European Court of Human Rights

THIRD SECTION

CASE OF STOMAKHIN v. RUSSIA

(Application no. 52273/07)

JUDGMENT

STRASBOURG

9 May 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Stomakhin v. Russia,

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. At the material time the applicant was a journalist at a Lithuanian weekly publication.

7. He was also a civil activist. As was later established by the domestic courts, since approximately the summer of 1998 the applicant had identified himself as a member of an informal liberal democratic movement, Revolyutsionnoye Kontaktnoye Obyedineniye ("the Revolutionary Contact Union" - hereinafter "the RKO"). Also, in the period from 2000 until 2004 the applicant was the founder, owner, publisher and editor-in-chief of a monthly newsletter entitled Radikalnaya Politika ("Radical Politics"). He determined the contents of the newsletter and published his own articles in it, as well as articles by people with similar views and excerpts from official and non-official sources of information and the mass media. He, himself, prepared each issue of the newsletter at his home address by typing it up on his personal computer, and then had it printed out and reproduced in multiple copies. The exact number of copies of each issue is unknown. The applicant then distributed the newsletter in person or through other unidentified individuals by selling it or giving it out for free at various places in Moscow. The articles touched, to a great extent, on the events in the Chechen Republic.

A. Published issues of Radikalnaya Politika

1. Issue no. 1 (27) of January 2003

8. An article headlined "From the interview given by M. Udugov[1] to the Kavkaz Center press agency" ("Из интервью М. Удугова агенству Кавказ Центр") mentioned the large-scale hostage-taking at the Dubrovka Theatre in Moscow in October 2002[2] referring to it as "the action of Movsar Barayev's heroic Chechen rebels in Moscow" ("акция героических чеченских повстанцев Мовсара Бараева в Москве"). It stated, in particular:

"Russia has clearly demonstrated that it is at war and permanently in danger of being hit by retaliatory blows, because its rulers have perpetrated a despicable attack on a sovereign State and are killing innocent civilians there. Even the western community is compelled to admit that Putin's Russia is waging a war aimed at the physical extermination of Chechens as an ethnic group."

9. An article entitled "Insanity [defence] of Budanov[3] [is] a guarantee of victory for Basayev[4]" ("Невменяемость Буданова - залог победы Басаевa") commented on the case of a high-ranking Russian officer who was standing trial on charges of torture and murder for the strangulation of an 18-year-old Chechen woman and, in particular, on the judgment of the first-instance court by which the defendant had been found not guilty by reason of temporary insanity. The article, of which the applicant was one of the authors, stated, in particular:

"... The whole of Chechnya is filled now with the same Budanovs - maniacs, bloodthirsty sadists, murderers and degenerates in epaulettes. Russia's whole occupying army consists of those Budanovs."

10. It also stated that:

"... The fact that a [someone who posed a] danger [to] society, an insane maniac was in command of a regiment ... sets a new task before the revolutionary-democratic forces of Russia. From now on we should require immediate compulsory psychiatric examination of all commanders of the military and naval forces, service personnel of the Ministry of the Interior, the border guard, the police and the FSB, starting from a captain and finishing with the Commander-in-Chief - V.V.Putin."

11. It also appealed:

"Let dozens of Chechen snipers take up their positions in the hills and the city ruins and hundreds and thousands of aggressors perish from their holy bullets! No mercy! Death to the Russian invaders!"

12. An article headlined "Accomplices to the murderers of the Chechen people" ("О соучастниках убийства чеченского народа"), authored by a third person, commented on the hostage-taking at the Dubrovka Theatre in Moscow in October 2002 and contained the following paragraph:

"I, as a national of the Chechen Republic of Ichkeriya (CRI), who is daily suffering from the Russian State Terror, can understand the reasons which pushed Chechen patriots to this extraordinary act. It had been brought about by the continuing attacks by Russia on the Chechen State and [the Chechen] people. There are no documents condemning the mass murder of nationals of the CRI, to say nothing of Russia's aggression against the Chechen State ... Chechen patriots, reduced to a state of despair by Russia's Terror, were compelled to commit this guerrilla act in Moscow, the capital of Russia. In so doing they pursued their sole goal, namely to alert the international community to the total genocide of the Chechen people being cynically committed by the Russian invaders".

13. The same article mentioned the "national liberation struggle of the Chechen people against the colonial expansion of Russia".

14. In an article headlined "The Chechen resistance is alive! Maskhadov has visited Dzhokhar and Argun" expressions such as "President Maskhadov", "President of the CRI", "Commander-In-Chief of the CRI Maskhadov", "the capital of the CRI, Dzhokhar" were used.

15. In an article headlined "In memoriam, Salman Raduyev[5]" ("Памяти Салмана Радуева") the applicant wrote:

"Chechen heroes are leaving ... Dudayev, Atteriyev, Khattab and today - Raduyev. As if they would be devoured by a scary black noisome abyss. And the name of this abyss is Russia."

16. In the same article the applicant stated:

"... Salman Raduyev fought against Russia to his last breath, without making compromises with the murderers of his people. His life was an example of how one should fight against Russia. His death has become an example, amongst a million of such examples, of the immeasurable scoundrelism and perfidy of Russia, the pathological falsity and criminality of Russia as a State, as a civilisation, as a subject of history.

...

