THIRD SECTION
\nCASE OF ATAMANCHUK v. RUSSIA
\n(Application no. 4493\/11)
\nJUDGMENT<\/p>\n
Art 10 \u2022 Freedom of expression \u2022 Criminal conviction, fine and two-year ban on journalistic or publishing activities imposed on businessman for hate speech against ethnicities \u2022 Sweeping statements without any explicit call for violence \u2022 Temporary ban on journalistic or publishing activities having no significant practical consequences in view of applicant\u2019s main professional activity as entrepreneur \u2022 Exceptional circumstances justifying sentences imposed<\/p>\n
STRASBOURG
\n11 February 2020<\/p>\n
This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Atamanchuk v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Having deliberated in private on 14 January 2020,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no. 4493\/11) against the Russian Federation lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr Vladimir Leonidovich Atamanchuk (\u201cthe applicant\u201d), on 18 January 2011.<\/p>\n 2. The Russian Government (\u201cthe Government\u201d) were represented by Mr\u00a0M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.<\/p>\n 3. On 23\u00a0January 2017the Government were given notice of the complaints under Articles 6 and 10 of the Convention and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I. THE CIRCUMSTANCES OF THE CASE<\/p>\n 4. The applicant was born in 1951 and lives in Sochi.<\/p>\n 5. At the material time, the applicant was leader of the local branch of the Democratic Party of Russia and founder of Sochi\u2013Drugoy Vzglyad, a local newspaper with a circulation of 8,000. He also occasionally published articles in other local newspapers, apparently as a freelancer.<\/p>\n 6. On 1 March 2008 Lazarevskaya Panorama, a local newspaper with a circulation of 10,000, published an article by the applicant headlined \u201cWhy I will not vote in these elections\u201d, in which the applicant stated why he would abstain in the presidential election that was due to take place on 2\u00a0March 2008.<\/p>\n 7. The article was placed on the front page of the newspaper that had a headline in large red type saying \u201cTime to vote\u201d. There were two sub\u2011headings (\u201cYes!\u201d in red and \u201cNo…\u201d in black). The text was divided into two columns: the left side gave the statements of five people who were going to vote while the right side contained the applicant\u2019s article.<\/p>\n 8. The applicant\u2019s article read, in its relevant parts, as follows:<\/p>\n \u201cWe are going to have a presidential election soon. It is difficult to grasp the game between good and evil this time … So, here is my decision.<\/p>\n First of all, I am not a puppet in the hands of political gangs who are making a farce out of the presidential election. They only need our participation in the election for the sake of giving it an impression of a legal process, one which will result in the dislocation of Russia. This might explain the sad results of government by the two recent rulers of the State. As a result, we have what we have: widespread corruption on a broad platform of lies created by the press under the control of the State and oligarchs. Platitudes, depravity, and aggressive propaganda in favour of violence flow out at us from our television screens …<\/p>\n That is how it all goes. However, it is all depicted as the reconstruction of the State, the strengthening of the economy and the rule of law on the background of growing wealth for the People.<\/p>\n \u2018Which people?\u2019 I suddenly thought. \u2018Does it really matter?\u2019, was the answer from the television screen, \u2018It would not be politically correct to give a specific answer to that, to avoid complaints …\u2019.<\/p>\n Secondly, in fifteen years of \u2018new style\u2019 democracy no Russian person [\u0440\u0443\u0441\u0441\u043a\u0438\u0439\u0447\u0435\u043b\u043e\u0432\u0435\u043a] has seen anything good. He has been pushed down to the level of a simpleton who is to serve various small ethnic groupings that call themselves \u2018republics\u2019, within Russia or elsewhere … In the Russia destroyed by the Bolsheviks they were called \u2018non-Russians\u2019 or the \u2018non-Russian population\u2019 … And no one took offence at the time. Everyone stayed within his own locality, doing his best to make it wealthy. No one was irritated by that.<\/p>\n So what happened? Where do we stand today?<\/p>\n Those who on account of their ethnic [\u043d\u0430\u0446\u0438\u043e\u043d\u0430\u043b\u044c\u043d\u044b\u0435] characteristics had engaged in criminal activities or tended their sheep or goats or prayed to their god abandoned their motherland and came here. They now call themselves builders, entrepreneurs, cultural workers or whatever is needed to get their hands into others\u2019 pockets.<\/p>\n Just look around and you will see crowds of them staring at you greedily at every corner …<\/p>\n \u2018We will be victorious over you all. We hold all these Kuban people,\u2019 they say during their closed meetings in their own language that 99% of Russians do not understand.<\/p>\n But they will speak Russian later, when they have totally paralysed our will. That is when they will start to burn, slaughter, rape, rob and enslave, in line with their barbaric ideas, as it was in Chechnya.<\/p>\n But for the time being, it is all \u2018friendship and solidarity between nations\u2019. For the time being that is. And the President of Russia is handing out Hero of Russia decorations to slave traffickers! …<\/p>\n They participate in the destruction of the country … Various processes of destruction dominate our society today. That is why I will not take part in the election …<\/p>\n However, I express my hope that when taking his decisions the new President will take into account the views I have expressed for myself and for those who are not going to vote on 2 March 2008.\u201d<\/p>\n 9. The article was accompanied by the applicant\u2019s photograph and indicated that he was leader of the local branch of the Democratic Party of Russia.