CONCURRING OPINION OF JUDGE LEMMENS

1. I voted with the majority in finding that there had been no violation of either Article 10 or Article 6 of the Convention. I also voted for holding that it was not necessary to decide whether Article 17 was to be applied.

In this opinion I would like briefly to comment on the relationship between Articles 10 and 17 and on the scope of the latter Article.

2. Replying to the complaint based on Article 10, the Government objected in the first place to the admissibility of this complaint on the ground that the articles written by the applicant fell within the scope of Article 17 and were therefore removed from the protection of Article 10. This is an objection based on the incompatibility ratione materiae of the Article 10 complaint with the Convention.

Following a strict logic, the Court would first have to examine the objection and, depending on the outcome of that examination, decide whether the complaint was admissible or not. If the Court found that the statements made by the applicant were covered by Article 17, then Article 10 would have to be declared inapplicable and the complaint incompatible ratione materiae with the Convention, without there being any need to examine whether the interference with the applicant ’ s freedom of expression was lawful, pursued a legitimate aim, and was proportionate to that aim (see, for example, Garaudy v. France ( dec. ), no. 65831/01, ECHR 2003 ‑ IX (extracts); Norwood v. the United Kingdom ( dec. ), no. 23131/03, ECHR 2004 ‑ XI; Hizb Ut-Tahrir and Others v. Germany ( dec. ), no. 31098/08, 12 June 2012, §§ 74-75 and 78; Kasymakhunov v. Russia , no. 29604/12, §§ 113-114, 14 November 2013; M ’ Bala M ’ Bala v. France ( dec. ), no. 25239/13, § 42, ECHR 2015 (extracts); Belkacem v. Belgium ( dec. ), no. 34367/14, § 37, 27 June 2017; and Roj TV A/S v. Denmark ( dec. ), no. 24683/14, §§ 48-49, 17 April 2018). If, by contrast, the Court were to find that the applicant ’ s statements were not such that they were covered by Article 17, then it would have to declare Article 10 applicable and (unless the complaint had to be declared inadmissible on another ground) proceed with an examination of the merits.

In the present case, the Court in effect leaves open the question whether the Article 10 complaint is admissible. Not only does it join the Government ’ s objection relating to the applicability of Article 10 to the merits (see paragraph 35 of the judgment), but when it comes to the examination of the merits it arrives at its conclusion without having previously returned to the issue of the applicability of Article 10 (see paragraph 73 of the judgment). Indeed, the Court states that it is not necessary to consider the question of Article 17, and thus of the applicability of Article 10 (see paragraph 74 of the judgment).

What the Court states is in fact as follows: without it being necessary to decide whether Article 10 is applicable or not, that Article has in any event not been violated. If Article 17 had been applied, a straightforward conclusion could have been reached; by leaving the question of Article 17 open, the Court opts to embark on a “normal” analysis of the Article 10 complaint, including an assessment of the proportionality of the interference.

The latter approach is possible when under the “normal” analysis of Article 10 the conclusion is that the complaint is manifestly ill-founded or that there has been no violation of that Article (see, for example, Williamson v. Germany ( dec. ), no. 64496/17, §§ 20-21, 8 January 2019; Šimunić v. Croatia ( dec. ), no. 20373/17, § 39, 22 January 2019; and (implicitly) Pastörs v. Germany , no. 55225/14, § 49, 3 October 2019). If the Court had considered that the interference was not prescribed by law, did not pursue a legitimate aim or was not necessary in a democratic society, it could only have concluded that there had been a violation of Article 10 if it had rejected the Government ’ s objection based on Article 17 (see, for example, Vajnai v. Hungary , no. 33629/06, §§ 26 and 58, ECHR 2008; Fatullayev v. Azerbaijan , no. 40984/07, §§ 81 and 105, 22 April 2010; Rubins v. Latvia , no. 79040/12, §§ 49 and 93, 13 January 2015; Perinçek v. Switzerland [GC], no. 27510/08, § 282, ECHR 2015 (extracts); Stern Taulats and Roura Capellera v. Spain , nos. 51168/15 and 51186/15, § 42, 13 March 2018; and Ibragim Ibragimov and Others v. Russia , nos. 1413/08 and 28621/11, § 124, 28 August 2018).

3. In my opinion, it would have been possible for the Court to find that the applicant ’ s statements were not covered by Article 17, and then to conclude that there had (nevertheless) not been a violation of Article 10 (see, for a similar approach, Féret v. Belgium , no. 15615/07, § 82, 16 July 2009).

Indeed, the Court has made clear that Article 17 is only applicable on an exceptional basis and in extreme cases (see Paksas v. Lithuania [GC], no. 34932/04, § 87, 6 January 2011). In cases concerning Article 10 of the Convention, “it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention” (see Perinçek , cited above, § 114; Roj TV A/S , cited above, § 46; Ibragim Ibragimov and Others , cited above, § 62; and Pastörs , cited above, § 37). The decisive point under Article 17 is “whether the applicant ’ s statements sought to stir up hatred or violence, and whether by making them he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it” (see Perinçek , cited above, § 115).

In the present case, “the Court agrees with the national courts that the wording of the impugned statements could be reasonably assessed as stirring up base emotions or embedded prejudices in relation to the local population of non-Russian ethnicity” (see paragraph 64 of the judgment). The applicant ’ s statements were clearly xenophobic. That does not mean, however, that the statements were totally unprotected under Article 10. In my opinion, for Article 17 to apply (and Article 10 not to apply), there would have to be a “call for hatred, violence or intolerance” (see Perinçek , cited above, § 239, and compare with the wording used in the judgments cited in paragraph 52 of the present judgment). I do not think that the applicant ’ s articles can be read as containing such a call. The applicant merely vented his own frustration at the presence of “non-Russians”. Article 17 is therefore not applicable, and Article 10 is applicable.

4. For the reasons developed in the judgment, I agree that the authorities had good reasons to react to the applicant ’ s statements (see paragraph 64 of the judgment) and that there has been no violation of Article 10.