The decision of the ECHR of October 06, 2020 in the case "Karastelev and Others v. Russia" (Karastelev and Others v. Russia)" (aplications No. 16435/10).
In 2010, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to the Russian Federation.
aplications about the prosecutor's unlimited discretion in issuing warnings, warnings and resolutions in accordance with anti-extremist legislation, which did not provide proper foreseeability of consequences and appropriate guarantees, were successfully considered in the case. The case involved a violation of the requirements of article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The first two applicants were the deputy director and the director of a non-governmental organization, the applicant organization. They organized public protests against the Law of the Krasnodar Territory of July 21, 2008 No. 1539-KZ "On measures for the prevention of neglect and juvenile delinquency in the Krasnodar Territory", which the applicants considered too restrictive and unconstitutional. At one of these events, a poster with the inscription "Freedom is not given, freedom is taken" was publicly displayed. On another occasion, two minors approached the first two applicants and talked to them.
Referring to Federal Law No. 114-FZ of 25 July 2002 "On Countering extremist activities", the prosecutor's office issued two separate warnings to the first two applicants as representatives of a non-governmental organization. In addition, a warning was issued through the applicant to the applicant's non-governmental organization, stating that extremist actions could lead to the dissolution of the organization, and the resolution noted that the non-governmental organization and the applicant should "take measures to correct violations of the law and eliminate the causes and grounds for such violations". The legal basis for applying the above measures to the applicants was the qualification of their actions as potentially leading to" extremist activity " and consisting in hindering the legitimate actions of representatives of state authorities. The applicants unsuccessfully appealed against these acts.
Regarding compliance with article 10 of the Convention. (a) The nature and scope of the "intervention" and the status of the first two applicants. As for the written warnings, although the applicants were not found guilty of an administrative or criminal offense under the legislation of the Russian Federation, their behavior was considered illegal in a broader sense, as potentially giving rise to qualification as "extremist activity". The applicants were notified of the establishment of the above-mentioned fact of the illegality of the situation, and they were required to act in a certain way under the threat that the refusal could lead to liability for an administrative offense. In addition to the "interference" related to the applicants ' past behavior during the demonstration, the applicants also faced a dilemma: either to comply with the warning and thus refrain from further protests, or to refuse to follow the warning, and then they faced appropriate proceedings.
The warning and the resolution were addressed to the non-governmental organization through its director, the applicant. It was her expressive behavior during the demonstrations that caused the issuance of these documents. The applicant later resigned from her position in order to ensure the implementation of the appealed decision and to avoid the dissolution of the non-governmental organization. According to the legislation of the Russian Federation, the applicant had a status that allowed her to appeal the mentioned acts in the courts of the Russian Federation. Thus, although the applicant was not personally found guilty and did not face any punishment, the issuance of a warning and a decision by the prosecutor's office was an "interference" with the applicant's right to freedom of expression. Consequently, she had the right to file a complaint about a violation of article 10 of the Convention.
(b) Whether the interference was "prescribed by law". (i) Consideration of the case by the Prosecutor's Office. An important question was whether the applicants knew or could have known, acting in a certain way, with appropriate legal assistance, if necessary, that their actions could lead to the provisions of anti-extremist legislation being applied to them, since their expressive behavior posed a threat of committing "extremist actions" in the future, consisting in "obstructing the legitimate actions of public authorities". In particular, the term " obstruction "was used to characterize the type of" extremist activity "exclusively in situations of"violence or threat of violence". However, the interpretation and application of these concepts raises questions from the point of view of article 10 of the Convention.
The risk of committing a "crime" that can be prevented by using a warning must have been real and related to a specific crime of a certain degree of severity. It should be closely associated with a certain person or persons, namely, those (those) who are "planning" extremist activities that need to be prevented. In addition, it should be established that the risk was associated with the statements or behavior of the person against whom the warning was issued. There is no evidence that the legislation of the Russian Federation has been formulated accordingly. Although the use of the warning procedure cannot be compared with a full-fledged criminal investigation, it remains unclear whether the authorities of the Russian Federation have applied any specified and predictable criteria in order to draw a conclusion about obstructive actions from the applicants ' behavior.
