requirement? Was Mr Azar’s administrative‑offence conviction for having published an anti-war statement on a social media account “necessary in a democratic society”?
CASE-SPECIFIC QUESTIONS IN APPLICATION No. 11884/22
3. Has there been a breach of the obligations under Article 34 of the Convention on account of the Government’s failure to comply with the interim measure indicated to them (see Ecodefence and Others v. Russia, nos. 9988/13 and 60 others, §§ 192-95, 14 June 2022)?
4. Has there been a violation of Article 18 of the Convention, taken in conjunction with Article 10 (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 163-76, 15 November 2018)?
ANNEX I: LIST OF CASES
No.
Application no.
Case name
Lodged on
Applicant/Applicant company
Profession/Function
Year of Birth/Registration
Place of Residence/Operation
Nationality/State of Incorporation
Represented by
1.
5411/20
OOO Komsomolskaya Pravda - Kaluga v. Russia
27/12/2019
OOO KOMSOMOLSKAYA PRAVDA – KALUGA
Founder of the “Kaluga Crossroads” regional newspaper and of the www.kp40.ru online media outlet
1995
Kaluga
Russia
Ms Galina Yuryevna ARAPOVA
2.
14662/21
Smirnov v. Russia
16/02/2021
Mr Sergey Sergeyevich SMIRNOV
Editor-in-chief of the MediaZona media outlet
1975
Moscow
Russian
Mr Aleksandr Dmitriyevich PEREDRUK
3.
16278/21
ZAO Redaktsyya ‘Nezavisimoy Gazety’ v. Russia
22/03/2021
ZAO REDAKTSYYA ‘NEZAVISIMOY GAZETY’
Editorial board of the Nezavisimaya Gazeta newspaper
1996
Moscow
Russia
Mr Aleksandr Aleksandrovich YAGELNITSKIY
4.
16896/21
Smirnov v. Russia
13/03/2021
Mr Sergey Sergeyevich SMIRNOV
Editor-in-chief of the MediaZona media outlet
1975
Moscow
Russian
Mr Grigoriy Sergeyevich CHERVONNYY
5.
22817/21
OOO ZP v. Russia
23/04/2021
OOO ZP
Editorial board of the MediaZona media outlet
2014
Moscow
Russia
Mr Damir
Ravilevich GAYNUTDINOV
6.
43551/21
The Independent Barentsobserver As v. Russia
12/08/2021
THE INDEPENDENT BARENTSOBSERVER AS
Media outlet
2015
Kirkenes
Norway (accredited before the Russian MFA)
Mr Maksim Vladimirovich OLENICHEV
7.
53086/21
Albats and OOO Novyye Vremena v. Russia
07/10/2021
Ms Yevgeniya Markovna ALBATS
Editor-in-chief of the New Times media outlet
1958
Moscow
Russian
OOO Novyye Vremena
Founder, editorial board, and publisher of the New Times
online media outlet
2013
Moscow
Russia
Mr Tumas Arsenovich MISAKYAN
8.
57924/21
Smirnov v. Russia
13/11/2021
Mr Sergey Sergeyevich SMIRNOV
Editor-in-chief of the MediaZona media outlet
1975
Moscow
Russian
Mr Damir
Ravilevich GAYNUTDINOV
9.
4045/22
Anin v. Russia
12/12/2021
Mr Roman Aleksandrovich ANIN
Journalist, editor-in-chief of the Vazhnyye Istorii media outlet
1986
Yaroslavl
Russian
Mr Tumas Arsenovich MISAKYAN
10.
11884/22
Novaya Gazeta and Others v. Russia
03/03/2022
ANO “Redaktsionno-Izdatelskiy Dom ‘NOVAYA GAZETA’”
Publisher of the Novaya Gazeta newspaper, the Novaya Rasskaz Gazeta online media outlet
1998
Russia
Mr Dmitriy Andreyevich MURATOV
Editor-in-chief of the Novaya Gazeta newspaper
1961
Moscow
Russian
OOO Telekanal Dozhd
Founder of the Dozhd television channel (TV Rain)
2008
Moscow
Russia
Ms Natalya Vladimirovna SINDEYEVA
Chief executive official of OOO Telekanal Dozhd
1971
Moscow
Russian
Mr Yaroslav Sergeyevich KOZHEUROV
11.