<\/p>\n 10. The same text was reprinted in Sochi\u2013Drugoy Vzglyad on 25\u00a0December 2009. The front page of the newspaper had an article titled \u201cA campaign of criminal prosecutions on political motives has started in Sochi\u201d about the criminal proceedings against the applicant for that text (see below). The article was repeated in small print at the bottom of the same page.<\/p>\n 11. This issue of Sochi\u2013Drugoy Vzglyadalso contained a separate page with varying opinions expressed by various people in relation to the applicant\u2019s text and his ongoing criminal prosecution. One comment was made by a lawyer who considered that the main thread of the article concerned various destructive processes in the country arising, for instance, from inefficient migration policies adversely affected by widespread corruption; at the same time, the article contained no calls to action, in particular violent actions, and could not be classified as \u201cextremist activity\u201d. The article also contained a statement by the leader of the Lazarevskoye\u00a0district branch of the Armenian Union of Russia. It also contained the applicant\u2019s \u201copen letter\u201d in reply to that statement. It was specified in the article that on 17 December 2009 the applicant had had a meeting with the Lazarevskoye district branch.<\/p>\n 12. It appears that both newspapers were distributed for free by being put into people\u2019s letter boxes within several streets in the Sochi area, including Lazarevskoye village for the second publication.<\/p>\n 13. In the meantime, a criminal pre-investigation inquiry was opened on suspicion of inciting hatred and enmity, and at debasing the human dignity of a person or group of people on account of their ethnicity. In this connection, in August 2009 an investigator sought an opinion from professionals in language and psychology.<\/p>\n 14. Ms B. and Ms R., professionals in language and psychology, issued their joint report on 5 November 2009. The report concluded as follows: the text contained statements disclosing a negative attitude toward a social group on the basis of its ethnicity, language and religion; some phrases extended certain negative characteristics of some members of a non-Slavic group to the entire group as such; the text contained no phrases calling for violence against them.<\/p>\n 15. On 24 November 2009 and then in January 2010 the applicant was accused of an offence under Article 282 \u00a7 1 of the Criminal Code in relation to each publication. That offence was punishable by, inter alia, a fine from 100,000 to 300,000 Russian roubles (RUB); a court could also prohibit a person from exercising a certain activity for a period up to three years. The applicant was charged with committing actions aimed at inciting hatred and enmity, and at debasing the human dignity of a person or group of people on account of their ethnicity (\u043d\u0430\u0446\u0438\u043e\u043d\u0430\u043b\u044c\u043d\u043e\u0441\u0442\u044c), language, origin and religious beliefs.<\/p>\n 16. During the preliminary investigation Mr F., a specialist in philology, also issued a specialist report (\u0437\u0430\u043a\u043b\u044e\u0447\u0435\u043d\u0438\u0435\u0441\u043f\u0435\u0446\u0438\u0430\u043b\u0438\u0441\u0442\u0430).<\/p>\n 17. According to F.\u2019s report, the article contained an implicit incitement to violent acts against people of a certain social group on account of their ethnicity, race, religion or other social characteristics.<\/p>\n 18. The investigator in the case commissioned another expert report (\u0437\u0430\u043a\u043b\u044e\u0447\u0435\u043d\u0438\u0435\u044d\u043a\u0441\u043f\u0435\u0440\u0442\u0430).<\/p>\n 19. Ms L. and (again) Ms R., professionals in linguistics and psychology, issued their joint report on 29 January 2010.<\/p>\n (a) The linguistics part of the report stated as follows: the content of the applicant\u2019s text concerned political and social issues addressed to a large audience; the main part of the text started at the phrase \u201cWhich people?\u201d that introduced his subsequent discussion based on the opposition between the Russian people and the population of the non-Russian origin; the author presented their \u201cethnic characteristics\u201d as the reasons for the suffering of the Russian people; the author had used what could be described in linguistics as \u201chate speech\u201d or aggressive language creating an enemy image; he had used expressions that would be insulting to any ethnic group; while he had not named any specific group, it was clear from the context that he meant (essentially non-Slavic) ethnicities of Central Asia, Northern Caucasus and Transcaucasia; from certain parts of the text it became clear that he was talking about the Armenian ethnicity, among others; the text did not contain phrases calling for violent actions against a person or a group of people on account of his\/her\/their social status, race, ethnicity, language, gender or religion.<\/p>\n (b) The psychology part of the report concluded as follows: the article contained phrases disclosing a negative attitude toward a social group on the basis of its ethnicity, language and religion; those phrases could be perceived as inciting readers to feel hatred and enmity; the text did not contain phrases calling for violent actions against a person or a group of people on account of his\/her\/their social status, race, ethnicity, language, gender or religion.<\/p>\n 20. The criminal case against the applicant was sent for trial before the Lazarevskiy District Court of Sochi. The applicant pleaded not guilty and affirmed that the text represented his own personal views and opinions.[1] After some minor stylistic changes on the part of the newspaper\u2019s editor the applicant had approved the publication by way of his signature of the newspaper issue\u2019s layout. The applicant also argued that he had not had anything to do with the publication of his text on 25\u00a0December 2009 (see paragraph 10above).