Communicated on 29 September 2016

THIRD SECTION

Application no. 33938/08 Nikolay Stepanovich ANDRUSHCHENKO against Russia lodged on 6 May 2008

STATEMENT OF FACTS

The applicant, Mr Nikolay Stepanovich Andrushchenko, is a Russian national who was born in 1943 and lives in St Petersburg. He is represented before the Court by Mr K. Kuzminykh, a lawyer practising in St Petersburg.

A. The circumstances of the case

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

1. Background information

The applicant was a member of the editorial board of New Petersburg , a local newspaper for which he wrote various articles. Between April and July 2006 he wrote four articles concerning the trial of a group of four people accused of murdering a foreign national in a racist attack.

On 3 March 2007 the newspaper published the applicant ’ s article “Bloody Saturday of 3 March 2007”.

On 10 September 2007 the chief of the Organised Crime Unit of the St Petersburg Department of the Interior sought judicial authorisation to intercept the applicant ’ s telephone conversations. The City Court authorised the interception for 180 days.

Between 16 and 19 November 2007 the newspaper also published several other articles written by the applicant about allegations of corruption in respect of senior officials. All the copies of the relevant editions were allegedly bought by people who were police officers.

2. Criminal proceedings against the applicant and his arrest and detention

On 22 November 2007 a criminal investigation was opened against the applicant under Articles 294 (obstruction of a criminal investigation and justice) and 298 (defamation of a judge/juror/prosecutor involving accusations of a serious or particularly serious criminal offence) of the Criminal Code. It was considered that the articles in 2006 had interfered with the course of justice in that they could have influenced jurors sitting on the then pending trial. It was also noted that in June 2007 the applicant had written another article suggesting that he had known some of the jurors, had provided them with information and had managed to obtain a recording of their deliberations. He had also allegedly made death threats to the jurors since the article was entitled “Time to buy firearms ...” and contained a promise to punish those responsible for “neglecting the presumption of innocence and kill[ing] the four Russian boys ’ faith in justice”. In the investigator ’ s view, the above disclosed offences under Articles 294 and 298 of the Criminal Code. Lastly, the article contained defamatory statements against the judge presiding at that trial, the public prosecutor M. and others, accusing them of (assisting in) rendering a premediated unlawful judgment.

On the same date another investigator initiated criminal proceedings against the applicant under Article 129 of the Criminal Code.

On 22 and 23 November 2007 officers of the Organised Crime Unit allegedly blocked publication of the new edition, including one of the applicant ’ s articles.

On 23 November 2007 the applicant was arrested. A search was carried out of his flat, from which his computer and a number of CDs were seized. He was taken to the city prosecutor ’ s office. He had a hypertensive crisis and was taken to hospital. Convoy officers then took him to a temporary detention centre.

On 24 November 2007 the applicant was taken to the Dzerzhinskiy District Court of St Petersburg. He fainted during the detention hearing, so paramedics were called and gave an injection to him.

On the same date the District Court upheld the applicant ’ s arrest and authorised his detention pending the investigation under Articles 294 and 298 of the Criminal Code (pre-trial detention being permitted in respect of offences punishable by at least two years ’ imprisonment). The court provided the following reasons.

(i) It was satisfied that the arrest was justified and the available material confirmed that the applicant might be implicated in the offences for which a criminal investigation had been opened and of which he was suspected.

(ii) While the offences under Articles 294 and 298 of the Code were punishable by up to two years ’ imprisonment and a longer prison term respectively, the seriousness of the charges disclosed that they were more dangerous.

(iii) There was a risk that, if at large, the suspect would continue his criminal activities and, what was an aggravating element, via the mass media outlets to which he had access. He might also obstruct the investigation by threatening “participants to the proceedings” and impeding the collection of evidence or by fleeing justice.

(iv) The material placed before the court was insufficient for the allegation that the suspect ’ s state of health would be incompatible with detention in a remand centre as it would, in any event, have facilities for providing medical care.

On an unspecified date the activity of the applicant ’ s newspaper and its editorial board were suspended. The applicant was apparently no longer employed there.

On 30 November 2007 the investigator ordered that the applicant undergo an inpatient psychiatric examination, which lasted until February 2008. No investigative measures were allegedly carried out during that period.

In February 2008 further charges were brought against the applicant under Article 319 of the Criminal Code.

In March 2008 he was accused of committing an offence under Article 280 of the Criminal Code (public appeals to engage in extremist activity).

His subsequent detention was extended in relation to the charges pending under Articles 294, 298 and 280 of the Criminal Code.

