Communicated on 7 January 2016

THIRD SECTION

Application no. 10692/09 Savva Sergeyevich TERENTYEV against Russia lodged on 5 January 2009

STATEMENT OF FACTS

1. The applicant, Mr Savva Sergeyevich Terentyev , is a Russian national, who was born in 1985 and lives in Syktyvkar, the Komi Republic. He is represented before the Court by Mr V.V. Kosnyrev , a lawyer practising in Syktyvkar.

A. The circumstances of the case

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

3 . The applicant had a blog hosted by livejournal.com, a popular blog platform. On 15 February 2007 he posted a comment on another user ’ s page . The applicant ’ s comment read as follows:

“I don ’ t agree with [your] idea that “ policemen still have the mentality of a hard stick of the state ” . First, they are not policemen but cops; second, their mentality is incurable. A pig is a pig. Who becomes a cop? Only the trash and rabble – the dumbest and most uneducated representatives of the ... animal kingdom. It would be great if in the centre of every Russian city, on the main square ... there were ovens, like those in Auschwitz, with daily ceremonies of burning dishonest cops (or even twice a day, say, at noon and midnight). The people would be burning them. This would be the first step to cleansing society of this thuggish cop scum.”

4. On 7 July 2008 the Syktyvkar Town Court of the Komi Republic found the applicant guilty under Article 282 § 1 of the Criminal Code of Russia (see paragraph 6 below) and sentenced him to one year ’ s imprisonment conditional on one year ’ s probation. The court examined, among other evidence, a sociological expert report of 19 June 2008 confirming that the applicant had targeted policemen as a “social group” and that his comment had aimed at inciting hatred and enmity towards this group. The relevant parts of the judgment read as follows:

“Russian policemen are a large social group – people united by their common activity in protecting the life, health, rights and liberties of people, property, public and State interests from crimes and offences ...

[Mr Terentyev ] was aware of the illegal character of his acts, he published his text ... on a more popular Internet blog than his own ... and thus made i t accessible to a larger public ... Access to the text was unrestricted and it remained accessible ... for approximately one month ...

Mr Terentyev ... negatively influenced public opinion, aiming to incite social hatred and enmity, to spread social conflict and controversy and to awaken base instincts in people. He set the community against police officers in calling for [their] physical extermination by ordinary people. The text does not allow for any ambiguous interpretation of [its] content and meaning, because it is understandable to any average native speaker of Russian who has basic oral and written language skills.

This text cannot be viewed as a criticism, as it was not intended as a discussion of any shortcomings or as an analysis or assessment of something specific ...

The crime committed by Mr Terentyev is particularly blatant and dangerous for national security [as] it runs against the fundamentals of the constitutional system and State security. These considerations enable the court to impose a sentence involving the deprivation of liberty ...”

5. The applicant appealed against the conviction. He pleaded, in particular, that the trial court had deliberately extended the scope of the term “social group” to encompass policemen. On 19 August 2008 the Supreme Court of the Komi Republic rejected the applicant ’ s appeal and endorsed the Town Court ’ s conclusions. It found that the applicant ’ s allegation of a loose interpretation of the term “social group” had not affected the objectivity of the court ’ s findings. It also added that the applicant “had not merely commented on an issue of general interest but ... had publicly called for violence against policemen”.

B. Relevant domestic law and practice

6. Article 282 § 1 of the Criminal Code of Russia prohibits actions aimed at inciting hatred or enmity, as well as 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 any social group. If these acts have been committed in public or with the use of mass media, they shall be punishable ... by imprisonment for a term of up to two years.

7. On 22 April 2010 the Constitutional Court of Russia declared inadmissible a complaint about the vagueness and unforeseeability of the term “social group” as defined by Article 282 § 1 of the Criminal Code (decision no. 564-O-O of 22 April 2010). The relevant part of the decision read as follows:

“... Article 282 of the Criminal Code of Russia punishes actions aimed at inciting hatred or enmity, as well as 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 actions committed with direct intent and aimed at inciting hatred or enmity, as well as the abasement of dignity of a person or a group of persons. Therefore this legal provision does not lack foreseeability and may not be considered as breaching the applicant ’ s constitutional rights.”

RELEVANT COUNCIL OF EUROPE MATERIAL

8. On 30 October 1997 the Committee of Ministers of the Council of Europe (Committee of Ministers) ad opted Recommendation No. R (97) 20 on “Hate Speech” in which it put forward the following principle:

“Principle 3

The Governments of the member states should ensure that in the legal framework referred to in principle 2, interferences with freedom of expression are narrowly circumscribed and [are] applied in a lawful and non-arbitrary manner on the basis of objective criteria . ”

9. On 12 April 2011 the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) issued an “Information Note on Honouring of obligations and commitments by the Russian Federation”, in which it made the following observations on the scope of anti-extremism legislation in Russia:

“29. ... Criticism about the law stems mainly from the vague definition of key words such as extremism, terrorism and social groups, thus giving enforcement authorities broad latitude in determining which organisations , individuals, and activities are covered by the law.”

RELEVANT INTERNATIONAL MATERIAL

10. On 9 March 2009 the OSCE Office for Democratic Institutions and Human Rights (“the ODIHR”) published A Practical Guide on Hate Crime Laws in which it made the following observations on the possible scope of victim attributes in hate crime law (pp. 45-46):

“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. ”

COMPLAINT

The applicant complains under Article 10 of the Convention of a violation of his right to freedom of expression.

QUESTION TO THE PARTIES

Was there a violation of Article 10 of the Convention? Did the domestic courts apply standards which were in conformity with the principles embodied in Article 10 of the Convention ? Was the applicant ’ s conviction based on a law which was sufficiently foreseeable (see, among others, Centro Europa 7 S.r.l . and Di Stefano v. Italy [GC], no. 38433/09, § § 140 ‑ 43, ECHR 2012)? Was the interference proportionate to a legitimate aim?