<\/p>\n 21. The court examined the documentary evidence, including the expert opinions, and heard several witnesses for the defence. The court dismissed an application by the applicant to summon F. for questioning in court about his report. Apparently, neither the prosecution nor the defence deemed it necessary to obtain oral submissions from the other experts whose reports had been admitted in evidence.<\/p>\n 22. By a judgment of 19 July 2010, the District Court convicted the applicant of inciting hatred and enmity, debasing the human dignity of a person or group of people on account of their ethnicity, language, origin and religious beliefs. The trial court phrased the accusation against the applicant as follows:<\/p>\n \u201cIn an intentional and premediated manner [the applicant] worded the main part of his text by way of an opposition between the people of Russian ethnicity [\u0440\u0443\u0441\u0441\u043a\u0438\u0439\u043d\u0430\u0440\u043e\u0434] and members of other ethnicities [\u043d\u0430\u0446\u0438\u043e\u043d\u0430\u043b\u044c\u043d\u043e\u0441\u0442\u0438] residing in Russia, while making statements that would be insulting and degrading to the dignity of any ethnicity; he indicated that the troubles of the Russian population lay in the non\u2011Russian groups\u2019 ethnic characteristics, thus creating an image of enemies.<\/p>\n Moreover, [the applicant\u2019s] assessment of the situation of the people of the Russian origin is intentionally provocative, being aimed at inciting hatred within the people of Russian ethnicity toward other ethnicities.<\/p>\n Giving a negative assessment of any group on account of its origin, non-Russian ethnicity or on account of their language or religious beliefs, [the applicant] made statements about criminal propensity of those groups and affirmed the existence of their conspiracy against the Kubans [that is to say residents of Krasnodar Region]. He attributed to the non-Russian residents bad intentions toward the Russian population thereby creating a negative image of people prone to commit crimes in Kuban …<\/p>\n Moreover, in his article [the applicant] characterised people of non-Russian origin as inherently ignorant, rude, cruel, inhuman, aggressive and prone to crime against the Russian population, having secrets plans and conspiracies against people of Russian ethnicity.<\/p>\n [The applicant\u2019s] statements about future violent actions on the part of non-Russian ethnicities toward the Russian people are phrased as statements that cannot be verified as to their veracity because they have no factual basis and do not go beyond his own speculations …<\/p>\n Clearly being aware that Krasnodar Region is a multi-ethnic region and that newspaper articles have an active influence on many people, [the applicant] disseminated his strong views, thereby undermining the confidence and respect toward a certain ethnicity, a certain religion and inciting hatred and enmity toward a certain way of life, culture, traditions and religious cults of the non-Russian population …\u201d<\/p>\n Reproducing the concluding remarks from the expert opinions, F.\u2019s report and listing other evidence for each count of the accusation, the court concluded that the applicant was guilty as charged.<\/p>\n 23. As to the publication of the applicant\u2019s article in Sochi\u2013Drugoy Vzglyadon 25 December 2009, the court noted that the applicant was the founder of that newspaper, that he had signed a contract for printing the relevant issue and paid for it, and had then received the whole issue and had distributed it.<\/p>\n 24. The trial court sentenced the applicant to a fine of RUB 200,000 (5,086 euros (EUR) at the time) for each time the article had been published. It also imposed an additional sentence prohibiting the applicant from exercising any journalistic or publishing activities for two years. Noting the expiry of the prosecution period in respect of the first article, the court ordered that the related sentences were not to be enforced as regards the first article.<\/p>\n 25. The court also held as follows:<\/p>\n \u201cThe author made manifestly provocative statements when assessing the situation of the Russian people, thus inciting his readers of Russian origin to feel hatred towards other ethnicities [nationalities].<\/p>\n The author made a negative statement about various groups on account of their origin being different from that of Russians … Thereby, the author made intentional statements concerning the criminal propensities of certain groups, asserted that there was a plot by non-Russians against the population of the Kuban area (that is to say Russians living in Krasnodar Region) … He said non-Russians had plans to harm Russians, thus creating a negative image of non-Russians … He described non\u2011Russians as ignorant, rude, cruel or inhuman … Those are conjectures that are aimed at instilling fear …<\/p>\n As regards the type of sentence and its severity, the court takes into account the nature and degree of dangerousness of the relevant offences, the information about the defendant\u2019s personality, the circumstances that plead for mitigating or aggravating the sentence and the sentence\u2019s potential for correcting the defendant\u2019s behaviour.<\/p>\n Pursuant to Article 15 of the Criminal Code, the two offences committed by the defendant are offences of minor gravity. The defendant has been given average reviews from his neighbours. No mitigating or aggravating circumstances … have been established … In view of the foregoing and bearing in mind the aim of restoring the justice and the principle of proportionality, [the following elements are taken into account:] the influence of the sentence in terms of correcting the defendant\u2019s behaviour and noting that it was the first time he had committed those offences of minor gravity, that he has been taking care of an elderly mother, that he is self\u2011employed as an entrepreneur. Thus the court imposes the sentence in the form of a fine. Given that all the offences concerned a journalistic activity, the court finds it necessary to impose an additional sentence consisting in prohibiting him from carrying out a certain type of activity …\u201d<\/p>\n 26. The applicant appealed, stating, inter alia, that the trial court\u2019s refusal to summon \u201cdefence witness\u201d F. had undermined the defence\u2019s rights. The applicant indicated that F. had been interviewed during the preliminary investigation as a \u201cspecialist\u201d and had then submitted a report (see paragraph\u00a017 above).