Salman Raduyev is the brightest page [in the history] of the heroic Chechen Resistance movement. He was a hero of an entire generation, not only in Chechnya, but also in Russia. His life and death are a guarantee that damned imperial Russia will be destroyed and the Chechens and all other peoples oppressed by it will finally obtain freedom. We will avenge you, Salman!"

17. In an article entitled "A new joke by Vova" ("Новая шутка Вовы") the applicant stated:

"Lawful convictions issued by the Sharia court of the CRI against national traitors are being executed rigorously."

18. In the same issue of the newsletter the applicant reproduced information from the website regions.ru regarding a police operation by a unit of the regional Department of the Interior aimed at setting free Uzbek nationals who had been held in slavery by Russian nationals. The applicant headlined that article with the words "Russians have slaves and dare to squawk something about Chechens" ("Русские держат рабов и еще смеют что-то вякать в адрес чеченцев").

19. In the same issue the applicant published an article headlined "Orthodox [believers] went completely nuts" ("Православные совсем охренели") in which information had been given about some unidentified "Orthodox theologians" who, in a booklet called "Foundations of the Orthodox Faith" had allegedly claimed that "Jesus Christ [had been] crucified not by Jews but by Chechens".

2. Issue no. 9 (35) of September 2003

20. In an article headlined "'Chechen syndrome' inside out" ("Чеченский синдром навыворот"), the applicant wrote:

"... Most importantly, we realised with our hearts and skin that Freedom is, indeed, the most precious thing that a man has, the most precious treasure, the only thing worth dying for. And if [an individual is] lucky[, he or she will] take with [him or her]self to the other world at least some enemies, as selfless Chechen women do when they put on their 'shaheed belts'. The life of a human is in any event brief and fragile and is only worth living if you are free. Otherwise it is better to die at once. As these Chechen women die."

21. He went on as follows:

"... In supporting Chechnya at war, demonstrating our solidarity with Basayev, openly supporting Movsar Barayev in Moscow on the days of the 'Nord-Ost' [theatre siege], we crossed a line, a certain border, past which all connections to our past and the environment and people among which we had been born and grown up and lived broke down; we had trustingly considered ourselves to be part of them, until we read on a foreign, enemy website, and saw with our own eyes, all the awful details of the atrocities committed by [our] people in a tiny neighbouring mountain country. Hence, the Rubicon has been crossed, the choice has been made and there is no room to back off - we no longer have any other family than all peoples oppressed by 'our' Empire, than partisans fighting to be freed from its yoke, than famous warlords like Basayev and political parties which claim monetary compensation [from Russia] for their occupation and return of the territories Russia has annexed ..."

22. In the same article the applicant stated:

"... It is the bloody cannibalistic atrocity of this State towards a tiny and helpless mountain people that first brought this thought into our conscience: Russia must be destroyed forever, a State doing similar things to an entire nation should not exist at all!"

23. An article headlined "Chechnya shielded the Caucasus" ("Чечня заслонила собою Кавказ"), authored by a third person, stated:

"... Maskhadov, Basayev, Khattab[6] and other heroes of the Chechen resistance courageously and firmly got in the way of Russia's aggression and, in fact, saved not only the independence of Chechnya but also its very existence, as well as the existence of other States in the Caucasus ..."

24. In an article entitled "No comments" the applicant stated:

"... Putin's cheap propaganda can jabber as long as it wishes that Maskhadov is a bandit and that he is responsible for the 'Nord-Ost' [theatre siege] and the recent explosions in Tushino[7]. Anyone who shows at least some interest in contemporary Chechnya knows that it is Maskhadov who is the legitimate President of Chechnya. And until he is re-elected in accordance with the constitution of the CRI, and not the Russian constitution, any other 'presidents of Chechnya' are out of the question. Lawful elections of the president of the CRI under the constitution of the CRI of 1992 will only be possible when the CRI army, headed by Commander-in-Chief Maskhadov, defeats occupying Russia's illegal armed groups of the Ministry of Defence, the Ministry of the Interior and the Federal Security Service, and chucks them out of the territory of independent Ichkeriya ..."

3. Issue no. 2 (40) of February-March 2004

25. In an article headlined "Retribution-2" ("Возмездие-2") the applicant stated:

"... Retribution for genocide will take place sooner or later. If we live up to it, we will be its witnesses and it would be good to become its punishing sword. Until then we are only capable of organising lamentably small candlelight vigils to commemorate all those killed and tortured in Chechnya, Ukraine, Lithuania and Poland - from the White (Baltic) to the Black Seas - by our State which has become frenzied because of blood. It is impossible to live with this heavy burden in the soul, as the terrible knowledge of Russia's history requires retribution from all those who remain conscious. It is possible that the hands which hold a commemoration candle today will hold a gun tomorrow - it is hard to believe that but Lord help us to live in the happy time when this happens. For the time being we don't have any other weapons, except for the alarm bell of our words.

... We remember and grieve for all those killed and tortured by 'our' Empire, hated by us. However, a better gift to all Chechens being exterminated will be not [to have] yet another meeting with candles to commemorate their genocide, but each blow struck - even though they are still weak, for now - against the criminal State which is killing them and depriving us of our freedom, mutilating our souls, striving to turn us into butchers and binding us with blood. 'Less words and more action' - this is the slogan of slogans of the day! Particularly given that there is much to be done for the radical anti-imperial opposition in the country!"

