DISSENTING OPINION OF JUDGE DEDOV

1. I regret that I cannot agree with the majority that there has been a violation of Article 10 of the Convention. The Court considered that the applicants did not have the right to enter a public building and that their arrest by the police was justified; however, their criminal convictions did not meet a pressing social need because the reasons given in support of the applicants’ conviction were not “relevant and sufficient” for the purposes of Article 10 § 2 of the Convention (see paragraph 35). Therefore, the emphasis was laid on the adequacy of the authorities’ reaction. In the view of the Court, the reaction was proportionate in the beginning but not proportionate at the end of the proceedings, as the sanction imposed on the applicants in the present case was not proportionate to the aim of punishing their criminal conduct, and the interference in question was even “not necessary in a democratic society”.

2. The majority paid little attention to the manner in which the applicants expressed their opinion; they limited this factor to the initial stage of interference (apprehension) and made no legal assessment of those factual circumstances. The domestic courts, by contrast, concentrated on the applicants’ behaviour, which played a central role for the legal characterisation of the situation as a mass disorder. The Court accepted that the applicants’ behaviour had been disruptive, but the severity of the sanction prevented the Court from supporting the conclusion of the domestic courts.

3. The severity of the sanction – two and a half years of imprisonment – is a borderline issue in the present case, thus the domestic authorities should enjoy a certain margin of appreciation. However, when striking a balance between the individual rights and the public interests, the Court attaches particular weight to freedom of speech. I certainly agree with this approach. However, we should not forget that this approach is theoretical and even idealistic, so it depends on certain criteria. An ideal situation, under which freedom of speech would be at its maximum, is when the issue raised is of public importance for sustainable development and social progress; when the opinion is expressed in a polite, respectful manner which could be shocking and provocative, but not insulting, aggressive or violent; and when the opinion consists of rational arguments eligible for commencing a public debate.

4. In the present case the applicants’ behaviour did not meet any of the above criteria and ultimately undermined the importance of this individual right within the fair balance analysis. The applicants manifested their opinion on a very controversial issue of social benefits, which were poorly structured, covered almost half of the population, were difficult to manage and highly burdensome for the State budget. Obviously, the reforms in question were necessary at that time. The applicants expressed their opinion irrationally and in a very aggressive manner, destroying property, frightening innocent people by referring to an emergency situation, carrying nail guns which could accidentally injure other people, and using firecrackers which could have started a fire. They seized a State building (“an armed siege of the building was taking place” according to witnesses), an act that has been considered “internal terrorism” in the USA. The history of the “National Bolshevik Party” counts sixteen takeovers of public buildings, so the “chilling effect”, in my view, had been necessary in the present case.

5. According to the Convention, freedom of speech is not absolute. However, the liberal approach makes it almost absolute since it allows a negative reaction in the case of violence only, and tolerates actions that are dangerous, aggressive, destructive, threatening, scary, but not actually violent. Freedom of speech was born when there was no more strength left to endure injustice and inhuman treatment.

6. Now the moral situation has changed to the opposite: inequality and unfairness have significantly reduced, but the manner in which opinions are expressed have become hard to endure. This is the result of a radical liberal approach which supports a vision of freedom of speech that departs far from rational debate and becomes indistinguishable from hooliganism. This situation inevitably requires a holistic approach on the part of the Court.