<\/p>\n 27. On 8 September 2010 the Krasnodar Regional Court upheld the judgment, relying on the expert reports. It made no findings relating to the lack of opportunity to put questions to F. during the trial.<\/p>\n 28. For unspecified reasons the applicant did not pay the fine. On 22\u00a0August 2011 the Lazarevskiy District Court of Sochi examined a bailiff\u2019s request, found that the applicant had manifestly evaded payment of the fine and replaced the fine with two hundred hours of community work.<\/p>\n II. Other relevant material<\/p>\n 29. On 8 December 2015 the Council of Europe\u2019s European Commission against Racism and\u00a0Intolerance (ECRI)\u00a0adopted General Policy Recommendation No. 15 on combating hate speech. In its relevant part, the recommendationreads as follows:<\/p>\n \u201cThe European Commission against Racism and Intolerance (ECRI):<\/p>\n …<\/p>\n Recommends that the governments of member States:<\/p>\n …<\/p>\n 10. take appropriate and effective action against the use, in a public context, of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it through the use of the criminal law provided that no other, less restrictive, measure would be effective and the right to freedom of expression and opinion\u00a0is respected, and accordingly:<\/p>\n a. ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied;<\/p>\n b. ensure that the scope of these offences is defined in a manner that permits their application to keep pace with technological developments;<\/p>\n c. ensure that prosecutions for these offences are brought on a non-discriminatory basis and are not used in order to suppress criticism of official policies, political opposition or religious beliefs;<\/p>\n d. ensure the effective participation of those targeted by hate speech in the relevant proceedings;<\/p>\n e. provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response;<\/p>\n f. monitor the effectiveness of the investigation of complaints and the prosecution of offenders with a view to enhancing both of these;<\/p>\n g. ensure effective co-operation\/co-ordination between police and prosecution authorities…\u201d<\/p>\n 30. The Explanatory Memorandum to the recommendation, in its relevant part, provides as follows:<\/p>\n \u201c16. …\u00a0the assessment as to whether or not there is a risk of the relevant acts occurring requires account to be taken of the specific circumstances in which the hate speech is used. In particular, there will be a need to consider (a) the context in which the hate speech concerned is being used (notably whether or not there are already serious tensions within society to which this hate speech is linked): (b) the capacity of the person using the hate speech to exercise influence over others (such as by virtue of being a political, religious or community leaders); (c) the nature and strength of the language used (such as whether it is provocative and direct, involves the use of misinformation, negative stereotyping and stigmatisation or otherwise capable of inciting acts of violence, intimidation, hostility or discrimination); (d) the context of the specific remarks (whether or not they are an isolated occurrence or are reaffirmed several times and whether or not they can be regarded as being counter-balanced either through others made by the same speaker or by someone else, especially in the course of a debate); (e) the medium used (whether or not it is capable of immediately bringing about a response from the audience such as at a \u201clive\u201d event); and (f) the nature of the audience (whether or not this had the means and inclination or susceptibility to engage in acts of violence, intimidation, hostility or discrimination).\u201d<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 31. The applicant complained under Article 10 of the Convention of his criminal conviction for inciting hatred and enmity, and debasing the human dignity of a person or group of people on account of their ethnicity, language, origin and religious beliefs.<\/p>\n 32. Article 10 of the Convention reads, in its relevant parts, as follows:<\/p>\n \u201c1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …<\/p>\n 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …\u201d<\/p>\n A. The parties\u2019 submissions<\/strong><\/p>\n 33. First of all, citing the Court\u2019s case-law, the Government mentioned that the complaint had to be dismissed with reference to Article 17 of the Convention.\u00a0The Government argued that the interference in the present case (the applicant\u2019s criminal conviction) had been aimed at protecting the rights of others, preventing disorder and at \u201csolving a potential conflict by legal means\u201d. There had been a pressing social need to put an end to the dissemination of provocative publications. The applicant\u2019s articles could have incited violence and could have adversely affected the Russian legal order (\u043f\u0440\u0430\u0432\u043e\u043f\u043e\u0440\u044f\u0434\u043e\u043a). The applicant had intended to use aggressive language by way of drawing an image of an enemy for inciting and deepening strong destructive feelings, hate and anger within its readers.\u00a0Should the Court consider Article 17 of the Convention inapplicable, the Government argued that the criminal sentence had been a proportionate measure in the circumstances of the case.<\/p>\n 34. The applicant maintained his complaint.<\/p>\n B. The Court\u2019s assessment<\/strong><\/p>\n 1. Admissibility<\/em><\/p>\n 35. The Court considers that the Government\u2019s reference to Article 17 of the Convention and, by implication, considerations relating to the applicability of Article 10 are closely linked to the merits of the complaint under that Article and thus should be joined to the merits (see Perin\u00e7ek v.