26. The article also read:

"... let Russia spit blood for yesterday's and today's genocide of the Chechen people - it serves it right, it deserved it. Let our commemoration candles at the meetings of 23 February turn into flaming torches, in whose purgatorial flames this rotten block, lying in the way of humankind, will burn!"

27. In the same article the applicant wrote:

"... As to the writing of inscriptions on the walls of buildings, fences and bus stops, one cannot overestimate the importance of those acts. From today on and until 14 [March 2004[8]] we have to strike persistently at one point: slaves, become free for at least a moment, do not participate in fake 'elections'! We need not campaign among the limited circle of revolutionaries, human-rights activists, extremists, and members of radical and marginal social groups - they already know everything. Each direct and open appeal to ... the people other than politicised consumers of ... TV cud [тележвачки] is an open and powerful blow to the regime and will hasten its end ..."

28. In the same article the applicant also issued the following call:

"... We have to accumulate, hate and keep record of their crimes - the endless list of all those 'sweep operations', 'identity checks', 'counter-terrorist operations', gagging laws, unlawful searches and politically motivated criminal prosecutions. It would also be good to make lists of all those who carried out a particular 'sweep operation' in a particular village, who instituted criminal proceedings, on whose information and on which date. It is known from the historical perspective that those people are most of all afraid of personal responsibility, which they would not be able to shift on to their commanders who had given illegal orders. One day executioners in uniforms and narks without uniforms in Moscow, as well as in Chechnya, will be held accountable to us for everything ..."

29. An article headlined "Kremlin looters" ("Кремлевские мародеры"), authored by a third person, criticised the actions of the Russian Army in the Chechen Republic and, in particular, accused them of a large-scale extra-�judicial executions of civilians during a "sweep" operation in a Chechen village in 1995. It also stated:

"In Chechnya the Russian Army stopped existing as a military force of the State, having, once and for all, turned itself into a frenzied gang of looters and murderers; a herd intoxicated with drugs."

30. In his "editorial note" to the "Declaration of the Committee '2008: a free choice'" the applicant stated:

"We, [the RKO] and Radikalnaya Politika, are united with the Committee and prepared to cooperate with them. Obviously, we are much more radical than them. We consider that we should not wait until 2008[9] and be worried about the Constitution but call on the people to overthrow and liquidate Putin's regime as soon as possible. We also don't consider it possible to preserve the contemporary Russian Federation as an integral State. However, we are for a common ground with all our allies, even those who are much more moderate."

4. Issue no. 3 (41) of March 2004

31. On the front page the following statement was published on behalf of the "editorial team":

"Zelimkhan Yandarbiyev[10] died a hero and he will remain [a hero] in the memory of humankind, historians and grateful future generations. He fought the bloody Rusnya[11] as long as he could".

32. In an article headlined "The price to be paid for genocide" ("Расплата за геноцид") the applicant wrote:

"The explosion in the Moscow metro[12] is justified, natural and lawful ... Chechens have a moral right to blow up everything they want in Russia, after what Russia and Russians have done to them; no objections regarding humanism or love for humankind can be accepted."

33. In the same article the applicant stated:

"It has been ten years since the Russian Federation and its people [began] a totally destructive genocidal war against the Chechen people, who before the war numbered only one million people".

34. In an article headlined "Will Russia be allowed to participate in the Summer Olympics in Athens?" ("Пустят ли Россию на летнюю олимпиаду в Афинах?") the applicant wrote:

"Russia's bloody attack on the CRI led to, among millions of other similar bloody consequences, Russia's security forces' killing of the ex-President of the CRI, Zelimkhan Yandarbiyev, who had helped his people to repel this attack."

5. Other articles

35. In eight issues of the Radikalnaya Politika newsletter, in a column entitled "The Good News" ("Благие вести"), the applicant published information which he had copied from various news agencies' websites, such as Interfax, or websites like strana.ru and KMNews.ru. The information mostly concerned events such as deaths of federal servicemen or law-enforcement officers in the Chechen Republic; violent attacks and assaults on public officials or police officers in various regions of Russia; and so forth.

B. The applicant's participation in public events

36. On 23 February 2004 the applicant took part at 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." (Закаев не террорист, в отличие от Путина и К), "Europe! Do not betray the Chechen resistance!" (Европа! Не предай Чеченское сопротивление!), "Russian invaders - get out of Chechnya" (Русские оккупанты - вон из Чечни!), "When will the Chechen people be freed and rehabilitated?" (Когда будет освобожден и реабилитирован чеченский народ?) and also a flag with the words "Radical Party".

37. On 10 March 2004, while participating in a meeting at Pushkin Square in Moscow, the applicant, personally and with the participation of an unidentified person, disseminated issues nos. 2 (40) and 3 (41) of the Radikalnaya Politika newsletter and informed people interested in it about the forthcoming issues, how to subscribe and other ways to financially support the newsletter, of which he was the editor-in-chief.

C. Criminal proceedings against the applicant

1. Pre-trial investigation

39. A psychological-linguistic expert examination of the texts published by the applicant was carried out. In a report of 13 April 2004 the expert stated, in particular, that the impugned texts contained negative emotional assessments of Russia's servicemen; of people of Russian ethnicity; and of Orthodox believers. The report further mentioned 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; of Russia's army as a part of the machinery of the State. The report also pointed out numerous expressly negative words and expressions used by the applicants when describing Russia. It also mentioned that the impugned texts positively assessed and justified the actions and activities of a number of Chechen separatist leaders and fighters; terrorist attacks, including explosions, within the territory of Russia.

