European Court of Human Rights

 

 

THIRD SECTION

CASE OF ASHIROV AND INTERNATIONAL MEMORIAL
v. RUSSIA

(Application no. 25246/07)

 

 

 

 

JUDGMENT

STRASBOURG

17 January 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Ashirov and International Memorial v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Georgios A. Serghides, President,
          Jolien Schukking,
          Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 25246/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 June 2007 by a Russian national, Mr Nafik (Nafigulla) Khudchatovich Ashirov (“the first applicant”), who was born in 1954 and lives in Moscow, and a Moscow-based Russian non-governmental organisation, International Historical Enlightenment Humanitarian and Human Rights Society “Memorial” (“International Memorial” or “the second applicant”) who were represented by lawyers of the European Human Rights Advocacy Centre in London;

the decision to give notice of the complaint of an alleged breach of the applicants’ right to freedom of expression to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;

the parties’ observations;

the decision to consider the admissibility and merits of the case together;

Having deliberated in private on 6 December 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns two warnings issued to an imam and to International Memorial in connection with a text criticising the authorities for banning an Islamic organisation and prosecuting its members.

2.  On 14 February 2003 the Supreme Court of Russia banned, in a closed hearing, fifteen organisations, including Hizb ut-Tahrir al-Islami (The Party of Islamic Liberation), as terrorist organisations (see, for details, Kasymakhunov and Saybatalov v. Russia, nos. 26261/05 and 26377/06, §§ 8‑10, 14 March 2013).

3.  On 16 May 2005 Mr Ashirov, acting as the chairman of the Religious Board of Muslims of the Asian part of Russia, prepared a specialist report on Hizb ut-Tahrir’s literature at the request of a non-governmental organisation representing several members of Hizb ut-Tahrir in criminal proceedings. The report stated that “the prosecution of Russian citizens on the sole basis of some statements about Hizb ut-Tahrir’s brochures and teachings was wrong and breached the right of Muslims to freedom of expression of religious beliefs. It was also wrong to characterise the religious beliefs of the followers of [Hizb ut-Tahrir] as extremist, let alone terrorist”.

4.  International Memorial published the report on its website.

5.  On 20 February 2006 a deputy Moscow City prosecutor issued a warning to Mr Ashirov advising him against the continuation of extremist activities under threat of potential criminal responsibility. The prosecutor considered that Mr Ashirov’s report “promoted the ideas of Hizb ut-Tahrir and provided a justification for its terrorist activities”.

6.  On 26 February 2006 a similar warning was addressed to the executive director of International Memorial. The prosecutor stated that International Memorial had published the materials of a banned terrorist organisation on its website and had thereby aided and abetted its terrorist activities. He ordered the executive director of International Memorial to remove Mr Ashirov’s report from the website within three days. International Memorial did that immediately.

7.  Both applicants applied for a judicial review of the warnings. By judgment of 29 September 2006, as upheld on appeal on 12 December 2006, the Zamoskvoretskiy District Court of Moscow found that the warnings had been lawful and justified.

THE COURT’S ASSESSMENT

I.         ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

8.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9.  The warning letters issued in reaction to a text which the first applicant had authored and the second applicant had published amounted to an interference with their right to freedom of expression (see Karastelev and Others v. Russia, no. 16435/10, §§ 70-74, 6 October 2020). The Court will proceed on the assumption that the interference was “prescribed by law”. It accepts that the measure taken against the applicants, at least on the face of it, pursued the legitimate aims of the protection of public order and national security.

10.  In its assessment of the necessity of the interference, the Court has to take into account the context in which the statements were made, their nature and wording, the manner in which they were disseminated, their potential to lead to harmful consequences and the reasons adduced by the national courts to justify the interference in question (see Perinçek v. Switzerland ([GC], no. 27510/08, §§ 204-208, ECHR 2015 (extracts)).

11.  The Court has accepted that the dissemination of Hizb ut-Tahrir’s ideology constitutes an activity falling within the scope of Article 17 of the Convention because Hizb ut-Tahrir’s aims are clearly contrary to the values of the Convention (see Kasymakhunov and Saybatalov, cited above, §§ 102‑14). However, Mr Ashirov was not a member of Hizb ut-Tahrir and his specialist report contained no quotes from Hizb ut‑Tahrir’s literature. As an imam and the chairman of a Muslim association - that is to say, someone presumed to possess extensive knowledge of Islam - he had been asked to give a specialist opinion on whether Hizb ut-Tahrir’s literature advocated an extremist version of Islam. After examining its brochures, he stated his opinion that they contained no extremist views or calls for violence, hatred or intolerance and that the prosecution of members of Hizb ut-Tahrir for distributing those brochures breached their right to freedom of religion.

