Last Updated on December 14, 2021 by LawEuro
Information Note on the Court’s case-law 257
December 2021
Judgment 14.12.2021 [Section III]
Article 10
Article 10-1
Freedom of expression
Unjustified conviction of newspaper editor and termination of newspaper’s media-outlet status under anti-extremism laws: violations
Facts – The applicant was editor-in-chief of a newspaper and founder of an informal not-for-profit organisation which campaigned to amend legislation in order to provide for the personal liability of certain elected officials.
A text relating to one of the organisation’s manifestos, entitled “You voted, you have the right to judge”, was published in the newspaper on numerous occasions for over a decade. In 2006, the newspaper received two anti-extremism cautions from the media regulator in relation to the text. The media regulator subsequently brought successful court proceedings, seeking the newspaper’s divestment of its mass-media-outlet status and ban from being distributed. The Editorial Board of the newspaper appealed unsuccessfully.
Separately, the newspaper published a series of texts from D. and another party, including a piece entitled “Death to Russia!” in 2006. The applicant was subsequently subject to criminal proceedings and convicted under domestic anti-extremism legislation, for publication of the piece. He appealed unsuccessfully.
Law – Article 10:
(a) The applicant’s criminal conviction and sentencing
The applicant’s prosecution and conviction had amounted to an “interference” under Article 10 § 1. Although there was a lack of clarity as to the scope of the criminal charge against the applicant, the Court proceeded on the understanding that he had been convicted of public calls to others to engage in activities within the scope of two specific “extremist activities” mentioned in the relevant domestic law: activities aimed at the forcible change of the foundations of the constitutional regime, and at the undermining of national security.
The Court left open the question of whether the application of the domestic law provisions to the applicant’s case had been reasonably foreseeable and thus “prescribed by law” within the meaning of Article 10 § 2. It considered that the applicant’s conviction, at least prima facie, had pursued the legitimate aims of the interests of national security, public safety and prevention of disorder and crime.
The Court therefore had to determine whether the applicant’s conviction had been “necessary in a democratic society”. The criminal conduct imputed to the applicant had consisted of his actions taken as a newspaper editor, specifically by way of adding a headline “Death to Russia!” to D.’s text and of publishing that material as a newspaper article.
The problematic part of D.’s text had called for the “destruction” of the current political regime in Russia. The text had left little doubt as to its meaning: it had clearly stated that the path of reforms had proved to be ineffective and that the only solution would consist in the total destruction of that “State” through its replacement by another State rather than a “change of regime”.
As regards the applicant, the domestic courts had considered that his editorial choices, including the wording and addition of the headline “Death to Russia!”, had been guided by his negative attitude towards the existing social and political regime in Russia. It had been incumbent on the criminal courts to elaborate on that general assertion regarding the specific criminal charge of incitement to extremist activities, and in particular as regards the applicant’s motivation for disseminating D.’s views. The courts had not considered the context surrounding the publication, including whether the applicant, by publishing D.’s text, had expressed any endorsement, approval or support for the content; the applicant had argued that he had intended to (further) expose and discredit views held by D. It was also to be noted that the publication had formed part of an ongoing debate between D. and another individual.
Even accepting that it had been established that the applicant had disagreed with certain State policies, that factor alone would not necessarily be sufficient to prove his intention to incite others to engage in activities aiming at a violent overthrow of the government or at otherwise undermining national security. The applicant’s choice to add the headline “Death to Russia!” would not necessarily be conclusive in that connection either; it was obvious that it had reproduced verbatim the concluding remark from D.’s text. The criminal courts had not convincingly established that the principal purpose of the applicant’s editorial choices had not been to thereby contribute to a discussion of general interest, or that the manner in which he had discharged his relevant duties and responsibilities had not been in compliance with the standards of responsible journalism.
The Court stressed that its findings in the present case should not be taken as an approval of the language used in D.’s text or the views put forward in it. They had been limited to the fact that the domestic courts had provided insufficient reasons to justify the applicant’s conviction under the domestic law.
The applicant had been sentenced to two years’ imprisonment with the sentence suspended and a two-year ban on holding leadership positions in a mass-media outlet. It had not been convincingly shown that the sentence was proportionate in the circumstances of the case, which had concerned a single instance of publishing another person’s controversial views.
Conclusion: violation (unanimously).
(b) Termination of the newspaper’s media-outlet status
The newspaper had been divested of its mass-media status, originally conferred in 1995, and its certificate of registration as a mass-media outlet had been annulled. That had put an end to its operation as a mass-media outlet and thereby to the applicant’s participation, as an editor-in-chief, in the newspaper’s exercise of freedom of expression, and specifically the freedom of the press. It had amounted to a complete and permanent ban on the distribution of the newspaper in Russia.
The impugned measures constituted an “interference” under Article 10 § 1, which had been aimed, at least on the face of it, at ensuring national security and preventing (future) disorder and crime. In view of the below findings, the Court did not need to determine whether it had been sufficiently foreseeable so as to be “prescribed by law” within the meaning of Article 10 § 2.
The Court had to determine whether the interference had been “necessary in a democratic society”. The termination of the distribution of the newspaper had been ordered by a court, which was a valuable safeguard of freedom of the press. However, the decisions given by the national courts had also to conform to the principles of Article 10.
The decision to terminate the newspaper’s media-outlet status had been based on two official anti-extremism cautions, issued in 2006 by the media regulator to the newspaper and applicant as editor, and in relation to the publication of the text “You voted, you have the right to judge”. The issuance of cautions amounted to less intrusive measures than immediate termination of a media outlet’s status. However, the termination of a media outlet’s status could be sought and ordered any time after issuing the cautions; the lack of any ascertainable time-limit had been conducive to creating and maintaining an adverse chilling effect on a media outlet’s legitimate exercise of its right to freedom of expression. Moreover, it had not been argued that the operation of the media outlet could be, or had been, later suspended on a temporary basis.
The parties had not taken a clear stance as to the scope of judicial assessment in proceedings concerning the termination of the newspaper’s media-outlet status. However, it was clear that the essential factual and legal elements had been limited to the formal fact of the issuance, within a year, of two cautions and their validity at the time when an application for terminating a media outlet’s distribution had been lodged. The particularly drastic measure of terminating a newspaper media-outlet’s status had to be justified. No such justification had been established or put forward by the national courts in the present case. There had been no judicial assessment of the underlying factual and legal elements pertaining to whether there had been a “pressing social need” for ending the newspaper’s distribution and whether it had been “necessary in a democracy society” in pursuit of certain legitimate aims.
The text, which had given rise to the termination of the newspaper’s distribution, had been published on numerous occasions over many years prior to 2006, without giving rise to the application of the relevant domestic law on extremism or any concerns relating to the interests of national security and prevention of disorder or crime. The court decisions in the termination case had provided no insight into any change of circumstances that might have occurred in 2006. The Government had seemed to suggest that the newspaper had been used as the mouthpiece for an organisation, pursuing ends contrary to the values of the Convention. However, no relevant factual or legal findings had been made by the courts during the termination proceedings.
The narrow scope of the judicial assessment had made the termination of media-outlet status an automatic outcome resulting from the mere existence of at least two official cautions. Given the domestic courts’ omission – whether by operation of the law or on the facts of the case – to provide sufficient reasons to justify the interference, the Court found that they had not convincingly demonstrated that the interference had been proportionate to the legitimate aims pursued.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
(See also Karastelev and Others v. Russia, 16435/10, 6 October 2020, Legal Summary; RID Novaya Gazeta and ZAO Novaya Gazeta v. Russia, 44561/11, 11 May 2021)
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