Communicated on 23 January 2017

THIRD SECTION

Application no. 4493/11 Vladimir Leonidovich ATAMANCHUK against Russia lodged on 18 January 2011

STATEMENT OF FACTS

The applicant, Mr Vladimir Leonidovich Atamanchuk , is a Russian national who was born in 1951 and lives in Sochi.

The facts of the case, as submitted by the applicant, may be summarised as follows.

At the material time, the applicant was leader of the local branch of the Democratic Party of Russia and founder of Sochi–Another opinion , a local newspaper with a circulation of 8,000. He also occasionally published articles in local newspapers, apparently as a freelancer. It is unclear whether he has a press card.

On 1 March 2008 Lazarevskaya Panorama , a local newspaper with a circulation of 10,000, published an article by the applicant headlined “Why I will not vote in these elections”, in which the applicant, in his role as a leader of the local Democratic Party branch, stated why he would abstain in the presidential election that was due on 2 March 2008.

The article was placed on the front page of the newspaper that had a headline in large type saying “Time to vote”. There were two sub-headings (“Yes!” and “No...”). The text was divided into two columns: the left side gave the statements of five people who were going to vote while the right side contained the applicant ’ s article.

The article reads as follows:

“We are going to have a presidential election soon. It is difficult to grasp the game between good and evil this time ... So, here is my decision.

First of all, I am not a puppet in the hands of political gangs who are making a farce out of the presidential election. They only need our participation in the election for the sake of giving it an impression of a legal process, one which will result in the dislocation of Russia. This might explain the sad results of government by the two recent rulers of the State. As a result, we have what we have: widespread corruption on a broad platform of lies created by the press under the control of the State and oligarchs. Platitudes, depravity, and aggressive propaganda in favour of violence flow out at us from our television screens ...

That is how it all goes. However, it is all depicted as the reconstruction of the State, the strengthening of the economy and the rule of law on the background of growing wealth for the People.

‘ Which people? ... Does it really matter? ’ , was the answer from the television screen, ‘ It would not be politically correct to give a specific answer to that, to avoid complaints ... ’ .

Secondly, in fifteen years of ‘ new style ’ democracy no Russian has seen anything good. He has been pushed down to the level of a simpleton who is to serve various small ethnic groupings that call themselves ‘ republics ’ , within Russia or elsewhere ... In the Russia destroyed by the Bolsheviks they were called ‘ non-Russians ’ or the ‘ non-Russian population ’ ... And no one took offence at the time. Everyone stayed within his own locality, doing his best to make it wealthy. No one was irritated by that.

So what happened? Where do we stand today?

Those who on account of their ethnic characteristics had engaged in criminal activities or tended their sheep or goats or prayed to their god abandoned their motherland and came here. They now call themselves builders, entrepreneurs, cultural workers or whatever is needed to get their hands into others ’ pockets.

Just look around and you will see crowds of them staring at you greedily at every corner ...

‘ We will be victorious over you all. We hold all these Kuban people, ’ they say in their own language during their closed meetings, while 99% of them speak no Russian.

But they will speak Russian later, when they have totally paralysed our will. That is when they will start to burn, slaughter, rape , rob and enslave, in line with their barbaric ideas, as it was in Chechnya.

But for the time being, it is all ‘ friendship and solidarity between nations ’ . For the time being that is. And the President of Russia is handing out Hero of Russia decorations to slave traffickers! ...

They participate in the destruction of the country ... Various processes of destruction dominate our society today. That is why I will not take part in the election ...”

The same article was reprinted in Sochi–Another opinion on 25 December 2009. The front page of the newspaper had an article about the prosecution of the applicant for the article, the text of which was given in small print at the bottom of the page.

It appears that both newspapers were distributed for free by being put into people ’ s letter boxes.

In November 2009 and January 2010 the applicant was accused of an offence under Article 282 of the Criminal Code in relation to those publications. The applicant was charged with committing actions aimed at inciting hatred and enmity, and at debasing the human dignity of a person or group of people on account of their ethnicity, language and religious beliefs.

The investigator in the case commissioned several expert reports from professionals in linguistics, psychology and philology (Mr F.).

Certain of the experts concluded that the article contained utterances disclosing a negative attitude toward a social group that had been singled out on the basis of its ethnicity, language and religion; those utterances could be perceived as inciting readers to feel hatred and enmity.

According to F. ’ s report, the article contained an implicit incitement to violent acts against people of a certain social group on account of their ethnicity, race, religion or other social characteristics.

The criminal case against the applicant was sent for trial before the Lazarevskiy District Court of Sochi.

The court examined the documentary evidence, including the experts ’ opinions, and heard several witnesses for the defence. The court dismissed an application by the applicant to summon F. for questioning in court about his report. Apparently, neither the prosecution nor the defence deemed it necessary to obtain oral submissions from the other experts whose reports had been admitted in evidence.

By a judgment of 19 July 2010, the District Court convicted the applicant as charged and sentenced him to a fine of 200,000 Russian roubles for each publication. [1] It also imposed an additional sentence by which it prohibited the applicant from exercising any journalistic or publishing activities for two years. Noting the expiry of the prosecution period in respect of the first article, the court ordered that the related sentences were not to be enforced as regards the first article.

Relying on the experts ’ opinions, the court considered that the article created hostility between people of Russian origin and other ethnicities (nationalities) by using expressions that were insulting and debasing. The article had indicated that the troubles of the Russian population lay in others ’ ethnic (national) characteristics, thus creating an image of the other ethnic groups present in Russia as being enemies.

The court also held as follows:

“The author made manifestly provocative statements when assessing the situation of the Russian people, thus inciting his readers of Russian origin to feel hatred towards other nationalities (ethnicities).

The author made a negative statement about various groups on account of their origin being unrelated to that of Russians ... Thereby, the author made intentional statements concerning the criminal propensities of certain groups, asserted that there was a plot by non-Russians against the population of the Kuban area (that is Russians living in the Krasnodar Region) ... He said non-Russians had plans to harm Russians, thus creating a negative image of non-Russians ... He described non-Russians as ignorant, rude, cruel or inhuman ... Those are conjectures that are aimed at instilling fear.”

The applicant appealed, stating, inter alia , that the trial court ’ s refusal to summon F. had undermined the defence ’ s rights.

On 8 September 2010 the Krasnodar Regional Court upheld the judgment. It made no findings relating to the lack of opportunity to put questions to F. during the trial.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he had no opportunity to question F. about his report, which was used in convicting the applicant.

The applicant complains under Article 10 of the Convention about his conviction under Article 282 of the Criminal Code.

QUESTIONS TO THE PARTIES

1. W as there a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the lack of opportunity to question F. (compare Matytsina v. Russia , no. 58428/10, §§ 1681-95, 27 March 2014) ? Was the applicant given an opportunity to effectively contest the expert evidence, in accordance with the principles of equality of arms and adversarial proceedings? Specifically, were sufficient procedural safeguards available to the applicant, counterbalancing his inability to examine the expert in open court?

2.1. Were the acts or omissions of the applicant in the present case aimed at the destruction of rights and freedoms to a greater extent than is provided for in the Convention, within the meaning of Article 17 (compare M ’Bala M ’ Bala v. France ( dec. ), no. 25239/13, 20 October 2015) ?

2.2. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s activities and social role relevant to his claim and the State ’ s margin of appreciation in this field?

[1] 5,086 euros at the material time