2. Conviction of the applicant at the first level of jurisdiction

(a) Proceedings before the trial court

41. At the trial, the applicant pleaded not guilty. He confirmed that he had been the editor-in-chief and publisher of the Radikalnaya Politika newsletter but argued that he had printed the newsletter only for himself and had not distributed it. He further argued that he had merely expressed his opinion regarding various political events in Russia, and, in particular, his civic position regarding the ongoing armed conflict in the Chechen Republic. In his words, he had never called for extremist activities or violent overthrow of the existing political regime in Russia; he had only called for a change of the leadership in the country.

(b) Judgment of 20 November 2006

45. In a judgment of 20 November 2006 the District Court found the applicant guilty of "having publicly appealed to extremist activities through the mass media" (Article 280 § 2 of the Russian Criminal Code) 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" (Article 282 § 1 of the Russian Criminal Code).

46. The trial court established the circumstances of the case, as summarised in paragraphs 6-7 above, and referred to the texts mentioned in the expert report of 13 April 2004 (see paragraph 39 above). It considered that the impugned texts had had a clear extremist leaning and incited actions prohibited by the Suppression of Extremism Act (see paragraph 69 below). In particular, in those texts the applicant had called for extremist acts, such as a forcible overthrow of the constitutional order and the President of Russia; had called for a breach of the territorial integrity of Russia; had justified and glorified terrorist acts; had called for violence against the Russian people and abased their dignity; and had incited religious discord by arguing that the Orthodox faith had been inferior and by insulting its followers. In those texts the applicant had used insulting language in respect of Russia as a State, the political regime in the country, and servicemen of Russia's armed and security forces.

47. More specifically, the District Court observed that in various issues of his newsletter the applicant had represented the conflict in the Chechen Republic as a war between two States - Chechnya and Russia; had approved of terrorist attacks carried out in Russia, and of the actions of criminals and terrorists aimed at the extermination of the Russian people as a nation. In this respect, the District Court referred to the applicant's relevant texts in issue no. 1 (27) (see paragraph 16 above) and in issue no. 9 (35) (see paragraphs 21 and 23 above), stating that in those texts, while "mentioning a number of persons implicated in terrorist and extremist activities", the applicant had used words and expressions aimed at creating positive public opinion about those persons and their criminal acts.

48. The District Court also pointed out that "the texts of the applicant's articles contain[ed] positive assessment of the bombings in Russia perpetrated by Chechen terrorists as well as the acts of Chechen snipers from illegal armed groups who kill[ed] Russia's servicemen in Chechnya". In this respect, it quoted an extract from issue no. 1 (27) (see paragraph 11 above) and extracts from issue no. 3 (41) (see paragraphs 31-32 above).

49. The trial court went on to note that the applicant had qualified Russia's actions in the Chechen Republic as aggression and had considered the Russian Army to be an occupying force. Accordingly, he "[had] negatively assessed Russia's actions and those of Russia's armed forces; similarly negatively [the applicant had] assessed Russia as a State, the Russian Army as a part of the machinery of the State and Russia's servicemen as a social group". The District Court continued to state that, on the other hand, the applicant "[had] represented the events in the Chechen Republic as a war waged by Russia against the Chechen people (the Chechen ethnic group) and as genocide against the Chechen people". The court corroborated these findings with reference to relevant texts published in issue no. 1 (27) (see paragraphs 8 and 12 above) and in issue no. 3 (41) (see paragraphs 33 and 34 above).

50. The District Court also observed that the applicant had justified and positively assessed the acts of Chechen rebel fighters, and that he had regarded the Chechen Republic as an independent State with its own President (A. Maskhadov), capital (Dzhokhar), constitution, armed forces and Commander-in-Chief, courts (Sharia courts) and legislation. In particular, in issue no. 1 (27), the applicant had interpreted the events in the Chechen Republic as "a national liberation struggle of the Chechen people against the colonial expansion of Russia" (see paragraph 13 above), referred to "lawful convictions of the Sharia court of the CRI" (see paragraph 17 above), and mentioned "President Maskhadov", "President of the CRI", "Commander-In-Chief of the CRI Maskhadov", "the capital of the CRI, Dzhokhar" (see paragraph 14 above). Also, in issue no. 3 (41) the applicant published a "decree by President Maskhadov" and in the article "No comments" he praised "President Maskhadov" as "the legitimate President of Chechnya" (see paragraph 24 above).

51. The District Court further referred to the texts in eight issues of the applicant's newsletter published in the column entitled "Good news" (see paragraph 35 above). It pointed out that the applicant had represented bad events in a positive way, that is to say as actions approved by the authors and by the applicant himself and as an example to be followed. The court pointed out that another example to be followed, according to the applicant, had been actions of Chechen women putting on "shaheed belts"; in the latter respect, the court quoted a relevant extract from the article "'Chechen syndrome' inside out" (see paragraph 20 above).

52. The District Court went on to observe that "in all issues of his newsletter ... [the applicant had] wilfully made use of insulting characteristics, negative emotional assessments and attitudes towards ethnic, racial, national, religious and social groups". In particular, in respect of Russia as a State he had employed such negative emotional references as metaphors "scary noisome abyss", "bloody cannibalistic atrocity", "rotten block"; humiliating characteristics "immeasurable scoundrelism, perfidy, pathological falsity" and negative attitudes aimed at destruction (the metaphor "to spit blood"), which, according to the trial court, was a clear indication of an attitude aimed at inciting bloodshed. The court corroborated these findings with reference to relevant extracts from issue no. 1 (27) (see paragraph 15 above), issue no. 9 (35) (see paragraph 22 above) and issue no. 2 (40) (see paragraph 26 above).