28925/22
Badanin and Others v. Russia
26/05/2022
Mr Roman Sergeyevich BADANIN
Journalist, editor-in-chief of the Proekt media outlet
1976
Moscow
Russian
Ms Mariya Viktorovna ZHOLOBOVA
Journalist
1988
Zvenigorod
Russian
Mr Mikhail Arkadyevich RUBIN
Journalist
1988
Moscow
Russian
Mr Tumas Arsenovich MISAKYAN
12.
53150/22
Azar v. Russia
28/10/2022
Mr Ilya Vilyamovich AZAR
Journalist
1984
Moscow
Russian
Mr Leonid Alekseyevich SOLOVYEV
ANNEX II: FACTS
Applications marked with a plus sign (+) contain, in addition to the main complaint under Article 10 of the Convention, complaints falling under the Court’s well-established case-law.
No.
Application
Subject-matter of the application
Domestic courts
Outcome of the domestic proceedings
1.
5411/20
OOO Komsomolskaya Pravda - Kaluga
On 18/05/2018 and 23/05/2018 two publications appeared in the applicant company’s media outlets decrying the felling of trees near a local school on the initiative of two members of the Russian State Duma, Mr K.S. and Mr S.P. who had wished to build a parking lot.
Mr K.S. and Mr S.P. brought civil proceedings for defamation claiming, in particular, 500,000 Russian roubles (RUB) each in compensation of non-pecuniary damage.
(i) 09/08/2018, Kaluzhskiy District Court of the Kaluga Region: the claimants’ claims dismissed in full owing to the lack of the tarnishing nature of the disseminated statements.
(ii) 12/11/2018, Kaluga Regional Court: the first-instance judgment quashed on appeal, a new judgment delivered finding for the claimants and awarding each of them RUB 20,000 in compensation of non-pecuniary damage.
(iii) 25/05/2019, a judge of the Kaluga Regional Court: the first cassation appeal rejected.
(iv) 27/06/2019, Supreme Court of Russia: the second cassation appeal rejected.
2.
14662/21+
Smirnov
On 20/01/2021 Mr Smirnov published on his Facebook page a photo of a Russian punk musician Mr D.S. accompanied by the words “Navalnyy’s Headquarters / D.S. for Navalnyy / 23 January [at] 2 a.m.” (the time of the then planned rally to support Mr Navalnyy).
Mr Smirnov never participated in the rally held on 23/01/2021.
At 1.40 p.m. on 30/01/2021 the applicant was arrested when leaving his block of flats with a minor son and charged with an administrative offence of the repeated organisation of an unauthorised public event (Art. 20.2 § 8 of the CAO). The police report read that “at 9.43 a.m. on 20/01/2021 [Mr Smirnov] [had] committed the organisation of a public event without lodging a [prior] notification”. Mr Smirnov was released from the police station at 9.50 p.m. on 30/01/2021.
At 5 a.m. on 04/02/2021 Mr Smirnov was placed in Sakharovo to serve his administrative-offence conviction.
(i) 03/02/2021, Tverskoy District Court of Moscow:
conviction under Art. 20.2 § 8 of the CAO, sentence of twenty‑five days of administrative detention in the then overcrowded Sakharovo temporary detention centre.
(ii) 08/02/2021, Moscow City Court: conviction upheld, sentence diminished to fifteen days of administrative arrest.
3.
16278/21
ZAO Redaktsiya Nezavisimoy Gazety
On 20/06/2019 an article “We shall compound. The truth about the ‘dirty’ oil” was published on the Nezavisimaya Gazeta website (www.ng.ru) describing Transneft’s practice of “compounding” crude oil products.
On 12/07/2019 Transneft brought civil proceedings against the applicant company “to protect its business reputation” claiming compensation of “non‑material (reputational) damage” in the amount of RUB 10,000,000.
The domestic courts found for Transneft and made an award in respect of “non‑material (reputational) damage” even though the Russian law contains no norms concerning such “non‑material (reputational) damage”.
(i) 11/11/2019, Commercial Court of Moscow: Transneft’s claims granted in part, ordered a retraction and awarded RUB 1,500,000 in compensation of “non‑material (reputational) damage.
(ii) 28/01/2020, Ninth Appellate Commercial Court: judgment of 11/11/2019 upheld on appeal in full.
(iii) 28/05/2020, Commercial Court of the Moscow Circuit: the first cassation appeal dismissed.
(iv) 24/09/2020, Supreme Court of Russia: the second cassation appeal dismissed.
4.
16896/21+
Smirnov
On 28/05/2020 a series of solo static demonstrations (“rotating solo demonstrations”) was held in Moscow and St Petersburg in support of Mr Ilya Azar, then recently arrested for his own solo static demonstration.