\u00a0Switzerland [GC], no. 27510\/08, \u00a7 115, ECHR 2015 (extracts), and Stern\u00a0Taulats\u00a0and Roura Capellera v. Spain, nos. 51168\/15 and 51186\/15, \u00a7\u00a023, 13 March 2018).<\/p>\n 36. The Court also notes that the complaint under Article 10 of the Convention is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 2. Merits<\/em><\/p>\n 37. To the extent that the applicant can rely on Article 10 of the Convention, the Court reiterates that an \u201cinterference\u201d infringes Article\u00a010 of the Convention unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether the interference was \u201cprescribed by law\u201d, sought to pursue one or more legitimate aims as defined in that paragraph and was \u201cnecessary in a democratic society\u201d to achieve those aims.<\/p>\n (a) \u201cPrescribed by law\u201d<\/p>\n 38. The Court notes that the applicant\u2019s prosecution was based on Article\u00a0282 \u00a7 1 of the Russian Criminal Code. He has not raised any specific argument pertaining to whether that \u201cinterference\u201d was \u201cprescribed by law\u201d. The Court considers that this criterion has been complied with in the present case.<\/p>\n (b) Legitimate aims<\/p>\n 39. The Government mentioned the aim of protecting the rights of others, preventing disorder and \u201csolving a potential conflict by legal means\u201d. In their view, the applicant\u2019s articles could have incited violence and could have adversely affected the Russian legal order (\u043f\u0440\u0430\u0432\u043e\u043f\u043e\u0440\u044f\u0434\u043e\u043a).<\/p>\n 40. The applicant was convicted for inciting hatred and enmity and debasing the dignity of a \u201cgroup of people\u201d on account of their \u201cethnicity, language, origin and religion\u201d. As noted in at least one of the expert reports, the applicant did not target any specific group by naming it in his article, except for an indirect reference to the Armenian ethnic group. The domestic court found it established that in his article the applicant talked about people residing in Krasnodar Region and being \u201cnon-Russian\u201d in that they had a non-Russian ethnicity and\/or had arrived in Russia from another country and\/or spoke a language other than Russian and\/or had religious beliefs (apparently, different from the majority of the population in the region). It does not appear that the applicant contested that interpretation. The Court finds it established and will thus take it into account.\u00a0Indeed, the applicant affirmed, with reference to \u201cethnic characteristics\u201d, that members of those groups had engaged in criminal activities and that while residing in Russia they continued to behave in a criminal manner. On the other hand, the applicant opposed those groups to the \u201cRussian\u201d population in the sense of an ethnicity.<\/p>\n 41. At the same time, the content of the article reveals that it also focused on the fact that those groups or their individual members had \u201cmigrated\u201d to Russia. This aspect is also pertinent while being secondary.<\/p>\n 42. In view of the foregoing considerations, the Court accepts that the \u201cinterference\u201d in the present case was aimed at protecting the \u201crights of others\u201d, specifically the dignity of people of a non-Russian ethnicity residing in the Krasnodar Region in Russia. In Aksu v. Turkey ([GC], nos.\u00a04149\/04 and 41029\/04, \u00a7\u00a7 44, 53-54, 61 and 81, ECHR 2012) the Court observed that discrimination on account of,\u00a0inter alia, a person\u2019s ethnicity is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. The Court also held, inter alia, that negative stereotyping\u00a0of an ethnic group was capable, when reaching a certain level, of having an impact on the group\u2019s sense of identity and on its members\u2019 feelings of self\u2011worth and self-confidence (ibid; see also Lewit v. Austria, no. 4782\/18, \u00a7\u00a7\u00a046-47 and 82-87, 10 October 2019).<\/p>\n 43. In the Court\u2019s view, there is no basis in the domestic assessment for the Government\u2019s allegation relating to prosecuting the applicant on account of a risk of violence or, more generally, any risk of disorder.To substantiate that legitimate aim, it must be demonstrated that an applicant\u2019s statements were \u201ccapable of leading\u201d or actually led to disorder \u2013 for instance in the form of public disturbances such as riots \u2013 and that the domestic authorities had that in mind when acting to penalise him or her (see Perin\u00e7ek, cited above, \u00a7\u00a7\u00a0146 and 151-53). It is uncontested that the applicant\u2019s article contained no direct or indirect calls to violence. Indeed, the court did not appear to follow the finding made in F.\u2019s report that the applicant\u2019s statements contained an indirect call to violent actions against a group of people (see paragraphs 17 and\u00a022 above).<\/p>\n 44. Furthermore, in the absence of sufficient detail, the Court does not discern whether the Government\u2019s reference to \u201cadverse consequences for the Russian legal order\u201d or \u201csolving a potential conflict by legal means\u201d amounted to legitimate aims in terms of Article 10 \u00a7 2 of the Convention.<\/p>\n 45. The Court will now turn to the issue of whether the interference with the applicant\u2019s right to freedom of expression was (convincingly demonstrated to be) \u201cnecessary in a democratic society\u201d in the pursuance of the legitimate aim of protecting the \u201crights of others\u201d as they have been described above (see also Perin\u00e7ek, cited above, \u00a7\u00a0156, and\u00a0Balsyt\u0117\u2011Lideikien\u0117 v. Lithuania, no. 72596\/01, \u00a7 73, 4 November 2008).<\/p>\n (c) \u201cNecessary in a democratic society\u201d<\/p>\n (i) General principles<\/p>\n 46. Freedom of expression constitutes one of the\u00a0essential foundations of a democratic society\u00a0and one of the basic conditions for its progress and for each individual\u2019s self-fulfilment. Subject to paragraph 2 of Article 10, freedom of expression is applicable not only to \u201cinformation\u201d or \u201cideas\u201d that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no \u201cdemocratic society\u201d (see B\u00e9dat v. Switzerland [GC], no.