In April 2008 additional charges were added under Article 319 of the Criminal Code in relation to some of the articles and Article 294. The charges under Article 298 were reclassified under Article 319 (as regards insult against prosecutor M.).

In May 2008 the case against the applicant on the charges under Articles 129, 280 and 319 of the Criminal Code was submitted to the District Court for trial.

On 20 May 2008 the District Court dismissed the prosecutor ’ s request to extend the applicant ’ s detention and ordered his release. He was ordered not to leave his area of residence. The court referred to the following factors.

(i) Following the reclassification of the specific charges, the relevant statutory offences were regarded as “minor” or “moderately serious” according to the domestic legal classification.

(ii) Since the activity of the newspaper and its editorial board had been suspended and the defendant was no longer employed there, there was no longer a risk of him continuing any criminal activities.

(iii) The investigation had been completed and the prosecution ’ s evidence had been collected and submitted to the court. There was therefore no longer a risk of the applicant obstructing justice by threatening participants to the case or destroying evidence or obstructing its collection.

(iv) The applicant ’ s advanced age and state of health, namely the presence of serious chronic diseases that pose a direct threat to his life and the need for him to undergo regular skilled medical care, which was “not doubted by the court”.

On 22 June 2009 the District Court convicted the applicant under Articles 282 and 319 of the Criminal Code.

As regards the article “Bloody Saturday of 3 March 2007”, t he trial court reclassified the charges under Article 280 to (the arguably, less stringent) Article 282 of the Criminal Code, which concerned acts aimed at inciting hatred or enmity or abasement of dignity of members of a “social group”, namely law enforcement officers, through the use of the mass media. It convicted the applicant, stating:

“The expert report indicates that the writer of the article takes a particularly aggressive and critical stance towards the Russian State, law enforcement authorities in relation to the [opposition march] held on 3 March 2007. The writer used phrases like ‘ Russian State fascism ’ or ‘ police regime ’ to describe the Russian political system ... which implies that elements of fascism or police regime, including violence and arbitrariness, are inherent in the political system in Russia.

The writer used words relating to the theme of fascism in relation to the law enforcement authorities or Federal Security Service (FSB), for instance:

‘ There were numerous FSB “dogs” among the cops and Special Squad men in black fascist uniforms [also called by the writer “ subhumans in black”] ...

... Cops behave arrogantly, like occupiers, pretending to be some kind of power showing its manifest contempt to Leningrad ...

... a driver in black sits in his car and grins. Here he is the INVADER of Leningrad!

INVADERS IN FASCIST UNIFORMS ... as one FASCIST ... A bunch of BLACK OCCUPIERS ... OCCUPIERS IN BLACK ... ’

The defendant made belittling and negative emotional assessments and [adopted] a negative stance toward members of the social group that includes law enforcement officers. He used words and expressions relating to the theme of Nazism. The article contains information that is defamatory towards the social group in question; the use of indecent wording that disparages the professional activity of law enforcement officers, diminishes their reputation and incites an opinion about this social group, which nevertheless has an important function in society ...”

As regards the charge under Article 319 of the Criminal Code, the applicant was convicted of insulting two unit senior officials from the St Petersburg prosecutor ’ s office, Ms S. and Mr Sh., in connection with their official duties. Unsatisfied with their replies to his requests, in August 2007 he wrote the article “Dear kids, avoid Africa!”. [1]

The following passages were used against him in court:

(i) “Today in Russia it makes NO SENSE to lodge complaints with the prosecutors ’ offices. In my view, like the other public authorities in modern Russia, they serve the modern State fascism that arose from the dirt left by the Russian fascists who gunned down the White House in October 1993 ...”;

(ii) “Look at the fascist Germany of 1933-45. Who would hear the appeals of those who saw the grimace of fascism? No one! Until 1945! Until Nuremberg! We live the same in St Petersburg. The above-quoted extracts from the replies of the Prosecutor ’ s Office PROVE that it makes no sense to complain there! Dear kids, avoid Africa!”;

(iii) “Different officials give the same type of reply: there is always a substitution of concepts and a monstrous, Goebbels-type, LIE to cover the most dangerous, most cynical and hypocritical violators of law of the St Petersburg bureaucrats. The dead Goebbels or even Satan has contributed to the prosecutors ’ doings.”;

(iv) “Here are some extracts from the letters that most evidently show the immorality of their authors ... ”;

(v) “So what do these lying and indecent officials write back to me? Here is a quote from Ms S. ... Glory in LIES! Glory in INDECENCY!”;

(vi) “This goes beyond lies and indecency: I guess this quote from Mr Sh. may be explained by the complete insanity of its author!”.