At 3.45 p.m. on that day Mr Smirnov placed himself next to the police headquarters in Moscow holding a placard that read “Azar stood here, bring him back!”. Three seconds later police officers apprehended Mr Smirnov.
At 4.30 p.m. on the same day he was brought to a police station and placed in a cage. He was released at 9.30 p.m. on 28/05/2020.
(i) 15/07/2020, Tverskoy District Court of Moscow:
conviction under Art. 20.2 § 5 of the CAO, administrative fine of RUB 15,000.
(ii) 14/09/2020, Moscow City Court: conviction and sentence upheld in full.
5.
22817/21
OOO ZP
On 13/12/2018 MediaZona published online an article covering suicide of Mr I.P. following his alleged torture by the police. The article read that the deceased had jumped off the roof and indicated the place of his fall. Roskomnadzor put the MediaZona website on its Unified Register of websites containing information prohibited for dissemination in Russia on account of promoting suicide; the applicant company was notified accordingly on 24/12/2018.
Following the Roskomnadzor decision, MediaZona removed from the article the details regarding the place and method of suicide, but the ban remained in place.
The applicant company lodged an administrative claim seeking to declare the Roskomnadzor’s decision illegal but to no avail.
(i) 16/04/2019, Taganskiy District Court of Moscow: the applicant company’s claims against Roskomnadzor dismissed in full.
(ii) 16/10/2019, Moscow City Court: the first-instance judgment upheld on appeal in full.
(iii) 24/01/2020, Second Cassation Appellate Court of General Jurisdiction: the first cassation appeal rejected.
(iv) 23/10/2020, Supreme Court of Russia: the second cassation appeal rejected.
6.
43551/21
The Independent Barentsobserver As
On 14/01/2019 the applicant company published online an article describing the life path of a gay man, including his attempted suicide.
On 29/01/2019 Roskomnadzor informed the applicant company that the webpage containing the article had been included in the Unified Register of websites containing information prohibited for dissemination in Russia and requested the applicant company to delete the article.
The applicant company did not comply with the Roskomnadzor notice.
On 18/02/2019 Roskomnadzor blocked access to the entire website in Russia.
The applicant company lodged an administrative claim seeking to declare the Roskomnadzor’s decision illegal but to no avail.
(i) 25/07/2019, Tverskoy District Court of Moscow: the applicant company’s claims against Roskomnadzor dismissed in full.
(ii) 22/01/2020, Moscow City Court: the first-instance judgment upheld on appeal in full.
(iii) 19/08/2020, Second Cassation Appellate Court of General Jurisdiction: the first cassation appeal rejected.
(iv) 12/02/2021, Supreme Court of Russia: the second cassation appeal rejected.
7.
53086/21
Albats and OOO Novyye Vremena
On 19/11/2020 an article by Mr Smirnov of MediaZona entitled “Sergey Smirnov on the latest pretext for the blocking of websites” was published on the New Times website (www.newtimes.ru). The article concerned the Russian authorities persecuting various groups, including the Jehovah’s Witnesses that had been declared “an extremist organisation”.
On 18/01/2021 Roskomnadzor drew up two administrative offence reports under Art. 13.15 § 2 of the CAO in respect of OOO Novyye Vremena and Ms Albats, respectively, on account of a reference to the Jehovah’s Witnesses without noting that it was an “extremist organisation”.
The applicants removed Mr Smirnov’s article from the website.
The domestic courts in two sets of administrative-offence proceedings found the applicants guilty under Art. 13.15 § 2 of the CAO and sentenced to fines.
1. OOO Novyye Vremena
(i) 19/02/2021, Justice of the Peace of Circuit No. 367 of the Tverskoy District of Moscow: a fine of RUB 40,000.
(ii) 08/04/2021, Tverskoy District Court: the first-instance judgment upheld on appeal.
2. Ms Albats
(i) 09/03/2021, Justice of the Peace of Circuit No. 367 of the Tverskoy District of Moscow: a fine of RUB 4,000.
(ii) 16/04/2021, Tverskoy District Court: the first-instance judgment upheld on appeal.
8.
57924/21+
Smirnov
On 11/01/2021 a journalist at MediaZona (www.zona.media) attended and reported online on a court hearing involving an alleged member of the Artpodgotovka movement that had been formally prohibited as “extremist” in the Russian Federation.