In a broader sense, when assessing a particular example of "interference" with freedom of expression in such cases, various factors should be taken into account, including the context in which the contested statements were made, the nature of these statements and their text, the potential ability of these statements to lead to harmful consequences (such as obstructing the lawful actions of public authorities with the use of force), whether the statements were voiced in a tense political or social context, whether the statements, fairly interpreted and considered in a direct or broader context, it is considered a direct or indirect call to violence (or hatred, or intolerance). In addition, it is necessary to take into account the way in which statements are voiced, as well as the ability of statements, directly or indirectly, to lead to the aforementioned damaging consequences. The Court also reiterated that protests, including actions taking the form of physical obstruction of certain activities, may constitute an expression of opinion within the meaning of Article 10 of the Convention. It has not been proved that the prosecutors in the present case took into account the above elements when they decided to issue a warning in response to the exercise of a person's right to freedom of expression. The European Court was not provided with provisions that would guide the authorities of the Russian Federation in issuing warnings or warnings, as well as examples from domestic judicial practice.
At the same time, there were no clear criteria for distinguishing between "extremist activities", including calls for such activities that could be qualified as a criminal offense, and activities that did not constitute the specified crime, but could lead to a warning, as happened in the case of the applicants. Apparently, there are difficulties with distinguishing between a criminally punishable call to obstruct the actions of state authorities involving violence (threat of violence), a slogan of the same content that can become a reason for issuing a warning, and a slogan whose content will not entail any responsibility under the anti-extremist legislation of the Russian Federation. The current situation of uncertainty negatively affected the predictability of the consequences of the application of the relevant legislative norms, which could have a demotivating effect on the exercise of the right to freedom of expression, and gave the executive authorities too wide a margin of discretion. The legislation of the Russian Federation was formulated in general terms, giving the prosecutor's office excessive discretion and making the consequences of applying the law unpredictable.
In conclusion, the above-mentioned conclusions are also applicable to the procedure for issuing a warning and ruling. No explanation was provided as to the reasons for the application of these procedures in a situation where the actions complained of were directly related to the exercise of the right to freedom of expression by a person, and not to the activities of a non-governmental organization.
(ii) Judicial review. The legal remedies applied post factum, provided for by the legislation of the Russian Federation, did not guarantee protection from arbitrariness and the use of unlimited powers by non-judicial authorities. According to the applicable judicial review procedure, the courts of the Russian Federation had no right to assess the reasonableness of the actions of the authorities or decisions taken by them within their discretionary powers, and also could not apply the proportionality test in accordance with the standards of the Convention. The courts of the Russian Federation could not verify whether the applicable legislation of the Russian Federation provided adequate guarantees against arbitrariness.
(iii) The conduct of the applicants. It was not reasonable to draw a conclusion about the risk of violent obstructive actions against the authorities of the Russian Federation (or about any real threat of violence) from the applicants ' behavior. It has not been demonstrated that the applicants ' behavior could directly or indirectly lead to unrest, for example, in the form of public unrest that interferes with the work of State authorities. Also, the existence of a danger of committing a crime was not proven and was not associated with a specific person or persons.
As a result, the legislation of the Russian Federation and law enforcement practice did not allow to foresee the consequences of their application and did not provide adequate protection against the arbitrary use of warnings, warnings or rulings. The "interference" was not "provided for by law".
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
The Court also ruled unanimously that there had been a violation of Article 6, paragraph 1, of the Convention because the applicant had been denied access to the court in relation to a warning issued against him personally.
In the application of article 41 of the Convention. The European Court awarded the applicant 3,000 euros in compensation for non-pecuniary damage.