The trial court sentenced the applicant to a one-year suspended sentence of imprisonment in relation to the charge under Article 282, and to a fine of 20,000 roubles (RUB – 460 euros (EUR) at the time) in relation to the charge under Article 319. The prison term was deemed served because of the expiry of the relevant statutory time limits for prosecution.

Lastly, the trial court acquitted the applicant in relation to certain other articles and related offences under Article 129, 280 and 319 of the Criminal Code. One such charge concerned insult against prosecutor M.

The court acquitted the applicant in relation to the following phrases or sentences:

“Instead of resigning, M. SHAMEFULLY disseminated false information at the court steps about ‘ multiple violations on the part of the defence ’ that he himself had invented ...”

“M. [and some other officials] MUST acknowledge the lack of professionalism on the part of [the investigator] [some other officials] who once again disgraced the prosecution service by pouring into the town court another dishonest and unsubstantiated product of their activity ... ”

“The jurors thus assessed this ‘ prosecution product ’ as something rotten, in breach of the Constitution, Criminal Procedure Code and the presumption of innocence ... ”

“... I and other human-rights defenders, which I am, did not hear the words ‘ Presumption of Innocence ’ from judges or prosecutors: not even once! Public prosecutor M. [and some other officials] have no idea about this international principle either!”

“If they knew, comrade prosecutor M. would not jot down the shameful and unsubstantiated statement of appeal no. 12-238-06 of 4 August 2006, which is insulting for the jurors and the community of the town. This is, in my firm opinion, a deliberately false accusation which left the town prosecutor ’ s office with the approval of his superiors as a direct interference by the executive, through its Madame Governor, into the functioning of the judiciary ... ”

“Comrade M. ’ s appeal leaves a sour impression with lawyers and townspeople. One cannot miss the total lack of substantiation of his arguments ... ”

“... the judge and prosecutor made major premeditated efforts to deprive the jurors of the constitutional right to information about the defendants and case file material ...”

“Despite his rank of captain, the prosecutor has no clue about the principle of adversarial procedure! How come, dear comrade M., you failed to convince the jury of the guilt of our Russian boys? What did you miss: legal training or general culture or, in my view, facts suggesting guilt?”

“The prosecutor had no legal basis for interrupting the defendants who used normal language? Who does he think he is to deprive them of their constitutional right to defence? ...”

The applicant appealed to the City Court, arguing:

(i) that his negative assessment of the political regime and work of the public authorities fell outside the scope of Article 282 of the Criminal Code since it was unjustified to apply the classification of a “social group” in the circumstances of the case; and

(ii) that his critical assessment of the work done by officials of the prosecutor ’ s office had not impinged upon their personal lives and had only been related to their official duties. It thus fell outside the scope of Article 319 of the Criminal Code.

On 20 October 2009 the City Court held that because of the expiry of the statutory time limit for prosecution, the fine of RUB 20,000 would also be deemed “served”. The court upheld the remainder of the trial judgment.

3. Conditions of detention

From 23 to 26 November 2007 the applicant was held in a temporary detention centre. The temperature in his cell was around 0 o C, but he was given no mattress, blanket or warm clothes. He remained in the cell for most of the three days. It appears that his next of kin and friends tried to provide him with clothing and medication but the investigator in charge of the case stopped him from receiving them.

On 26 November 2007 the applicant was transferred to detention centre no. 47/4 and placed in cell no. 80 which had fifteen beds for twenty-seven detainees. From 29 November to 4 December 2007 he was kept in a dark “punishment cell” in a humid basement.

The bedding was bug-infested and was only washed once during five months. The drinking water came from the general drainage system, without any filtering. It had a heavy metallic taste and contained chemicals that were dangerous for one ’ s health.

According to the applicant, after his arrest and ensuing detention he did not receive adequate medication for his illnesses, which included advanced hypertension, bronchial asthma and ischemic heart disease.

4. Other allegations

On 25 November 2007 several officers at the temporary detention centre allegedly hit the applicant in the kidneys. As a result, he had blood in his urine for several days.

