Communicated on 4 September 2017
THIRD SECTION
Application no. 33044/13
Sergey Aleksandrovich ORLOV against Russia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are:
(1)Mr Sergey Aleksandrovich Orlov, born in 1968;
(2)Mr Igor Vilsovich Kuchumov, born in 1968;
(3)Mr Nikolay Anatolyevich Shvetsov, born in 1951;
(4)Mr Ildar Makhmutovich Gabdrafikov, born in 1965, and
(5)Mr Konstantin Aleksandrovich Nesterov, born in 1986.
All the applicants are Russian nationals who live in Ufa, the Bashkortostan Republic.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 3 April 2007 the Ufa Gubernskaya website () published extracts from A. Dilmukhametov’s book “Warriors against bastards” («Воины против ублюдков»). The preface to the publication read as follows:
“The UfaGub editor’s office came into possession of a book by a renowned public activist Ayrat Dilmukhametov. It is quite unusual. We do not agree entirely with the author but we believe that the book may be of interest for our readers, given the scarcity of political information. Today we publish extracts from selected chapters.”
The extracts contained a strongly worded criticism of the seventeen-year uninterrupted rule of the Bashkir President Rakhimov, abundance of Soviet‑era monuments and street names and a perceived shortage of celebration of the Bashkir ethnic heritage.
On 8 May 2008 an investigator from the republican Investigations Committee open an inquiry under Articles 280 and 282 (extremist activities and calls for extremist actions) in connection with the publication.
On 5 June 2008 the Karmaskalinskiy District Court in Bashkortostan pronounced A. Dilmukhametov’s book to be extremist material. A copy of that judgment is not available to the Court.
The investigations into the operations of the website continued for more than a year. The applicants’ homes and workplaces were searched; some of them were remanded in custody and later released.
On 7 March 2010 the applicants were charged with conspiracy to establish an organised extremist group with intent to commit crimes of an extremist nature, engage in public actions inciting hatred and discord, undermine human dignity on account of the person’s ethnicity or language, and make calls for extremist actions and mass disorders. The alleged offences related to the set-up and operation of the Ufa Gubernskaya website. The applicants were committed to stand trial before the Leninskiy District Court in Ufa.
On 23 July 2012 the District Court found them guilty as charged. It held that Mr Shvetsov had been the leader of the extremist group, of which Mr Orlov, Mr Kuchumov and Mr Gabdrafikov had been members, while Mr Nesterov had provided technical assistance:
“Orlov ... was responsible for the purchase of the electronic components of the UfaGub website, its administration and uninterrupted operation, payment for third‑party services, publication of articles and comments, drafting publications; Kuchumov and Gabdrafikov [were responsible] for compilation and publication of articles and promotion of the UfaGub website; Nesterov [was responsible] for moderation of comments ... and for maintaining a stressful environment in the forum section by ensuring the prevalence of extremist comments ... In addition, the members of the extremist group Shvetsov, Orlov, Gabdrafikov, Nesterov and Kuchumov whipped up the emotionally charged ambience of anxiety, hysterical confrontation, and insecurity about the future by means of rendering impossible any dialogue on the pages of the website, replacing it with a burlesque imitation, unabashed removal and editing of undesirable comments” (pp.59-60 of the judgment).
They had set up the UfaGub website for publishing extremist materials and for spreading calls for extremist actions and mass disorders. The court determined the extremist nature of the publications and comments on the strength of the following evidence (pp. 8-13 of the judgment):
a) a linguistic study by an unnamed expert of A. Dilmukhametov’s book dated 17 November 2007 which found that the book contained a negative assessment of Russians, Orthodox believers, the Torah, and Bashkirs who did not share the author’s views, that it was hostile towards the public figures of contemporary Russia, that it provided a historic justification for the confrontation between Russians and Bashkirs and attributed the past, present and future ill-being of Bashkirs to poor policies of Russian authorities;
b) a certificate concerning a linguistic study of 5 October 2009, according to which the comments on an unspecified publication of 8 June 2009 “contain[ed] statements aiming at inciting hatred and discord and degrading the human dignity”;
c) two undated reports by professors of the contemporary Russian language department of the Bashkir State University who opined that “a part of the submitted materials” contained offensive and degrading views on other ethnic groups;
d) a report by an unnamed expert dated 16 January 2009 who found that unspecified comments used obscene language to describe Bashkirs, compared them to animals, alluded to the inferiority of their culture, or resorted to the words such as “Fascism” and “occupants”;
e) a report by an expert of unspecified affiliation dated 16 December 2009, according to which some statements gave a negative assessment of the Bashkir President Rakhimov;
f) an undated analytical report by the Humanitarian Studies Institute of the Bashkortostan Academy of Sciences finding as follows:
“Ideologically, the UfaGub project is imitational and destructive by its nature. Its destructive capacity is so powerful that all authorities of the Bashkortostan Republic should, and are compelled to, fight against it; to achieve their primitive political objectives, the project managers strike at the foundations of the superior civilizational order ... : the peoples’ friendship in Bashkiria, the centuries-old culture of interethnic communication, the immunity against marginalism and radicalism, the very identity of the Bashkir people, as it realises its right to self-determination within the Republic of Bashkortostan, and of the Russian people, which is the guarantor of stability of interethnic relations across Russia”.
The District Court referred to technical evidence showing that Mr Shvetsov had arranged for the publication of extracts from A. Dilmukhametov’s book together with Mr Orlov. Further technical evidence demonstrated that Mr Shvetsov had published over a hundred comments of unspecified contents from his office and home computers and that Mr Orlov had also published four such comments. Several witnesses described their indignation at the offensive comments, while other witnesses claimed that they had left comments which had been subsequently deleted or edited. The contents of those comments or the nature of edits were not specified.
The District Court sentenced Mr Shvetsov to four years’ imprisonment conditional on three years’ probation, Mr Orlov to two years’ imprisonment conditional on two years’ probation, Mr Kuchumov and Mr Gabdrafikov to two years’ imprisonment conditional on one year’s probation, and Mr Nesterov to one year’s imprisonment conditional on six months’ probation.
All the applicants lodged appeals which were dismissed on 30 October 2012 by the Supreme Court of the Bashkortostan Republic.
COMPLAINT
The applicants complain under Article 10 of the Convention about their conviction.
QUESTIONS TO THE PARTIES
Was there a violation of Article 10 of the Convention in connection with the applicants’ conviction? In particular,
a) Did the domestic courts adduce “relevant” and “sufficient” reasons for the interference?
b) Did they take into account the political context of the publications and the wider limits of permissible criticism with regard to politicians and governments?
c) Did they specify which parts of the publications or comments were problematic?
d) Did they draw their own conclusions from the linguistic studies of the publications and other evidence and attribute legal characterisation to them, as required by point 23 of the Supreme Court’s resolution no. 11 of 28 June 2011?
e) Did they consider the proportionality of the criminal sanction and the chilling effect that a custodial sentence would have on the freedom of expression?
APPENDIX
List of applications
1. 33044/13 Orlov v. Russia
2. 33801/13 Kuchumov and Others v. Russia
3. 34067/13 Nesterov v. Russia
Full & Egal Universal Law Academy