Last Updated on October 8, 2020 by LawEuro
Information Note on the Court’s case-law 244
October 2020
Karastelev and Others v. Russia – 16435/10
Judgment 6.10.2020 [Section III]
Article 10
Article 10-1
Freedom of expression
Prosecutor’s unfettered discretion to issue warnings, cautions and orders under “anti-extremism” legislation lacking foreseeability and safeguards: violation
Facts – The first and second applicants were deputy chief officer and chief officer respectively of an NGO (the third applicant), at the relevant time. They staged public protests against a law (the “Minors Protection Act”) which they considered to be too restrictive and unconstitutional. On one such occasion, a poster stating “Freedom is not granted, it has to be taken” was publicly exhibited. On another, two minors approached the first and second applicants and had a short conversation with them.
Relying on the Suppression of Extremism Act, the prosecutor’s office issued two separate written warnings, addressed to the first and second applicants in their capacity as the NGO officials. A caution was also issued to the NGO via the second applicant, indicating that extremist activities on the part of the NGO could entail its dissolution, while an order required that the NGO and second applicant “take measures to remedy the violations of law and remove the reasons and grounds for such violations”. The legal basis for the measures against the applicants was the classification of their actions as potentially leading to “extremist activity”, consisting of obstructing the lawful activities of the State authorities. The applicants appealed unsuccessfully.
Law – Article 10
(a) Nature and scope of the “interference” and the first and second applicants’ standing – With regard to the written warnings, while the applicants had not been found guilty of any administrative or criminal offence under Russian law, their conduct had been considered unlawful in a broader sense as potentially giving rise to what might be classified as “extremist activity”. The applicants had been put on notice of that finding of unlawfulness and had been required to act under the threat that a failure to do so could result in liability for an administrative offence. In addition to the “interference” in relation to their previous conduct during the demonstration, the applicants had also been confronted with a dilemma: either they complied with the warning and thus, in substance, refrained from further protests, or they refused to comply and faced prosecution.
The caution and order had been addressed to the NGO, via its chief officer, the second applicant. Her expressive conduct during the demonstration had laid the foundation for those documents to be issued. She had then resigned from her post, in order to ensure compliance with the impugned order and to avoid the NGO’s dissolution. Under Russian law, she also had the standing required to challenge those documents before the domestic courts. Thus, although the second applicant had not been found personally liable, or placed under a threat of any penalty, the caution and order procedures had amounted to “interferences” with her freedom of expression. She therefore had standing to complain under Article 10.
(b) Whether the interference was “prescribed by law”
(i) Proceedings before a prosecutor – The salient issue was whether, by conducting themselves in a given manner, the applicants knew or ought to have known – if need be, with appropriate legal advice – that this could expose them to the procedures under the anti‑extremism legislation, because their expressive conduct had posed a risk of future “extremist activities” consisting of “obstructing the lawful activities of the public authorities”. In particular, the term “obstruction” had been used to characterise a type of “extremist activity” exclusively in situations of “violence or threats of violence”. However, the interpretation and the application of those notions had been problematic under Article 10.
The risk of the “crime” to be prevented by having recourse to the warning procedure should be a real one and concern a concrete and specific offence of a certain level of seriousness; it should be closely linked to a specific person or persons, namely the one(s) “planning” the extremist activity to be prevented; and it should be established that the risk had arisen from statements or conduct attributable to the person who had been being subjected to the warning procedure. There was no information that the domestic regulatory framework had been circumscribed accordingly. While recourse to the warning procedure could not be equated to a fully-fledged criminal prosecution, it had remained unclear whether the authorities had used any ascertainable and foreseeable criteria for deducing a risk of obstructive conduct from behaviour such as the applicants’.
More generally, when assessing a specific instance of “interference” with freedom of expression in this type of case, various factors have to be taken into account, including: the context in which the impugned statements had been made, their nature and wording, their potential to lead to harmful consequences (such as violent obstruction of lawful activities of public authorities); whether the statements had been made against a tense political or social background; whether the statements, fairly construed and seen in their immediate or wider context, could be seen as a direct or indirect call for violence or as a justification of violence (or hatred or intolerance); the manner in which the statements had been made, and their capacity, direct or indirect, to lead to such harmful consequences. The Court also reiterated that protests, including actions taking the form of physically impeding certain activities, could constitute expressions of opinion within the meaning of Article 10. It was not shown that prosecutors had been required to take account of such elements when taking a decision to react, by way of the warning procedure, to an individual’s exercise of the right to freedom of expression. No guidelines applied by the authorities imposing warnings or cautions, or relevant authoritative case-law of the Russian courts, had been provided to the Court.
Furthermore, no clear criteria had existed to distinguish between “extremist activity”, including calls to carry such out, which could amount to a criminal offence, and conduct not amounting to such an offence, but which could still give rise to the warning procedure, as it had been the case for the applicants. It appeared difficult to distinguish between a criminal call to obstruct the activities of public authorities combined with (a threat of) violence, a slogan in the same vein, which might give rise to a warning, and a slogan that would not give rise to any liability under the anti‑extremism legislation. The resulting uncertainty had adversely affected the foreseeability of the regulatory framework, while being conducive to creating a negative chilling effect on freedom of expression, and had left too much discretion to the executive. The domestic law had been formulated in broad terms, leaving too wide a discretion to the prosecutor and making its application unforeseeable.
Lastly, the above findings had also applied to the caution and order procedures. No explanation had been provided as to the rationale for such procedures in the event where the impugned actions had been directly attributable to an individual’s personal exercise of the right to freedom of expression, rather than to the NGO’s activities.
(ii) Judicial review – Post factum remedies under the applicable domestic framework had not afforded protection against arbitrariness and the exercise of the unfettered power by a non-judicial authority. Under the applicable judicial review procedure, the courts had no competence to assess the reasonableness of the authorities’ acts or decisions made within their discretionary powers and to apply the proportionality test, in conformity with Convention standards. The courts had not been able to ascertain whether the applicable framework had provided adequate safeguards against arbitrariness.
(iii) The applicants’ conduct – It had not been reasonable to deduce a risk of violent obstructive conduct towards the authorities (or any real threat of violence) from the applicants’ conduct. It had not been demonstrated that their conduct had been capable of leading directly or indirectly to disorder, for instance in the form of public disturbances obstructing the activity of the public authorities. Similarly, the existence of a risk that a crime would be committed had not been substantiated and had not been linked to any specific person or persons.
In sum, the domestic legislation and practice had accordingly not been foreseeable as to their effects and had not provided adequate protection against arbitrary recourse to the warning, caution and order procedures. The “interference” was not “prescribed by law”.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 6 § 1, on account of the first applicant being denied access to a court in respect of the warning issued to him personally.
Article 41: EUR 3,000 in respect of non-pecuniary damage for the first applicant.
(See also Lashmankin and Others v. Russia, 57818/09 et al., 7 February 2017, Information Note 204)
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