B. Relevant domestic law and practice

1. Suppression of Extremism Act

Prior to August 2006 section 1 of the Suppression of Extremism Act (Federal Law no. 114-FZ on Combatting Extremist Activity, 25 July 2002) defined extremist activity/extremism as:

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

- undermining the national security of the Russian Federation;

- usurpation of power;

- founding armed criminal groups;

- carrying out terrorist activity;

- inciting racial, national/ethnic, religious hatred or social hatred accompanied by violence or calls for violence;

- diminishing national pride;

- creating mass disorder and committing acts of large-scale hooliganism or large-scale vandalism out of ideological, political, racial, national/ethnic or religious hatred or enmity, or out of hatred or enmity towards a social group;

- propaganda promoting exceptionality, superiority or inferiority of people on the grounds of their religion, social position, race, nationality/ethnic origin or language;

- propaganda and public display of Nazi attributes or symbols or attributes or symbols similar to Nazi attributes or symbols to the point of becoming undistinguishable;

- public appeals to carry out the aforementioned acts;

- funding the aforementioned acts or any assistance in preparing and carrying them out, including by providing training, printing and material/technical support, telephone or other means of communications or information services.

In August 2006 the above list was amended to include:

- public justification of terrorism;

- obstruction of the lawful activities of State authorities, electoral commissions and their officials, combined with violence or threats of the use thereof;

- public defamation of a State official of the Russian Federation or its constituent entities during the exercise of his or her official duties or in connection with those duties, including accusations of committing the acts mentioned in section 1 of the Act (provided that defamation was proven before a court);

- use of violence or threats of violence against a State official or his or her next of kin in relation to his or her official duties;

- an assassination attempt in respect of a State official or public figure, committed with the aim of putting an end to his or her public or other political activity or as a measure of revenge for that activity;

- violation of an individual ’ s rights and freedoms or damage to health or property on account of his or her religion, race, ethnicity, social position or social origin.

In August 2007 the list was amended and new definitions of extremist activity were added.

2. Criminal offences of an extremist nature

(a) Article 280 of the Criminal Code

Article 280 § 1 punishes public appeals to engage in extremist activity and the same offence committed via the mass media (Article 280 § 2). The latter offence was punishable at the time by compulsory labour or up to five years ’ imprisonment.

(b) Article 282 of the Criminal Code

Article 282 § 1 of the Criminal Code prohibits acts aimed at inciting hatred or enmity and the abasement of dignity of a person or a group of persons on the basis of sex, race, nationality, language, origin, attitude to religion or affiliation to a social group. Acts committed in public or with the use of the mass media are punishable by up to two years ’ imprisonment. On 22 April 2010 the Constitutional Court of Russia declared inadmissible a complaint about the vagueness and insufficient foreseeability of the term “social group” (decision no. 564-O-O of 22 April 2010). The relevant part of the decision reads:

“... Article 282 of the Criminal Code of Russia punishes acts aimed at inciting hatred or enmity and the abasement of human dignity. This provision ... guarantees recognition and respect for human dignity regardless of any physical or social attributes, and establishes criminal liability only for acts committed with direct intent and aimed at inciting hatred or enmity and the abasement of dignity of a person or a group of people. This legal provision does not therefore lack foreseeability and may not be considered to be a breach of the applicant ’ s constitutional rights.”

(c) Ruling no. 11 of the Supreme Court of Russia

On 28 June 2011 the Plenary Sup reme Court issued ruling no. 11 concerning criminal cases relating to extremism. The following instructions were given to the lower courts:

(i) Protection for the public interest (constitutional foundations, territorial integrity and national security) should be secured; constitutional rights and freedoms (religious freedoms, freedom of expression and the mass media, to seek, receive and impart information by lawful means; freedom of assembly) should be safeguarded.

(ii) “Extremist cases” should be distinguished from other cases on account of the special motive that must be proven (political, ideological, racial, ethnic or religious hatred or enmity or motives of hatred or enmity in relation to a social group).

(iii) Public appeals to engage in extremist activities (in terms of Article 280 of the Criminal Code) are defined as public appeals to others (by any means, including via the Internet) with the aim of inciting them to engage in extremist activities. At the same time, public dissemination of information arguing for or justifying unlawful acts on the grounds of race, ethnicity, religious beliefs and the like should instead be classified under Article 282 of the Criminal Code.

(iv) “Acts aimed at inciting hatred or enmity” should include, for example, expressions justifying or arguing for genocide, mass repressions, deportations or other unlawful acts in respect of people of a certain nation, race, followers of a certain religion or other groups of people. Criticism in respect of political organisations, ideological and religious organisations or criticism in respect of political, ideological or religious beliefs, ethnic or religious customs should not, per se , be classified as acts aimed at inciting hatred or enmity.

3. Other offences

Until 2011 Article 129 of the Criminal Code provided that defamation (dissemination of manifestly false information damaging one ’ s honour and dignity or reputation) involving an accusation of a serious or particularly serious offence was punishable by a fine or up to three years ’ “restriction of liberty” or imprisonment.