\u00a056925\/08, \u00a7\u00a048, 29\u00a0March 2016).<\/p>\n 47. Offensive language may fall outside the protection of freedom of expression if it amounts to \u201cwanton denigration\u201d, but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes. Style constitutes part of communication as the form of expression and is as such protected together with the substance of the ideas and information expressed (see\u00a0G\u00fcl\u00a0and\u00a0Others v. Turkey, no.\u00a04870\/02, \u00a7\u00a041, 8 June 2010, and\u00a0Grebneva and Alisimchik v. Russia, no.\u00a08918\/05, \u00a7\u00a052, 22 November 2016, and the cases cited therein).<\/p>\n 48. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, as a recent authority, Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy v. Finland [GC], no.\u00a0931\/13, \u00a7 124, 27 June 2017).<\/p>\n 49. The Court\u2019s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 of the Convention the decisions they delivered in accordance with their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify the interference are \u201crelevant and sufficient\u201d and whether it was \u201cproportionate to the legitimate aim pursued\u201d. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts (see, among other authorities, Perin\u00e7ek, cited above, \u00a7\u00a0196).<\/p>\n 50. When assessing a specific instance of \u201cinterference\u201d with freedom of expression in this type of case, various factors should be taken into account, including: the context in which the impugned statements were made, their nature and wording, their potential to lead to harmful consequences and the reasons adduced by the national courts to justify the interference in question; whether the statements were 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, hatred or intolerance; the manner in which the statements were made, and their capacity \u2013 direct or indirect \u2013 to lead to harmful consequences. It is the interplay between the various factors rather than any of them taken in isolation that determines the outcome of a particular case (see Mariya Alekhina and Others v. Russia, no.\u00a038004\/12, \u00a7\u00a7\u00a0217-21, 17 July 2018, and Ibragim Ibragimov and Others, nos.\u00a01413\/08 and 28621\/11, \u00a7 99, 28\u00a0August 2018).<\/p>\n 51. In assessing whether the statements could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance, the Court has been particularly sensitive towards sweeping statements attacking or casting in a negative light entire ethnic, religious or other groups (see Seurot v. France (dec.), no. 57383\/00, 18 May 2004; Soulas and Others v. France, no. 15948\/03, \u00a7\u00a7 40 and 43, 10 July 2008; and Le\u00a0Pen v. France (dec.), no. 18788\/09, 20 April 2010, all of which concerned generalised negative statements about non-European and in particular Muslim immigrants in France; Norwood v. the United Kingdom (dec.), no. 23131\/03, ECHR 2004-XI, which concerned statements linking all Muslims in the United Kingdom with the terrorist acts in the United States of America on 11 September 2001; W.P. and Others v. Poland (dec.), no. 42264\/98, 2 September 2004, and Pavel Ivanov v. Russia (dec.), no.\u00a035222\/04, 20 February 2007, both of which concerned vehement anti\u2011Semitic statements; F\u00e9ret v. Belgium, no. 15615\/07, \u00a7 71, 16 July 2009, which concerned statements portraying non-European immigrant communities in Belgium as criminally minded; Hizb ut-Tahrir and Others v.\u00a0Germany (dec.), no.\u00a031098\/08, \u00a7 73, 12 June 2012, and Kasymakhunov and Saybatalov v. Russia, nos. 26261\/05 and 26377\/06, \u00a7 107, 14 March 2013, which concerned direct calls for violence against Jews, the State of Israel, and the West in general).<\/p>\n 52. Inciting hatred does not necessarily involve an explicit call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to\u00a0ridicule\u00a0or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner (see F\u00e9ret, cited above, \u00a7\u00a073; see also Vejdeland and Others v. Sweden, no. 1813\/07, \u00a7 55, 9\u00a0February 2012; Dmitriyevskiy v. Russia, no.\u00a042168\/06, \u00a7 99, 3\u00a0October 2017; and Ibragim Ibragimov and Others, cited above, \u00a7 94).<\/p>\n (ii) Application of the principles in the present case<\/p>\n 53. In his article the applicant claimed to present his arguments for his decision not to vote in the coming election. His reasoning led him to enquire about the notion of \u201cthe people\u201d whose wealth had been growing, according to some assessments. His ensuing reasoning could be perceived as suggesting that the people of Russian ethnicity suffered and non-Russian groups were to blame. His article ended with an appeal to an incoming President of Russia to tackle related issues.<\/p>\n 54. The applicant affirmed, with reference to \u201cethnic characteristics\u201d, that members of those groups had engaged in criminal activities and that while residing in Russia they continued to behave in a criminal manner, getting \u201ctheir hands into others\u2019 pockets\u201d and conspiring against the \u201cKuban people\u201d. The applicant affirmed that the members of those groups would \u201cslaughter, rape, rob and enslave, in line with their barbaric ideas\u201d and that they \u201cparticipate[d] in the destruction\u201d of Russia.<\/p>\n 55. The applicant was then convicted for his article that, as adjudged by the domestic courts, incited hatred and enmity and debased the dignity of a group of people on account of their ethnicity, language, origin and religion.<\/p>\n 56. For each publication of the article the applicant was sentenced to a fine of RUB 200,000 (some EUR 5,086 at the time)[2] and was also prohibited from exercising any journalistic or publishing activities for two years. Noting the expiry of the prosecution period in respect of the first article, the court ordered that the related sentences were not to be enforced as regards the first publication of the article.