Last Updated on December 7, 2021 by LawEuro
Information Note on the Court’s case-law 257
December 2021
Yefimov and Youth Human Rights Group v. Russia – 12385/15 and 51619/15
Judgment 7.12.2021 [Section III]
Article 10
Article 10-1
Freedom of expression
Unjustified prosecution for hate speech and placement on list of terrorists and extremists for publishing a note criticising the Russian Orthodox Church: violation
Article 11
Article 11-1
Freedom of association
Requirement to remove person suspected of an extremist offence from participation in the applicant association and its dissolution not prescribed by law: violation
Facts – The first applicant was the founder and director of the applicant association. In 2011, he posted a short note on the applicant association’s newspaper website concerning the Russian Orthodox Church, and for which he was, inter alia, prosecuted for hate speech and placed on the list of terrorists and extremists. The applicant association subsequently received a notice from the Ministry of Justice requiring it to remove the first applicant as its founder or member, and was later dissolved. The applicants appealed unsuccessfully up to the Supreme Court.
Law – Article 10: The first applicant had complained that his prosecution for an expression of his views had been in breach of Article 10.
(a) Existence of an interference
The pursuance of criminal proceedings against the first applicant in connection with his publication and the placement of his name on the list of terrorists and extremists had amounted to an interference with his right to freedom of expression.
(b) Justification for the interference
The Court left open the issue of whether the interference had been “prescribed by law” with a view to examining the complaint from the standpoint of the necessity of the interference. It was also prepared to accept that the protection of the rights of others might be a legitimate aim of the interference.
The decision to institute criminal proceedings and the decision to declare the first applicant a suspect had said very little, if anything, about the factual basis for the prosecution or the legal characterisation attributed to the acts. The Court accordingly proceeded to apply the criteria laid down in its case-law to the extent that the domestic authorities had omitted to consider the matter in the light of the requirements of Article 10.
The first applicant’s note had concerned a supposedly growing anti-clerical sentiment in the Republic of Karelia. In setting out his views on what might have adversely affected attitudes towards the Russian Orthodox Church, he had referred to the Church’s close links with the political party in power, the continued construction of religious buildings at public expense, the allocation of former kindergartens for use by the church, and the pervasive presence of priests on public television. He had cited anti-clerical graffiti on the walls of a former kindergarten converted into a religious centre as evidence of negative attitudes towards the Church. Admittedly, the criticism had been strongly worded and some people might have taken offence at the language. However, that did not mean that it constituted “hate speech”. The key issue in the present case was thus whether the applicant’s comments, when read as a whole and in their context, could be seen as promoting violence, hatred or intolerance.
The first applicant had expressed his concern about what he saw as the encroachment of one particular religious organisation on public facilities and its unjust enrichment at the expense of society as a whole. His criticism had focused on the religious organisation rather than on individual believers and had not called for anyone’s exclusion or discrimination, let alone incite to acts of violence or intimidation. Nor had it been claimed that any factual allegations in the publication, such as the building of churches at public expense, the conversion of kindergartens into religious facilities or the existence of graffiti, had been untrue or slanderous in nature.
As regards the aims of protecting national security and preventing disorder to which the Government had referred, they had not put forward any evidence of a sensitive social or political background, a tense security situation, an atmosphere of hostility and hatred, or any other particular circumstances in which the publication had been liable to produce imminent unlawful actions against Orthodox priests and to expose them to an actual or even remote risk of violence.
Lastly, in so far as the nature and severity of the penalties imposed were factors to be taken into account when assessing the proportionality of an interference, the Court noted that the first applicant had been prosecuted on charges punishable with a deprivation of liberty.
In view of the above, the publication had not been shown to be capable of inciting violence, hatred or intolerance or causing public disturbances, and the grounds for levelling criminal charges against the applicant had been inconsistent with the Article 10 standards.
Conclusion: violation (unanimously).
Article 11 in the light of Article 10:
(a) Existence of an interference
The requirement to expel the first applicant from the applicant association and the decision on its dissolution had amounted to an interference with both applicants’ right to freedom of association protected by Article 11. Furthermore, to the extent that the measures taken against the applicant association had been prompted by the views expressed by the first applicant, the interference had to be examined in the light of the principles established under Article 10.