Article 294 provides that interference with the functioning of the courts with the aim of obstructing justice is punishable by a fine, compulsory labour or up to two years ’ imprisonment.

Until 2011 Article 298 provided that defamation of judges, jurors, prosecutors or investigators was punishable by up to four years ’ imprisonment.

Article 319 provided that public insult of a public official in the exercise of his or her public duties or in connection with those duties was punishable by a fine, community service or compulsory labour.

C. Other relevant material

T he European Commission for Democracy through Law (the Venice Commission) adopted Opinion no. 660/2011 (CDL-AD (2012)016) “On the Federal Law on Combatting Extremist Activity of the Russian Federation”.

On 9 March 2009 the OSCE Office for Democratic Institutions and Human Rights published “Hate Crime Laws: A Practical Guide”, in which it made the following observations on the possible scope of victim attributes in hate crime law:

“If a law includes characteristics that are not immutable or in some manner essential to a person ’ s sense of self and shared by persons who as a group have experienced discrimination, exclusion or oppression, it can be discredited as a hate crime law. Further, it can fail to protect those groups which are in fact victimized. People protected under the term “social group” might include members of the police or politicians, neither of whom is typically perceived as an oppressed group or as sharing fundamental bonds of identity. Indeed, if a law includes protected characteristics that are too far away from the core concept of hate crime it may no longer be seen as a hate crime law.

Further, the legal concept of certainty requires that a person be able to reasonably foresee the criminal consequences of his or her actions. The concept of legal certainty is reflected in both domestic laws in the OSCE region and regional and international human rights instruments. A law that imposes increased penalties but is unclear about the circumstances in which those penalties will be applied is likely to fail this fundamental test.”

COMPLAINTS

The applicant complains that various measures taken by the domestic authorities against him (including his allegedly arbitrary arrest, detention in appalling conditions without relevant and sufficient reasons and wrongful prosecution for criminal offences and convictions) disclosed violations of Articles 5 and 10 of the Convention. He also argues that he had no effective remedies at his disposal for the unjustified interference with his right to freedom of expression.

Lastly, the applicant complains about the conditions of his detention and that he had no effective remedies in respect of that complaint (Articles 3 and 13 of the Convention).

QUESTIONS TO THE PARTIES

1. Were Articles 3 and 13 of the Convention violated on account of the applicant ’ s conditions of detention in the temporary detention centre and detention centre no. 47/4 between 23 November 2007 and 20 May 2008?

2. Was his detention between November 2007 and May 2008 based on relevant and sufficient reasons, as required under Article 5 § 3 of the Convention? Did the authorities display special diligence in the conduct of the proceedings, in particular during the period concerning the psychiatric assessment (assuming this period should be taken into account under this head)?

3. Having regard to the answers to questions 1 and 2 above, was there a violation of Article 10 of the Convention in relation to the applicant ’ s article “Bloody Saturday of 3 March 2007” on account of his prosecution (including the related period of his pre-trial detention and his criminal conviction under Article 282 of the Criminal Code)? In particular:

- At the relevant time (2006 and 2007) did the applicable legislation meet the quality-of-law requirement, in particular as regards the possibility of classifying a public authority or plurality of its non-individualised officials as a protected “social group” (see, by way of comparison, Altuğ Taner Akçam v. Turkey , no. 27520/07 , §§ 85-96, 25 October 2011, with further references)?

- What legitimate aim was sought to be pursued by the legislation that was applied in the applicant ’ s case and by the above classification?

- Were the various elements of “interference” under Article 10 of the Convention “necessary in a democratic society”?

4. Was there a violation of Article 13 of the Convention on account of the “interference” under its Article 10 as regards (i) the applicant ’ s arrest and detention for six months and (ii) his criminal prosecution? In particular, did the applicant have any prospects of success in arguing before a “national authority” (for instance, an investigator) or a court (in a habeas corpus procedure or during detention hearings on the prosecutor ’ s extension requests) that detention pending investigation constituted a disproportionate “restriction” or “penalty” in terms of Article 10 § 2 of the Convention? Did the courts dealing with the charges against the applicant carry out a proper analysis of proportionality and necessity?

5. The respondent Government are requested to submit (i) material from the criminal case file, namely the full texts of the impugned articles and the expert and specialist reports adduced by the parties in the criminal proceedings, and (ii) a jurisprudential overview of the interpretation and application of the notion of “social group” by the Constitutional Court of Russia, the Supreme Court of Russia and regional courts of general jurisdiction.

[1] This is a line from a Soviet poem for children “Barmaley” by K. Chukovskiy.