Stomakhin v Russia, Application No. 52273/07
Court: European Court of Human Rights, Third Section
Judgment date: 9 May 2018
On 9 May 2018, the European Court of Human Rights (the ECtHR) found that the applicant’s right to freedom of expression under article 10 of the European Convention on Human Rights (European Convention) had been disproportionally infringed through his conviction and the sentence imposed by the Russian domestic courts.
The applicant was a journalist at a Lithuanian weekly publication and a civil activist. Further, in the period from 2000 until 2004, the applicant was the founder, owner, publisher and editor-in-chief of a monthly newsletter titled ‘Radical Politics’. He prepared each issue of the newsletter at his home on his personal computer, and then had it printed and reproduced. The applicant then distributed the newsletter in person or through other individuals by selling it or giving it out for free at various places in Moscow. The articles dealt largely with the events in the Chechen Republic.
On 23 February 2004, the applicant took part in an unauthorised meeting, where he displayed banners with slogans condemning the current political regime, such as: “Zakayev is not a terrorist, unlike Putin and Co”; “Europe! Do not betray the Chechen resistance!”; “Russian invaders – get out of Chechnya”; and “When will the Chechen people be freed and rehabilitated?”. He also displayed a flag with the words “Radical Party”. Thereafter, on 10 March 2004, while participating in a meeting in Moscow, the applicant disseminated issues of the Radical Politics newsletter and informed interested people about the forthcoming issues, how to subscribe and other ways to financially support the newsletter.
Criminal proceedings were instituted against the applicant on suspicion that the views expressed in the Radical Politics newsletter amounted to appeals to extremist activities and incitement to racial, national, social and other hatred. In particular, it was contended that the impugned texts contained negative emotional assessments of Russia’s servicemen, of people of Russian ethnicity, and of Orthodox believers. It was further contended that by criticising Russia’s actions in the Chechen Republic, the texts gave negative assessments of Russia as a state, of the existing political regime, and of Russia’s army as a part of the machinery of the State. In contrast, the impugned texts positively assessed and justified the actions and activities of a number of Chechen separatist leaders and fighters, including terrorist attacks and explosions within the territory of Russia.
The Butyrskiy District Court of Moscow found the applicant guilty of “having publicly appealed to extremist activities through the mass media” and of having committed “actions aimed at inciting hatred and enmity as well as at humiliating the dignity of an individual or group of individuals on the grounds of ethnicity, origin, attitude towards religion and membership of a social group, through the mass media”, in contravention of the Russian Criminal Code. The Moscow City Court upheld the applicant’s conviction on appeal. The applicant was sentenced to five years’ imprisonment and banned from practising journalism for three years, which he served in full.
Before the ECtHR, the applicant argued that his conviction for views expressed in his newsletter violated his right to freedom of expression under article 10 of the European Convention. The applicant also argued that his right to peaceful assembly under article 11 of the European Convention had been violated, but the ECtHR considered it appropriate to decide the case on the basis of article 10 alone.
The ECtHR accepted that the applicant’s conviction was in accordance with the law, and could be seen as having pursued the legitimate aims of protecting the rights of others and protecting national security, territorial integrity and public safety, and preventing disorder and crime. In considering whether the limitation of the applicant’s right to freedom of expression met the threshold of being necessary in a democratic society, the ECtHR divided the impugned statements into three groups:
- Statements that reveal an intention to romanticise and idealise the Chechen separatists’ cause, and stigmatise the other party to the conflict by representing it as evil: The ECtHR noted that the limits of permissible criticism are wider with regard to the government than in relation to a private individual or even a politician, and the mere fact that information and ideas offend, shock and disturb does not suffice to justify the interference with the right to freedom of expression. However, in the present case, the impugned statements went far beyond the acceptable limits of criticism and amounted to glorification of terrorism and deadly violence. The ECtHR held that in the light of the tenor of the phrases used, and with due regard to the sensitive context of the fight against terrorism and the counter-terrorist operation in the Chechen Republic, it was prepared to accept that the impugned statements incited hatred against the members of the federal armed and security forces, and exposed them to a possible risk of physical violence.
- Statements regarding the practices used by the Russian security forces: In relation to this group of statements, the ECtHR did not accept the domestic courts’ reasoning as being relevant and sufficient to justify the applicant’s conviction. It noted in this regard that: “[I]t is in the nature of political speech to be controversial and often virulent … and the fact that statements contain hard-hitting criticism of official policy and communicate a one-sided view of the origin of and responsibility for the situation addressed by them is insufficient, in itself, to justify an interference with freedom of expression”. The ECtHR held that the views expressed in the impugned statements could not be read as an incitement to or justification of violence, nor could they be construed as instigating hatred or intolerance.
- Statements regarding isolated cases of alleged abuses committed by certain ethnic Russians and Orthodox believers: The ECtHR noted that with regard to these statements, the applicant had used headings that had contained generalised negative statements representing these situations as typical and characteristic of all Russians and Orthodox believers, thereby inciting hatred and enmity against these groups of population. The ECtHR noted that it has consistently held that attacking or casting in a negative light an entire ethnic or religious group by, for instance, linking the group as a whole with a serious crime, is in contradiction with the underlying values of the European Convention. With regard to these statements, the ECtHR held that the domestic courts’ considerations were relevant and sufficient to justify the interference with the applicant’s right to freedom of expression. However, insofar as the domestic courts made broad findings that the applicant had “[abased] the national dignity of people practising [the Orthodox] religion” by using “insulting characteristics and negative emotional assessments of believers” and “discriminatory expressions in respect of the Orthodox denomination”, the ECtHR held that the domestic courts’ reasoning in this regard was deficient as they failed to refer to any particular texts. This, the ECtHR held, was not in conformity with article 10 of the European Convention.
In assessing the proportionality of the limitation, the ECtHR noted that “[t]he Court must exercise the utmost caution where the measures taken by the national authorities are such as to dissuade the applicants and other persons from imparting information or ideas contesting the established order of things”. The ECtHR was of the view that deprivation of liberty coupled with a ban on practising journalism, particularly for such a long period, for speech, even if criminal, must be regarded as an extremely harsh measure warranting very convincing considerations with due regard to the particular circumstances of the case. The ECtHR held that the considerations taken into account by the domestic courts were not sufficient to justify the penalty imposed on the applicant, and that it could not discern any reasons to conclude that the applicant’s sentence was rendered necessary by the particular circumstances of his case.
The ECtHR noted further that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference. In the applicant’s case, he was not a public, well-known or influential figure, and the statements were printed in a self-published newsletter with an insignificant circulation. Accordingly, the ECtHR held that the applicant’s punishment was not proportionate to the legitimate aims pursued. Accordingly, the ECtHR unanimously held that there had been a violation of the applicant’s right to freedom of expression under article 10 of the European Convention.
The full judgment is accessible here.
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