<\/p>\n 57. As regards the language used in the article, the Court considers that it was such as to \u201coffend, shock or disturb\u201d. Having said this, the Court reiterates that it is the interplay between the various factors, rather than any of them taken in isolation, that leads it to the conclusion that a particular statement constitutes an expression which cannot claim the protection of Article 10 or which may be punished by way of criminal proceedings, for instance, under the legislation pertaining to \u201chate speech\u201d as in the present case.<\/p>\n 58. It has not been contested, and the Court accepts, that the reasons adduced by the domestic courts for convicting the applicant were relevant in the pursuance of a legitimate aim (see paragraph 42 above). It remains to be ascertained whether those reasons were sufficient in the context of the present case.<\/p>\n 59. In this connection the Court notes that the impugned text was first published during and in relation to an ongoing election campaign in 2008 (compare F\u00e9ret, cited above, \u00a7 79). The underlying intended message of the applicant\u2019s article was to present his own views regarding (non\u2011)participation in the upcoming election.<\/p>\n 60. At the same time, the Court discerns no particular logic or substance in the applicant\u2019s ensuing discourse pertaining to the negative role of non\u2011Russian groups vis-\u00e0-vis the initial topic being discussed. His discourse could not be reasonably perceived as comments criticising any specific policy of the government, for instance as regards migration.<\/p>\n 61. Even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there is a sufficient \u201cfactual basis\u201d for the impugned statement: if there is not, that\u00a0value judgment\u00a0may prove excessive (see\u00a0Morice v. France [GC], no.\u00a029369\/10, \u00a7 126, ECHR 2015 and cases cited therein). The Court agrees with the domestic courts that the applicant\u2019s article furnished no such sufficient factual basis. There is nothing in the applicant\u2019s submissions before the domestic courts or this Court to supply any such basis for the sweeping remarks about residents of non-Russian ethnic groups in Krasnodar Region and negative stereotyping (compare Aksu, cited above, \u00a7\u00a7\u00a071 and 72).<\/p>\n 62. In this context it is questionable whether the content of the applicant\u2019s article was \u201ccapable of contributing to the public debate\u201d on the relevant issue (compare B\u00e9dat, cited above, \u00a7\u00a7 64-66) or that its \u201cprincipal purpose\u201d was to do so (compare Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy, cited above, \u00a7 174) in the present case, on the matter of voting in the election or abstaining from it.<\/p>\n 63. The Court also notes that the applicant\u2019s article was published in newspapers with distribution figures of 8,000 and 10,000 within the Sochi area, which as the trial court pointed out, albeit in a cursory manner, was situated in a \u201cmulti-ethnic region\u201d.<\/p>\n 64. 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\u2011Russian ethnicity. Thus, even though it was not considered that the article contained any explicit call for acts of violence or other criminal acts, it was within the national authorities\u2019 margin of appreciation to react in some manner (see the cases cited in paragraph 52 above).<\/p>\n 65. Lastly, the Court notes that the sentence in respect of the first publication of the impugned article was not enforced. As to the second publication of the same article, in the circumstances of the case the Court considers that the sentences were proportionate to the aims sought to be achieved.<\/p>\n 66. The nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 (see\u00a0Cump\u01cen\u01ce and Maz\u01cere v. Romania [GC], no. 33348\/96, \u00a7 111, ECHR 2004\u2011XI). The utmost caution must be exercised where the measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (ibid.). Although the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals\u2019 reputation, they must not do so in a manner that unduly deters the media from fulfilling their \u201cpublic watchdog\u201d role (for instance, by way of alerting the public to apparent or suspected misuse of public power as in Cump\u01cen\u01ce and Maz\u01cere, cited above, \u00a7 113). Investigative journalists are liable to be inhibited from reporting on matters of general public interest (for instance, such as suspected irregularities in the award of public contracts to commercial entities) if they run the risk, as one of the standard sanctions imposable for unjustified attacks on the reputation of private individuals, of being sentenced to imprisonment or to a prohibition on the exercise of their profession (ibid). The chilling effect that the fear of such sanctions has on the exercise of journalistic freedom of expression works to the detriment of society as a whole, is likewise a factor which goes to the proportionality, and thus the justification, of the sanctions imposed on an applicant, who was entitled to bring to the attention of the public an important matter of general interest (ibid, \u00a7 114).<\/p>\n 67. Although sentencing is in principle a matter for the national courts, the imposition of a custodial sentence (even a suspended one) for a media\u2011related offence will be compatible with journalists\u2019 freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see Sallusti v. Italy, no. 22350\/13, \u00a7 59, 7 March 2019, and Cump\u01cen\u01ce and Maz\u01cere, cited above, \u00a7\u00a0115). Prior restraints on the activities of journalists call for the most careful scrutiny and are justified only in exceptional circumstances (Cump\u01cen\u01ce and Maz\u01cere, \u00a7 118).<\/p>\n 68. The Court considers, however, that the context of the present case is different from that in Cump\u01cen\u01ce and Maz\u01cere, cited above.<\/p>\n 69. The applicant was sentenced to a non-negligible fine. The trial court also chose to impose an additional sentence consisting in prohibiting him from carrying out any journalistic or publishing activity.