The ECHR judgment of October 3, 2017 in the case of Dmitriyevskiy v. Russia (application No. 42168/06).
In 2006, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to the Russian Federation.
The complaint successfully reviewed the complaint of the editor of the newspaper about the violation of his right to freedom of expression by condemning him for inciting hatred or enmity by publishing in the newspaper articles written by the leaders of the Chechen separatists. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant was the editor-in-chief of the regional newspaper. In 2004, the newspaper published two articles written, it was believed, by the two leaders of the Chechen separatists, who were wanted in the Russian Federation on charges of committing grave crimes. In the first article, the author called on the Chechens to choose peace and get rid of the president, voting against him in the current presidential election. In the second article, the author claimed that the Chechens were subjected to a constant genocide organized by the Kremlin. The applicant was charged with committing a crime under part two of article 282 of the Criminal Code of the Russian Federation (inciting hatred or enmity, as well as humiliation of human dignity). The applicant was subsequently convicted, since the expert linguist appointed by the court considering the case concluded that the authors of the articles sought to incite racial, national or social discord with the use of violence and the use of terrorist methods. The applicant was sentenced to two years' imprisonment on probation with a four-year probation period for the publication of articles.
In the conventional proceedings, the applicant complained of a violation of his right to freedom of expression guaranteed by Article 10 of the Convention.
ISSUES OF LAW
Concerning compliance with Article 10 of the Convention. The applicant's conviction constituted an interference with the exercise of his freedom of expression. The Court proceeded from the assumption that the interference could be considered as provided by law, and he is ready to recognize that it pursued the goal of protecting national security, territorial integrity and public order and preventing riots and crimes.
In order to determine whether the applicant's conviction under these articles was "necessary in a democratic society", the Court specifically took into account the applicant's status, the nature of the articles and their wording, the context in which they were published, and the approach taken by the courts of the Russian Federation to justify interference.
The applicant was the editor-in-chief of the regional newspaper, and in this capacity his task was to disseminate information and ideas on issues of common interest. Two articles, allegedly written by the two leaders of the Chechen separatists, concerned the government's policy in the region and were part of a political discussion on a matter of general interest in a broad sense. Although the Court is aware of the extremely sensitive nature of this discussion, he noted that the fact that the alleged authors of the articles were the leaders of the movement of Chechen separatists and were wanted in the Russian Federation on charges of committing a number of particularly serious crimes could not in itself justify interference in freedom the expression of the opinion of the person who published the articles.
The first article was written in a fairly neutral and even conciliatory tone and could not be interpreted as inciting hatred or intolerance on any grounds or, even more, as inciting violence, capable of provoking unrest or undermining national security, territorial integrity or public order. Although the second article was more rigid and contained harsh language, such as the expressions "genocide", "criminal madness of the bloody Kremlin regime", "Russian terror", "terrorist methods" and "excesses", an integral part of freedom of expression is the possibility of free searches for historical truth and discussion about the causes of acts of special gravity that can be equated with war crimes or crimes against humanity. In addition, political statements by their nature can be contradictory and abrupt.
In general, the opinions expressed in the articles can not be regarded as appeals to violence or the incitement of hatred or intolerance that can lead to violence. The articles contained nothing but criticism of the Russian government and its actions in the Chechen Republic. This criticism, although it could be sharp, did not go beyond an acceptable framework that was particularly broad in relation to the actions of the government.
As for the approach followed by the domestic courts, their decisions in the applicant's case had a number of shortcomings. First, the key legal conclusions regarding the presence in the controversial articles of elements of "hate speech" were made by a linguistic expert, and not by the courts themselves. This situation was unacceptable, since all questions of law should be resolved exclusively by the courts. Secondly, nothing in the decisions of the courts of the country did not confirm that they made any attempts to assess whether the controversial statements could threaten the national security, territorial integrity or security of the population or public order. Consequently, the authorities of the Russian Federation did not base their decision on an acceptable assessment of all relevant facts and did not give "relevant and sufficient" reasons for the applicant's conviction.
Finally, both the applicant's conviction and severe punishment applied to him could have a deterrent effect on the exercise by journalists of freedom of expression in the Russian Federation and reduce the determination of the press to openly discuss issues of general interest, in particular concerning the conflict in the Chechen Republic.
Thus, the authorities of the Russian Federation have exceeded the limits of the discretion granted to them in terms of restrictions on discussions on issues of general interest.
There has been a violation of Article 10 of the Convention (unanimously).
In the application of Article 41 of the Convention. The Court awarded EUR 10,000 in respect of non-pecuniary damage to the applicant.