12.  The report did not contain any direct or indirect calls for violence or a justification of violence, hatred or intolerance, let alone any calls to commit a terrorist offence, vindication or justification of terrorism. The report was not laudatory of Hizb ut-Tahrir, and criticising the domestic decision to ban an organisation or even describing that decision as unfounded does not equate to glorifying the organisation’s ideology or justifying the means it employs for achieving its aims. Nor can the specialist report produced in the context of ongoing criminal proceedings be considered a vehicle for the dissemination of Hizb ut‑Tahrir’s ideology, which would have removed it from the protection of Article 10 by virtue of Article 17 of the Convention. The Court considers that the mere fact of preparing, at the request of a non-governmental organisation, a specialist report on Hizb ut-Tahrir (see paragraph 3 above), without calling for violence to impose its ideology, cannot be regarded as “hate speech” (compare Faruk Temel v. Turkey, no. 16853/05, § 62, 1 February 2011).

13.  The issues of whether a religious organisation is to be banned as being terrorist or extremist and whether its followers should be criminally prosecuted are undoubtedly matters of public concern. It is relevant in this connection that the Supreme Court’s decision banning Hizb ut-Tahrir was taken in the absence of the public or representatives of the organisation. The decision banning Hizb ut‑Tahrir was never officially published (see Kasymakhunov and Saybatalov, cited above, § 91) and the public remained unaware of the reasons for the ban. When a non-governmental organisation draws attention to matters of public interest, it is exercising the role of a “public watchdog” similar to that of the press and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 86, 27 June 2017). The Court considers that by publishing Mr Ashirov’s report on its website and thereby drawing attention to a matter of public interest, International Memorial exercised the role of a public watchdog and the margin of appreciation to be accorded to the State in the present context was therefore a narrow one.

14.  The domestic courts did not advance any arguments capable of convincing the Court that the report could have harmed Russia’s national security and territorial integrity, given the political and social background against which it had been produced and the scope of its reach. The courts also did not specify which passages of the specialist report could be construed in their view as promoting the ideology of Hizb ut-Tahrir (compare Ibragim Ibragimov and Others v. Russia, nos. 1413/08 and 28621/11, § 107, 28 August 2018). Furthermore, they did not refer to any circumstances indicative of a sensitive background at the material time against which the impugned statements could risk unleashing violence, increasing a risk of terrorist acts or leading to similar harmful consequences (see the case-law in Perinçek, cited above, § 205). Nor did they examine the scope of the specialist opinion’s reach to the public, taking account of the readership of the website on which the report was published, in order to assess its potential impact on “national security” and “territorial integrity” (compare Savva Terentyev v. Russia, no. 10692/09, §§ 79-82, 28 August 2018). Lastly, the domestic courts did not consider in any way the effect of the warnings on the applicants’ rights under Article 10 of the Convention (see Perinçek, cited above, § 277).

15.  The foregoing considerations are sufficient for the Court to conclude that the warnings received by the applicants cannot be regarded as “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention.

II.      OTHER COMPLAINTS

16.  The Court has examined the other complaints submitted by the applicants and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicants asked the Court to determine the amount of the award in respect of non-pecuniary damage. They further claimed the equivalent of 4,785 euros (EUR) for legal fees and translation, postal and administrative expenses, to be paid to London Metropolitan University, where it would be held in trust for the European Human Rights Advocacy Centre.

18.  The Government submitted that no compensation should be awarded because there had been no violation, and that the applicants had employed too many legal representatives.

19.  The Court awards the applicants EUR 2,500 each in respect of non‑pecuniary damage and the amount claimed for costs and expenses, plus any tax that may be chargeable to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint about the alleged violation of the right to freedom of expression admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 10 of the Convention in respect of both applicants;

3.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,500 (two thousand five hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii) EUR 4,785 (four thousand seven hundred and eighty-five euros), plus any tax that may be chargeable, in respect of costs and expenses, payable to London Metropolitan University, to be held in trust for the European Human Rights Advocacy Centre;

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

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                           Georgios A. Serghides
          Deputy Registrar                                                      President