53. The District Court also considered that in the article headlined "Insanity of Budanov, a guarantee of victory for Basayev", "the applicant [had] insult[ed ...] servicemen of the Russian Army and law-enforcement officers by launching an appeal to act criminally against them". In particular, the court stated that "in that article [the applicant gave] an emotional and negative description of the servicemen of the Russian Army as a social group" (see paragraph 9 above) and "[made] an appeal for actions against [army] servicemen ..., such as requiring an immediate compulsory psychiatric examination of its commanders" (see paragraph 10 above). In support of its relevant findings, the District Court also relied on an extract published in issue 2 (40) (see paragraph 29 above).

54. It went on to state that "by publishing and disseminating the Radikalnaya Politika newsletter [the applicant had] wilfully acted with a view to stirring up enmity and conflict, including armed conflict, on national, racial and religious grounds between citizens living in the European and Asian parts of the country and people living in the Caucasus". In this respect, the trial court referred to the applicant's "editorial note" published in issue no. 2 (40) (see paragraph 30 above), observing that in that publication the applicant had "demonstrated a negative attitude towards the existing political system and Russia as a State". The trial court pointed out that "the stance taken by [the applicant] concerning the liquidation of the existing State regime ("Putin's regime") presuppose[ed] not only actions in conformity with the constitution but also the possibility of deviating from it ("to overthrow the regime, without really caring about the Constitution")".

55. The court further noted that in the article "Retribution-2" the applicant had referred to "the following acts aimed against the State and the existing political regime in Russia: organisation of meetings concerning events in the Chechen Republic, participation in those meetings, writing inscriptions on the walls of buildings, fences and bus stops" with the contents reflected in the relevant extracts of that article (see paragraph 25 above). The court also stated that "the applicant [had] also suggested carrying out other unlawful acts against the State and the political regime in the texts of his newsletters but [had] failed to specify which".

56. The District Court then observed that in various issues of his newsletter the applicant had "intentionally appealed for records to be kept of such acts as 'sweep operations', 'identity checks', 'counter-terrorist operations', 'unlawful searches and politically motivated criminal prosecutions', which he [had] qualified as 'crimes' and the persons who [had] carried them out as 'executioners in uniforms' and 'narks without uniforms'". The court referred, in particular, to the applicant's appeal made in the relevant extract from the article "Retribution-2" (see paragraph 28 above).

57. The trial court went on to note that in the article "Orthodox [believers] went completely nuts" (see paragraph 19 above) the applicant had made use of a heading carrying a negative and emotional assessment of the followers of the Orthodox denomination ("went nuts"). However, in the court's words, "the content of the article [did] not correspond to its title, because it concern[ed] an isolated case (a statement that "Jesus Christ was crucified not by Jews but by Chechens", contained in a booklet called "Foundations of the Orthodox Faith"); this isolated case [was] generalised from and represented as a typical situation of Orthodox believers by virtue of using the impugned heading". In the same vein, the District Court pointed out that in issue no. 1 (27) the applicant had reproduced information concerning certain Uzbek nationals held in slavery by certain Russian citizens (see paragraph 18 above). The court noted that the applicant had entitled that article "Russians have slaves and dare squawk something about Chechens" and had represented an isolated fact to the readers as typical and characteristic of all Russians, whereby he had "made a negative and emotional assessment ('to squawk') in respect of Russian citizens as a nation".

58. Moreover, in issues nos. 1 (27) and 9 (35) the applicant had argued that "Orthodox people [православный народ] had been inferior by using insulting characteristics and negative emotional assessments of believers, discriminatory expressions in respect of the Orthodox denomination as a religion and stating that this religion, practised by Russians, should be abolished, thereby abasing the national dignity of the people practising [it]". According to the trial court, statements regarding the inferiority of the Orthodox faith had been made by the applicant in an attempt to stir up inter-�ethnic and racial conflicts in society so as to cause indignation in society and eventually to call for a change of the existing political regime. The court did not specify which particular articles in the above-mentioned issues contained those characteristics and assessments.

59. Lastly, the court referred to the fact that "at an unauthorised meeting on 23 February 2004 the applicant [had] called on individuals to support his movement by openly displaying banners with slogans condemning the regime" (see paragraph 36 above) and during the meeting of 10 March 2004, "to continue to commit crimes aimed at incitement to hatred and enmity among the population, abasement of dignity of an individual or group of individuals on the grounds of gender, nationality, language, origin or religious beliefs and membership of a social group, the applicant, personally and with a participation of an unidetified person, had distributed issues nos. 2 (40) and 3 (41) of the Radikalnaya Politika newsletter and had informed the persons interested in it about the forthcoming issues, how to subscribe and other ways to financially support the newsletter, of which he had been the editor-in-chief". In the trial court's view the applicant thus had called for extremist activities to be supported by way of their financing on a charitable basis.

