Information Note on the Court’s case-law 211

October 2017

Dmitriyevskiy v. Russia - 42168/06

Judgment 3.10.2017 [Section III]

Article 10

Article 10-1

Freedom of expression

Criminal conviction of newspaper editor for publishing articles by Chechen separatists: violation

Facts – The applicant was the chief editor of a regional newspaper. In 2004 the newspaper published two articles that were believed to have been wr itten by two Chechen separatist leaders who were wanted in Russia on serious criminal charges. In the first article, the author urged Chechens to choose peace and get rid of the President by voting against him in the pending presidential elections. In the second, the author alleged that the Chechen people were being subjected to a continuing genocide orchestrated by the Kremlin. The applicant was charged under Article 282 § 2 of the Criminal Code with incitement to hatred or enmity and the humiliation of hu man dignity. He was subsequently convicted after a linguistic expert appointed by the trial court concluded, inter alia , that the authors of the articles had sought to incite racial, ethnic or social discord, associated with violence and the use of terrori st methods. The applicant was given a two-year suspended sentence and four years’ probation for having published the articles.

In the Convention proceedings, the applicant complained of a violation of his freedom of expression secured by Article 10 of the Convention.

Law – Article 10: The applicant’s conviction had interfered with the exercise of his freedom of expression. The Court proceeded on the assumption that the interference could be regarded as prescribed by law and it was prepared to accept that it pursued the aims of protecting national security, territorial integrity and public safety and preventing disorder and crime.

In order to determine whether the applicant’s conviction in connection with those articles was “necessary in a democratic society” , the Court had particular regard to 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 domestic courts to justify the interference.

The applicant was the chief edit or of a regional newspaper and in that capacity his task was to impart information and ideas on matters of public interest. The two articles, presumably written by two Chechen separatist leaders, concerned governmental policies in the region and were part of a political debate on a matter of general and public concern. While the Court was mindful of the very sensitive nature of that debate, it noted that the fact that the presumed authors were leaders of the Chechen separatist movement and were wanted in Ru ssia on a number of very serious criminal charges could not in itself justify interfering with the freedom of expression of those who published the articles.

The first article was written in quite a neutral and even conciliatory tone and could not be construed as stirring up hatred or intolerance on any ground, let alone fuelling violence capable of provoking any disorders or undermining national security, terr itorial integrity or public safety. Although the second article was more virulent and strongly worded, using expressions such as “genocide”, “criminal madness by the bloody Kremlin regime”, “Russia’s terror”, “terrorist methods” and “excesses”, it was an i ntegral part of freedom of expression to seek the historical truth and a debate on the causes of acts of particular gravity which could amount to war crimes or crimes against humanity had to be able to take place freely. Moreover, it was in the nature of p olitical speech to be controversial and often virulent.

Overall, the views expressed in the articles could not be read as an incitement to violence or as instigating hatred or intolerance liable to result in violence. There was nothing in the articles othe r than a criticism of the Russian Government and their actions in the Chechen Republic. However acerbic that criticism might have been it did not go beyond the acceptable limits, which were particularly wide with regard to the government.

As to the approa ch taken by the domestic courts, their decisions in the applicant’s case were profoundly deficient. Firstly, the crucial legal finding as to the presence in the impugned articles of elements of “hate speech” was made by the linguistic expert rather than by the courts themselves. That situation was unacceptable as all legal matters had to be resolved exclusively by the courts. Secondly, there was nothing in the domestic courts’ decisions to show that they had made any attempt to assess whether the impugned s tatements could be detrimental to national security, territorial integrity or public safety, or to public order. The domestic authorities had thus failed to base their decision on an acceptable assessment of all relevant facts and to provide “relevant and sufficient” reasons for the applicant’s conviction.

Lastly, both the applicant’s conviction and the severe sanction imposed were capable of producing a chilling effect on the exercise of journalistic freedom of expression in Russia and dissuading the pres s from openly discussing matters of public concern, in particular, those relating to the conflict in the Chechen Republic.

The domestic authorities had thus overstepped the margin of appreciation afforded to them for restrictions on debates on matters of public interest.

Conclusion : violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

(See also Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Information Note 189 ; and Fatullayev v. Azerbaijan , 40984/07, 22 April 2010, Information Note 129 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Co urt.

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