On 01/03/2021 Roskomnadzor drew up an administrative-offence report under Art. 13.15 § 2 of the CAO (abuse of the freedom of the media by disseminating the information concerning an “extremist” organisation) in respect of Mr Smirnov as the MediaZona editor-in-chief for failing to mention that Artpodgotovka’s activities were prohibited. The article was immediately corrected to insert the required mention.
(i) 01/04/2021, Justice of the Peace of Precinct no. 360 of the Basmannyy District of Moscow: conviction under 13.15 § 2 of the CAO, a fine of RUB 4,000.
(ii) 19/05/2021, Basmannyy District Court of Moscow: conviction and sentence upheld in full.
9.
4045/22+
Anin
In 2016 Mr Anin published in Novaya Gazeta an article about the then wife of Mr Igor Sechin, the CEO of Rosneft and was sued by the latter (for the details regarding the violation of Article 10 found in this respect, see Novaya Gazeta and Others v. Russia [Committee], nos. 83662/17 and 46808/20, 10 January 2023).
On 20/09/2016 a criminal investigation was opened into the alleged breach of Ms O.S.’s privacy. It was suspended in April 2017 and resumed in March 2021.
On 07/04/2021 a court search warrant was issued in respect of Mr Anin’s flat. On 09/04/2021 the search was conducted, and Mr Anin’s documents, laptops, smartphones, USB and hard drives were seized.
(i) 07/04/2021, Basmannyy District Court of Moscow: the search of Mr Anin’s flat authorised.
(ii) 21/06/2021, Moscow City Court: the applicant’s appeal against the search warrant dismissed.
10.
11884/22
Novaya Gazeta and Others v. Russia
1. Novaya Gazeta and Mr Muratov
Since 24/02/2022 the Russian authorities imposed on the applicant company a series of restrictive measures that effectively made it impossible for the applicant company to continue its publishing activities.
(a) Four articles published at www.novayagazeta.ru were blocked by Roskomnadzor on the basis of “demands” by the Prosecutor General’s Office of Russia.
(b) Three sets of administrative-offence proceedings under Art. 13.15 § 9 of the CAO (“disseminating fake information”), opened for using the word “war” in the Novaya Gazeta materials instead of the expression “special military operation”, resulted in fines ranging from RUB 300,000 to RUB 400,000.
(c) Two sets of administrative-offence proceedings under Art. 20.3.3 § 1 of the CAO (“discreditation of the Russian army”), each of which resulted in a fine of RUB 400,000.
(d) All access from the Russian territory to the three websites run by the applicant company (www.novaya.no, www.novayagazeta.ru, www.novaya.media) were blocked by Roskomnadzor under section 15.3(2) of the Information Act on the basis of a “demand” by the Prosecutor General’s Office of Russia.
(e) Licences of two print editions (Novaya Gazeta and Novaya Rasskaz Gazeta) and of the electronic media (www.novayagazeta.ru) were revoked on the basis of judgments delivered in the proceedings initiated by Roskomnadzor, all activities of the media terminated.
The applicants brought administrative proceedings challenging the restrictive measures but to no avail.
On 08/03/2022 the Court decided to indicate to the Government of the Russian Federation the following interim measure (Rule 39 of the Rules of Court): “to abstain until further notice from actions and decisions aimed at full blocking and termination of the activities of Novaya Gazeta, and from other actions that in the current circumstances could deprive Novaya Gazeta of the enjoyment of its rights guaranteed by Article 10 of the Convention”.
2. OOO Telekanal Dozhd and Ms Sindeyeva
(a) On 1 and 9 March 2022 the Prosecutor General’s Office of Russia sent to Roskomnadzor two “demands” under section 15.3 of the Information Act to restrict access to the Dozhd website (www.tvrain.ru) because of “false information regarding the nature of the special military operation”.
(b) On 3 March 2022 the Prosecutor General’s Office of Russia sent to the applicants two “warnings” regarding materials on the Dozhd Youtube channel containing “calls to extremist and terrorist activities”.
The applicants brought administrative proceedings challenging the “demands” and “warnings” but to no avail.
1. Novaya Gazeta and Mr Muratov
(a) four sets of administrative claims challenging the “demands” brought by the applicants rejected by a first-instance court, appeal proceedings are pending before the Moscow City Court.
(b) 06/07/2022, 10/08/2022, 14/09/2022, Simonovskiy District Court of Moscow: the defendants found guilty under Art. 13.15 § 9 of the CAO in the first instance and sentenced to fines in three sets of proceedings.
Appeal proceedings are pending before the Moscow City Court.