60. The District Court rejected the applicant's argument that in the relevant articles he had made no appeals to extremist activities, and, in particular, that he had not called for the overthrow of the constitutional order nor stirred up inter-ethnic discord; and that he supported the constitutional order, the Russian Constitution and the Chechen people's right to self-determination and had merely availed himself of the right to freedom of expression. The trial court noted, with reference to the expert report of 13 April 2004, that the language used by the applicant in the impugned texts enabled the court to conclude that the applicant's actions had constituted criminal offences and that he had clearly abused his right to freedom of expression secured by the Russian Constitution.

61. The District Court furthermore dismissed the applicant's argument that he had been the author of only some of the articles held against him whereas the others had been written by other individuals. The court observed in this connection that the applicant had been the editor-in-chief of the newsletter and, in this capacity, had had the power to shape its editorial direction and he had been responsible for its content.

62. As regards the punishment to be imposed on the applicant, the District Court had regard to the state of his health and the fact that he had no criminal record, had positive references and had a dependant mother. At the same time it stressed the "high social danger" posed by the applicant's offences and his personality and sentenced him to five years' imprisonment. The court also prohibited the applicant from practising journalism for three years to run concurrently.

3. Appeal proceedings

63. The applicant appealed, referring, among other things, to Article 10 of the Convention and stating that as the editor-in-chief of the impugned newsletter he had expressed in it his personal views concerning political events in Russia and his attitude, as a citizen of that country, to the war in the Chechen Republic. He had not made any appeals for extremist activities and had not declared the superiority of any one religion over another. Nor had he called for the overthrow of the constitutional order, but he had expressed the view that the Government should be changed. The applicant further pointed out that the number of copies of the newsletter in question had been so miniscule that the statements published therein had presented no public danger. He also argued that the measure of punishment imposed on him was excessively severe, given, in particular, the fact that he had no criminal record and had positive references from the place where he lived.

64. On 23 May 2007 the Moscow City Court upheld the applicant's conviction on appeal. It stated, in particular, that the applicant's newsletter had been a mass medium despite the low number of copies produced. It also considered that the first-instance court had correctly established the facts and assessed the adduced evidence and that the punishment imposed on the applicant had been justified in the circumstances of the case.

II. RELEVANT DOMESTIC LAW

A. Constitution of Russia

"1. Freedom of thought and speech shall be guaranteed to everyone.

2. Propaganda or agitation inciting social, racial, national or religious hatred and enmity shall not be allowed. Propaganda of social, racial, national, religious or linguistic supremacy shall be prohibited.

3. Nobody can be forced to express [her or his] views and convictions or to renounce them.

4. Everyone shall have the right freely to seek, receive, transmit, produce and disseminate information by any lawful means. The list of [items of ] information which constitute State secrets shall be established by a federal law.

5. Freedom of mass communication shall be guaranteed. Censorship shall be prohibited."

B. Criminal Code

67. Article 280 § 2 of the Criminal Code of Russia ("the Criminal Code"), as in force at the relevant time, provided as follows:

"1. Public appeals for extremist activities shall be punishable by a fine of up to 300,000 Russian roubles [RUB], or an amount equivalent to the convicted person's wages or other income for a period of up to two years, or by an arrest for a period of four to six months, or by deprivation of liberty for a period of up to three years;

2. The same acts committed through the mass media shall be punishable by deprivation of liberty for a period of up to five years, accompanied by a withdrawal of the right to hold certain posts or carry out certain activities for a period of up to three years."

68. Article 282 of the Criminal Code, as in force at the relevant time, read as follows:

"1. Actions aimed at inciting hatred or enmity and humiliating the dignity of an individual or a group of individuals on the grounds of gender, race, ethnic origin, language, background, religious beliefs or membership of a social group, committed publicly or through the mass media, shall be punishable by a fine of RUB 100,000 to RUB 300,000, or an amount equivalent to the convicted person's wages or other income for a period of one to two years, by withdrawal of the right to hold certain posts or carry out certain activities for a period of up to three years, by compulsory labour of up to 180 hours or by correctional labour of up to one year, or by deprivation of liberty of up to two years ..."

C. Suppression of Extremism Act

69. Federal Law of 25 July 2002 no. 114-FZ on Suppression of Extremist Activities (Федеральный закон 25 июля 2002 г. № 114-ФЗ «О противодействии экстремистской деятельности, - hereinafter "the Suppression of Extremism Act"), as in force at the relevant time, provided as follows:

Section 1: Basic concepts

"For purposes of the present Federal Law the following basic concepts shall apply:

1. Extremist activity (extremism) is:

(a) activity of non-governmental, religious or other organisations, the media, editorial boards or individuals, consisting in planning, directing, preparing and committing acts aimed at:

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

-� undermining the national security of the Russian Federation;

...

-� carrying out of terrorist activities or public justification of terrorism;

-� inciting racial, ethnic, religious or social discord associated with violence or calls to violence;

-� humiliation of dignity on the grounds of ethnic origin;

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

-� propaganda of exceptionality, superiority or inferiority of citizens because of their attitude towards religion, social position, race, ethnic origin, religion or language;

...

-� creation and/or dissemination of printed, audio, audio-visual and other materials (works) designed for public use and containing at least one of the elements listed in this section;

...

(c) public appeals to carry out the above-mentioned activities as well as public appeals and addresses inciting [people] to carry out the above-mentioned activities, giving grounds or justifying the carrying-out of the above-mentioned acts;

(d) financing of the above-mentioned activities or other assistance in planning, organising, preparing and carrying out the above-mentioned acts, including by providing financial support ... or other facilities ..."

