Information Note on the Court’s case-law 264

July 2022

Kotlyar v. Russia - 38825/16, 29722/18 and 12920/20

Judgment 12.7.2022 [Section III]

Article 10

Article 10-1

Freedom of expression

Criminal liability for deliberate false registration of immigrants at applicant’s property, in protest against residence registration system for migrants: Article 10 inapplicable

Article 7

Article 7-1

Retroactivity

Retroactive application of criminal law for deliberate false registration of immigrants at applicant’s property: violation

Facts – The applicant is a human-rights defender and member of a town council. She has worked for many years to provide legal advice and social assistance to people who decided to move to Russia from other republics of the former Soviet Union.

In 2013, a new migration law was enacted, which introduced the concept of “fictitious residence registration”, creating new criminal offences under Articles 322.2 and 322.3 of the Criminal code, and establishing new grounds for administrative liability. Between 2014-2019, the applicant was prosecuted and tried under those provisions for falsely certifying, in respect of hundreds of non-Russian nationals seeking residence registration, that they had lived in her flat on a temporary or permanent basis, whereas they were actually living elsewhere. This included false registrations which predated Articles 322.2 and 322.3 entering into force. The applicant appealed unsuccessfully against her convictions in that respect. She submitted, inter alia , that she had provided residence certification on compassionate grounds to immigrants who had needed to secure such registration in order to be able to apply for Russian nationality. Moreover, her actions constituted a form of civil disobedience.

Law – Article 7: The Government had argued that, even before the new law had come into force, the applicant could have been prosecuted for the impugned false registrations under Article 322.1 of the Criminal Code, which had sanctioned the organisation of the illegal entry, stay or transit of non-Russian nationals.

It had not been alleged that the non-nationals in question – whom the applicant had registered as residents in her flat – had entered Russia illegally or had lacked the proper documentation to stay legally in Russia. It therefore did not appear that the applicant could have foreseen that she would be held responsible for organising the illegal entry or illegal stay of non-nationals in so far as the required element of illegality had not been made out.

Regarding the application in practice of Article 322.1, the Government had not submitted evidence to indicate that any homeowners who had made fraudulent registration applications had been prosecuted under that provision. According to the explanatory note to the new law, the issue of “elastic flats”, whereby hundreds of people were registered as residents while living elsewhere, had reached considerable proportions. An issue of that magnitude should have given rise to extensive case-law on the prosecution of owners of “elastic flats” under Article 322.1, and yet not one conviction had been submitted to the Court. The absence of evidence of any prior convictions tended to indicate that such activities could not be prosecuted under the previous legislation. Indeed, the explanatory note had made it apparent that the Russian authorities had been concerned that there had been no sufficient legal means of tackling the problem of “elastic flats”.

The timing of the criminal proceedings against the applicant was also significant. The authorities had been aware of her activities for years before the adoption of the new law. However, criminal proceedings had only been initiated after the new law had entered into force, and initially only in respect of the three instances of “fictitious registration” that had taken place after the date of entry into force. At a later stage, further charges relating to a period prior to the new law’s entry into force had been added, despite the applicant’s objection regarding the retroactive application of criminal law.

It therefore had not been shown that the applicant’s acts had constituted a prosecutable offence under domestic law prior to the entry into force of Articles 322.2 and 322.3. It followed that, in so far as the applicant’s conviction had concerned the acts carried out before that date, it had amounted to the retroactive application of criminal law.

Conclusion : violation (six votes to one).

Article 10: The applicant further complained that the criminal proceedings against her had sought to stifle her freedom to express an opinion on a systemic social problem.

The applicant had been a vocal critic of the deficiencies in the legal framework and its practical implementation which had prevented immigrants from accessing State benefits or applying for Russian citizenship. She had used a variety of means to raise awareness of the issues faced by immigrants, including seeking to draw the authorities’ attention to those issues, making statements to the media, giving interviews and publishing open letters.

There was no indication that any repressive measures had been taken in reaction to the forms of expression she had chosen to voice her opinions on that matter. In so far as the applicant had not been prevented from bringing her views to the public’s attention, the present case did not concern a restriction on a communicative activity aimed at broader public, but rather the taking of measures against the applicant for actions that, under the domestic legal system, had infringed criminal law in a manner unrelated to the exercise of freedom of expression. Even assuming that the applicant had intended to convey a message of protest through her disruptive conduct in the administrative proceedings, such conduct could not, seen from an objective point of view, be considered to amount to an expressive act in the circumstances of the case.

The present case also had to be further distinguished from cases like Erdtmann v Germany (dec.) (carrying a knife onto an airplane to prepare a television documentary about airport security flaws) and Salihu and Others v. Sweden (dec.) (illegal purchase of a firearm to investigate how easy it had been to obtain one). In those cases, the sanction had interfered with the applicants’ right to freedom of expression in so far as they had been held responsible for acts that had formed part of an investigation undertaken while gathering material for a planned article. The applicant in the instant case had not claimed that she had committed residence-regulation offences as part of an investigation into any official abuse or for the purposes of preparing material that was to be published.

The residence registration law that the applicant had been found to have infringed had not targeted the exercise of freedom of expression as such or any specific form of expression. It had gone no further than requiring that the information about a person’s place of residence be truthful and accurate, so that the authorities could, among other purposes, reliably calculate how many public services were needed in each area and ensure that official correspondence was properly addressed and delivered. Providing untrue information about the place of residence impeded the achievement of those legitimate aims, and the authorities could take measures to counteract such conduct by introducing administrative or criminal sanctions.

The Court could not accept that either the applicant’s altruistic motivation or the sincerity of her conviction of the wrongness of the residence regulations had released her from the duty to obey the law. Admittedly, a protest taking the form of impeding the activities of which applicants disapprove might constitute an expression of opinion within the meaning of Article 10 (see, for example, Steel and Others v. the United Kingdom, and Hashman and Harrup v. the United Kingdom [GC], involving protests, respectively, against hunting by disrupting organised hunts and against the enlargement of a motorway by breaking into a construction site). However, there was a significant difference between being sanctioned for offering some form of resistance to lawful activities of others and actively engaging in criminally reprehensive conduct by making false representations to the authorities. The law had made it an offence to provide deliberately false information in official applications and there was nothing unusual or unreasonable in that approach, nor was there any basis in the Court’s case-law to find that Article 10 protected the provision of such for neutral regulatory purposes.

As the applicant had been held liable for breaching a generally applicable law that had not been designed to suppress, or had had the effect of interfering with, any “communicative activity” on her part, the conduct for which she had been sanctioned had not fallen within the ambit of Article 10.

Conclusion: inadmissible (incompatible ratione materiae ).

Article 41: EUR 6,000 in respect of non-pecuniary damage.

(See also Steel and Others v. the United Kingdom , 24838/94, 23 September 1998, Legal Summary ; Hashman and Harrup v. the United Kingdom [GC], 25594/94, 25 November 1999, Legal Summary ; Erdtmann v Germany (dec.), 56328/10, 5 January 2016, Legal Summary ; Salihu and Others v. Sweden (dec.), 33628/15, 10 May 2016, Legal Summary )

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

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