(c) 13/09/2022, 18/01/2023, Tverskoy District Court: the applicant company found guilty of an administrative offence on two counts.
Appeal proceedings will be launched as soon as the applicants are served with the texts of the two judgments in their entirety.
(d) 15/12/2022, Tverskoy District Court: the Prosecutor General’s Office’s “demand” declared lawful.
Appeal proceedings are pending before the Moscow City Court.
(e) 05/09/2022, 06/09/2022, Basmannyy District Court of Moscow: administrative claims by Roskomnadzor granted, licences revoked.
07/02/2023, Moscow City Court: the judgments of 05/09/2022 and 06/09/2022 upheld on appeal.
2. OOO Telekanal Dozhd and Ms Sindeyeva
(a) 23/05/2022, Tverskoy District Court of Moscow: the applicants’ claims dismissed in full. 09/02/2023, Moscow City Court: the first-instance judgment upheld on appeal.
18/07/2022, Tverskoy District Court of Moscow: the applicants’ claims dismissed in full. Appeal proceedings are pending before the Moscow City Court.
(b) 04/08/2022, Tverskoy District Court of Moscow: the applicants’ claims dismissed in full as the authorities’ actions were based on section 11 of the Extremism Act.
Appeal proceedings are pending before the Moscow City Court.
11.
28925/22+
Badanin and Others
In 2017 Mr Badanin, Ms Zholobova and Mr Rubin, then journalists at TV Rain (Dozhd) (www.tvrain.tv), filmed a documentary alleging close ties between President Putin and Mr T., a criminal, which TV Rain broadcast.
On 14/11/2017 a criminal investigation was opened against the three applicants under Art. 128.1 § 5 of the Criminal Code (aggravated libel). On 29/09/2020 the criminal case was closed owing to the statute of limitations. On 28/06/2021 the investigation was resumed.
On 29/06/2021 an investigator drew up orders to urgently search the flats of Mr Badanin and Ms
Zholobova, as well as two flats belonging to Mr Rubin. No judicial authorisation was sought on account of emergency. On the same date all four flats were searched, and the applicants’ documents, laptops, smartphones, USB and hard drives seized.
1. Mr Badanin
(i) 01/07/2021, Kuybyshevskiy District Court of St Petersburg: the investigator’s order to search the applicant’s flat declared lawful, Mr Badanin’s complaint dismissed (quashed on appeal on 08/09/2021);
04/10/2021, St Petersburg City Court: the investigator’s order declared lawful, the applicant’s complaints dismissed.
(ii) 14/12/2021, St Petersburg City Court: the decision of 04/10/2021 upheld.
2. Ms Zholobova
(i) 01/07/2021, Kuybyshevskiy District Court of St Petersburg: the investigator’s order to search Ms Zholobova’s flat declared lawful, the applicant’s complaints dismissed (quashed on appeal on 01/09/2021);
27/09/2021, Kuybyshevskiy District Court of St Petersburg: the investigator’s order declared lawful, the applicant’s complaints dismissed.
(ii) 14/12/2021, St Petersburg City Court: the decision of 27/09/2021 upheld.
3. Mr Rubin
(i) 01/07/2021, Kuybyshevskiy District Court of St Petersburg, two decisions: the investigator’s orders to search Mr Rubin’s two flats declared lawful, the applicant’s complaints dismissed (quashed on appeal on 27/08/2021 and 31/08/2021);
20/09/2021, St Petersburg City Court, two decisions: the investigator’s orders regarding the searches of two flats declared lawful, the applicant’s complaints dismissed.
(ii) 08/12/2021 and 14/12/2021, St Petersburg City Court: the two decisions of 20/09/2021 upheld.
12.
53150/22
Azar v. Russia
On 28/02/2022 Mr Azar published on his Facebook page a statement that read, in particular, as follows:
“The residential areas of Kharkiv were bombed today either by Grads [self‑propelled 122 mm multiple rocket launchers employed by the Russian military] or by something else, civilians have died. This madness must be stopped. ...”
On 07/04/2022 a prosecutor’s office drew up an administrative-offence report under Art. 20.3.3 § 2 of the CAO (“public actions aimed at discrediting the Russian army”) in respect of Mr Azar.
The domestic courts found Mr Azar guilty as charged and sentenced him to a fine.
(i) 10/06/2022, the Khamovnicheskiy District Court: a fine of RUB 60,000
(ii) 14/07/2022, Moscow City Court: the first-instance judgment upheld on appeal.