III. RELEVANT COUNCIL OF EUROPE INSTRUMENTS AND MATERIALS

A. Committee of Ministers Recommendation No. R (97) 20

Principle 5

"National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality."

B. General Policy Recommendation No. 15 of the European Commission against Racism and Intolerance

"The European Commission against Racism and Intolerance (ECRI):

...

Recommends that the governments of member States:

...

10. take appropriate and effective action against the use, in a public context, of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it through the use of the criminal law provided that no other, less restrictive, measure would be effective and the right to freedom of expression and opinion is respected, and accordingly:

a. ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied;

b. ensure that the scope of these offences is defined in a manner that permits their application to keep pace with technological developments;

c. ensure that prosecutions for these offences are brought on a non-discriminatory basis and are not used in order to suppress criticism of official policies, political opposition or religious beliefs;

d. ensure the effective participation of those targeted by hate speech in the relevant proceedings;

e. provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response;

f. monitor the effectiveness of the investigation of complaints and the prosecution of offenders with a view to enhancing both of these;

g. ensure effective co-operation/co-ordination between police and prosecution authorities..."

"16. ... the assessment as to whether or not there is a risk of the relevant acts occurring requires account to be taken of the specific circumstances in which the hate speech is used. In particular, there will be a need to consider (a) the context in which the hate speech concerned is being used (notably whether or not there are already serious tensions within society to which this hate speech is linked): (b) the capacity of the person using the hate speech to exercise influence over others (such as by virtue of being a political, religious or community leaders); (c) the nature and strength of the language used (such as whether it is provocative and direct, involves the use of misinformation, negative stereotyping and stigmatisation or otherwise capable of inciting acts of violence, intimidation, hostility or discrimination); (d) the context of the specific remarks (whether or not they are an isolated occurrence or are reaffirmed several times and whether or not they can be regarded as being counter-balanced either through others made by the same speaker or by someone else, especially in the course of a debate); (e) the medium used (whether or not it is capable of immediately bringing about a response from the audience such as at a "live" event); and (f) the nature of the audience (whether or not this had the means and inclination or susceptibility to engage in acts of violence, intimidation, hostility or discrimination)."

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

Article 10

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Article 11

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

A. Submissions by the parties

74. The applicant argued that the domestic authorities had arbitrarily expanded the list of charges on which he had been convicted by including in their number actions that had not constituted a criminal offence, such as his participation in peaceful demonstrations and meetings. He also contended that the severity of his sentence had rendered the interference with his relevant rights disproportionate. He pointed out that the circulation of his newsletter had only included copies which he had printed out himself and whose number had been negligible. Therefore, in the applicant's view, his actions had posed no danger to the public and should not have entailed such a severe punishment.

77. They further stressed that it had not been the applicant's membership of an unregistered and thus informal movement or his participation in two unauthorised meetings that had lain at the heart of his conviction, but rather the publication of inflammatory hateful statements in the newsletter as well as exhibiting posters with xenophobic texts at public events in which he had called other individuals to support his movement and to commit extremist actions, such as overthrow using force of the fundamentals of the constitutional order, a breach of Russia's territorial integrity, undermining national security and terrorist activities. The Government submitted that the applicant's actions had breached the domestic legislation aimed at protecting national security, territorial integrity and public order and concluded that his conviction had been "necessary in a democratic society", within the meaning of Articles 10 § 2 and 11 § 2 of the Convention, for the protection of "the interests of Russian nationals and the fundamentals of Russia's constitutional order".

B. The Court's assessment

1. Admissibility

2. Merits

(a) "Prescribed by law"

(b) "Legitimate aim"

(c) "Necessary in a democratic society"

88. The general principles for assessing whether an interference with the exercise of the right to freedom of expression has been "necessary in a democratic society" are well-settled in the Court's case-law and have been reiterated in a number of cases. The Court has stated, in particular, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to Article 10 § 2, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (see, among the recent authorities, Morice v. France [GC], no. 29369/10, § 124, ECHR 2015; Pentikäinen v. Finland [GC], no. 11882/10, § 87, ECHR 2015; Perinçek v. Switzerland [GC], no. 27510/08, § 196, ECHR 2015 (extracts); and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016).

89. Moreover, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Furthermore, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries (Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999-�IV).

(i) "Pressing social need"

96. The Court further takes into account that the impugned comments were made against the background of the difficult situation prevailing in the Chechen Republic at the time, where separatist tendencies in the region led to serious disturbances between Russia's federal armed and security forces and the Chechen rebel fighters and resulted in a heavy loss of life in that region as well as in deadly terrorist attacks in other regions of Russia. The Court has always been mindful of the difficulties linked to the prevention of public disorder and terrorism (see Karataş, cited above, § 51; Leroy, cited above, § 38; and Saygılı and Falakaoğlu v. Turkey (no. 2), no. 38991/02, § 25, 17 February 2009) and has acknowledged, in particular, that in situations of conflict and tension particular caution is called for on the part of the national authorities when consideration is being given to the publication of opinions which advocate recourse to violence against the State lest the media become a vehicle for the dissemination of hate speech and the promotion of violence (see, for instance, Erdoğdu, cited above, § 62). Yet, a fair balance should be struck between the individual's fundamental right to freedom of expression and a democratic society's legitimate right to protect itself against the activities of terrorist organisations (see Zana v. Turkey, 25 November 1997, § 55, Reports of Judgments and Decisions 1997-�VII, and Leroy, cited above, § 37).