(b) Justification for the interference
The statutory basis for the measures against the applicants could be found at the junction of two provisions of Russian law. The Court examined them in turn to ascertain whether they were sufficiently foreseeable to meet the “quality of law” requirement and necessary in a democratic society to achieve any of the legitimate aims.
(i) Prohibition on persons suspected of extremist offences from participating in an association
From the relevant domestic law provisions, it appeared that an investigator’s decision that a person was suspected of an extremist offence constituted a necessary but also self-sufficient legal basis for barring the suspected individual from participating in any association, whether existing or future. That decision triggered the adding of the person’s name to the list of terrorists and extremists which, in turn, resulted in a legal ban on his or her participation in associations. That sequence of restrictive measures was put in motion automatically, without any judicial control or review of the investigator’s decision. It followed that the relevant provisions conferred on an investigator the legal authority and full discretion over the exercise of a fundamental right to freedom of association. An unqualified restriction on the exercise of that right was an extremely severe measure which would need to be justified by serious and compelling reasons even in the case of a convicted person, let alone someone who had been merely suspected of a certain type of offence and still benefitted from the presumption of innocence.
However, an assessment of proportionality and of a link between the restrictive measure and the conduct and circumstances of the person concerned was not required by Russian law. Courts reviewing a complaint about the inclusion of the person’s name on the list only needed to satisfy themselves that it had been based on an appropriate procedural document drawn up by an investigator. It followed that Russian law did not offer any procedural safeguards against potentially abusive use of the discretion to declare suspicion and the resulting restriction on freedom of association.
(ii) Dissolution of an association for “indicators of extremist activities”
The second domestic law provision lay down a procedure for dissolution of an association which had failed to eliminate “indicators of extremist activities”.
In the case of Vona v. Hungary on which the Government had relied, but also in other similar cases, the Court had found the dissolution of applicant associations justified because of their members’ involvement in intimidation, violence or disturbances of public order. In contrast, in the present case, during the thirteen years of the applicant association’s legal existence, no irregularities in its activities and no misconduct attributable to it had been identified. The only ground for its dissolution had been the failure to comply with the Ministry of Justice’s request to expel the first applicant from its membership after his name had been added to the list of terrorists and extremists. Given the formal nature of the ground for dissolution, the courts had not been required to check whether the allegedly unlawful conduct by the first applicant could be imputable to the applicant association.
It followed that the applicant association had been dissolved not for any “indicators of extremist activities” in its own conduct – because it had not been claimed that there had been any – but for the fact that its founder had been suspected of an extremist offence. That measure could be interpreted in several ways, all of which led the Court to the conclusion that the interference had not been “prescribed by law”:
Domestic law established that a letter of warning might be issued to an association in whose conduct “indicators of extremist activities” had been identified. The legislation provided no definition of the concept of “indicators of extremist activities”. The Court had already found that a distinction could not be ascertained between “extremist activities” as such, and the conduct that did not amount to such activities, but contained their “indicators” and could give rise to the warning procedure. The resulting uncertainty had adversely affected the foreseeability of the regulatory framework, while being conducive to creating a chilling effect on freedom of expression and leaving too much discretion to the executive (see Karastelev and Others v. Russia).
In addition, the legislation appeared had been imprecise in terms of how such activities should be imputed to various actors. Since the applicant association’s engagement in any “extremist activities” had not been shown, and since no indicators of such activities had been identified in its own conduct, the decision to hold it responsible for the allegedly unlawful conduct of its founder had been arbitrary.
Lastly, the dissolution of the applicant association had been a direct consequence of the investigator’s decision to declare the first applicant a suspect in an extremist offence. The Court referred to its above finding that conferring unchecked discretion on the investigative authorities without judicial control and without due regard for the presumption of innocence was, in itself, incompatible with the “quality of law” requirements.
Accordingly, the dissolution of the applicant association had not had a clear and foreseeable legal basis. The finding that the interference had not been “prescribed by law” dispensed the Court from examining whether it had also pursued a legitimate aim and had been “necessary in a democratic society”.
Conclusion: violation (unanimously) in respect of both applicants.
Article 41: EUR 10,000 to the first applicant in respect of non-pecuniary damage.
(See also Vona v. Hungary, 35943/10, 9 July 2013, Legal Summary; Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Legal Summary; Karastelev and Others v. Russia, 16435/10, 6 October 2020, Legal Summary)
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