(α) First group of statements

98. The first group comprises the extracts quoted in paragraphs 8, 9, 11-�17, 20-26, 29-32 and 35 above.

103. In so far as the applicant argued that, by publishing the impugned statements in his newsletter, he was merely expressing his critical views and civic position regarding the conflict in the Chechen Republic, the Court notes the following. Whilst the limits of permissible criticism are wider with regard to the government than in relation to a private individual or even a politician (see, among many other authorities, Ceylan, cited above, § 34; Sürek v. Turkey (no. 4) [GC], no. 24762/94, § 57, 8 July 1999; and Sürek and Özdemir v. Turkey [GC], nos. 23927/94 and 24277/94, § 60, 8 July 1999), and the mere fact that "information" and "ideas" offend, shock and disturb does not suffice to justify the interference with one's right to freedom of expression (see paragraph 88 above), the impugned statements went far beyond the acceptable limits of criticism and amounted to glorification of terrorism and deadly violence.

107. In the present case, however, the Court is unable to reach a conclusion that, albeit immoderate, the statements under examination remained within the limits of the acceptable criticism of the federal armed and security forces' actions in the Chechen Republic. In its view, just as the other statements in the group under examination, they seek to stigmatise and dehumanise the other party to the conflict. By generalising and labelling all the members of Russia's armed and security forces as "maniacs", "murderers" and otherwise criminally minded persons, the texts in question stir up a deep-seated and irrational hatred towards them in a clear attempt to justify and advocate violent actions against them (see paragraphs 11 and 35 above). In the light of the tenor of the phrases used, and with due regard to the sensitive context of the fight against terrorism and, in particular, the counter-terrorist operation in the Chechen Republic (see paragraph 96 above), the Court is prepared to accept that the impugned statements (see paragraphs 9 and 29 above) incited hatred against the members of the federal armed and security forces and exposed them to a possible risk of physical violence, and that, from this standpoint, the domestic courts' conclusion in that respect was based on "relevant and sufficient" considerations.

(β) Second group of statements

110. The second group includes extracts quoted in paragraphs 10, 27, 28, 33, 34 and 36 above.

(γ) Third group of statements

119. The last group encompasses texts quoted in paragraphs 18 and 19 above.

123. At the same time, in so far as the domestic courts considered - with a mere reference to unspecified texts in issues nos. 1 (27) and 9 (35) of the applicant's newsletter - that he "[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" (see paragraph 58 above), the Court finds this reasoning deficient. Indeed, when reaching this conclusion, the courts failed even to refer to any particular texts which, according to them, had had discriminatory or humiliating connotations, let alone to assess those texts in the light of the Court's relevant standards. Their assessment therefore was not in conformity with the principles embodied in Article 10 of the Convention.

(δ) Conclusion

124. The Court thus concludes that, in so far as the statements mentioned in paragraphs 98 and 119 above were concerned, the interference with the applicant's right to freedom of expression met a "pressing social need" for the protection of the rights of others, as well as national security, territorial integrity and public safety and for the prevention of disorder and crime. However, the need for the restriction was not convincingly demonstrated as regards the statements mentioned in paragraph 110 above, and also, in so far as the domestic courts referred to some unspecified texts in issues nos. 1 (27) and 9 (35) of the applicant's newsletter (see paragraph 123 above).

(ii) Proportionality

(iii) Conclusion

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the complaint under Article 10 of the Convention admissible and the remainder of the application inadmissible;

2. Holds, unanimously, that there has been a violation of Article 10 of the Convention;

3. Holds, by four votes to three,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-�pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses, by six votes to one, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 9 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

H.J.
J.S.P.

CONCURRING OPINION OF JUDGE JÄDERBLOM JOINED BY JUDGE KELLER

CONCURRING OPINION OF JUDGE KELLER

I. Introduction

II. Classification of statements

III. Misclassification of the statements

"Russia has clearly demonstrated that it is at war and permanently in danger of being hit by retaliatory blows, because its rulers have perpetrated a despicable attack on a sovereign State and are killing innocent civilians there. Even the western community is compelled to admit that Putin's Russia is waging a war aimed at the physical extermination of Chechens as an ethnic group."

IV. The impact of the applicant's expressions

V. Ban on journalism

VI. Conclusion

PARTLY DISSENTING OPINION OF JUDGE PASTOR VILANOVA

(Translation)

1. I fully endorse the Court's finding of a violation of Article 10 in this case. I also agree with the fact of awarding the applicant the sum of EUR 12,500 in respect of non-pecuniary damage and making no award in respect of pecuniary damage. In contrast, I voted against point 4 of the judgment's operative provisions, in which, inter alia, reimbursement of the fees incurred in respect of the applicant's lawyer was refused.

2. For reference, the applicant's representative stated in his claim for just satisfaction that the applicant had not paid the costs incurred as he did not have the financial means to do so. The sum of EUR 3,000 was claimed under this head.

3. The Government opposed the claim, alleging that there was no evidence of payment of these expenses.

4. The Court accepted the Government's claims and dismissed, by a very large majority, the claim in respect of professional fees. In the majority's view, this claim was not payable, having regard to the information provided by the applicant (see paragraph 142 of the judgment).