<\/p>\n 70. Importantly, the sentences in the present case were imposed in the context of the legislation aimed at fighting hate speech. In the specific context of the charges against the applicant the sentences were aimed at protecting the \u201crights of others\u201d, specifically the dignity of people of a non\u2011Russian ethnicity residing in the Krasnodar Region in Russia (compare Aksu, cited above, \u00a7\u00a7 44, 53-54, 61 and 81). The Court reiterates in this connection that the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention, to regulate the exercise of freedom of expression so as to ensure adequate protection by law in such circumstances and\/or where fundamental rights of others have been seriously impaired. Furthermore, the Court has already indicated its doubt as to whether the content of the applicant\u2019s article was \u201ccapable of contributing to the public debate\u201d on the relevant issue or that its \u201cprincipal purpose\u201d was to do so (see paragraphs 60-62 above). The Court further notes that Article\u00a0282 \u00a7 1 of the Criminal Code provided for a possibility to adjust the period for a prohibition to carry out a certain activity, which could be \u201cup to three years\u201d. As regards the applicant, the court limited this additional sentence to two years on account of the circumstances of the case.<\/p>\n 71. On the other hand, it is noted that at the material time the applicant was founder of Sochi\u2013Drugoy Vzglyad and only occasionally published articles in other local newspapers (such as Lazarevskaya Panorama), apparently, as a freelancer, apart from his main professional activity as an entrepreneur. The Court considers that it would not appear from the circumstances of the case that the prohibition to exercise journalistic or publishing activities for two years had any significant practical consequences for the applicant. The applicant did not argue otherwise before the Court.<\/p>\n 72. In view of the foregoing, the Court accepts that the present case discloses exceptional circumstances justifying the sentences imposed on the applicant (compare Stomakhin v. Russia, no.52273\/07, \u00a7\u00a7 127-32, 9\u00a0May\u00a02018). In particular, the Court considers that by prohibiting the applicant from carrying out a journalistic or publishing activity for two years, the domestic courts did not contravene in the present case the principle that the press must be able to perform the role of a public watchdog in a democratic society (see, by contrast, Cump\u01cen\u01ce and Maz\u01cere, cited above, \u00a7 119).<\/p>\n 73. The Court concludes that there has been no violation of Article\u00a010\u00a0of the Convention.<\/p>\n 74. Having reached this conclusion, the Court considers that it is not necessary to decide whether the present complaint should be dismissed with reference to Article\u00a017 of the Convention (see Stern Taulats and Roura\u00a0Capellera, cited above, \u00a7\u00a042; compare Perin\u00e7ek, cited above, \u00a7\u00a0282).<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 75. The applicant complained under Article 6 of the Convention that he had had no opportunity to question F., the philology specialist.<\/p>\n 76. The relevant parts of Article 6 of the Convention read as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …\u201d<\/p>\n A. The parties\u2019 submissions<\/strong><\/p>\n 77. The Government submitted that F.\u2019s report had been commissioned by the defence; the trial court had admitted it to the file alongside F.\u2019s statement submitted by the defence. F.\u2019s findings had been in line with the expert evidence incriminating the applicant and supporting the charge against him. The applicant had had ample opportunities to contest that evidence.<\/p>\n 78. The applicant submitted no observations in reply within the prescribed time-limit. In his application to the Court he had merely mentioned with reference to his statement of appeal (paragraph 26 above) that the trial court had not examined F.<\/p>\n B. The Court\u2019s assessment<\/strong><\/p>\n 1. Admissibility<\/em><\/p>\n 79. The Court notes that the complaint under Article 6of the Convention is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 2. Merits<\/em><\/p>\n 80. The applicable principles have been summarised by the Court in Matytsina v. Russia (no. 58428\/10, \u00a7\u00a7 166-69, 27 March 2014) and Constantinides v. Greece (no. 76438\/12, \u00a7\u00a7 37-39, 6 October 2016); see also Murtazaliyeva v. Russia [GC], no.36658\/05, \u00a7\u00a7 152-68, 18 December 2018 as regards \u201cwitnesses\u201d on behalf of the defence.<\/p>\n 81. Neither party has submitted to the Court a copy of F.\u2019s report or his written comments on it (none were mentioned in the trial judgment). The material before the Court does not support the Government\u2019s allegation that F.\u2019s report was commissioned by the defence. At the same time, the applicant considered F. as a \u201cdefence witness\u201d, apparently, in so far as his report had been admitted in evidence upon the defence\u2019s initiative, even though it contained findings that were not favourable to the defence (see paragraphs 17 and 26 above). The trial and appeal courts provided no reasons for dismissing the applicant\u2019s request to have F. examined.<\/p>\n 82. In the Court\u2019s view, irrespective of whether F.\u2019s eventual oral testimony at the trial could be treated as that of a \u201cwitness\u201d (either for the prosecution or for the defence), in the present case regard should be had to the overall fairness of the proceedings and, on that account, the complaint should be dismissed for the reasons stated below.<\/p>\n 83. In so far as it can be deduced from the relevant summaries in the trial judgment, F.\u2019s major findings were consistent with a number of expert reports commissioned in the criminal case (see paragraphs 13, 14 and 19 above). Those findings were unfavourable to the applicant. It is true that, unlike the expert reports, F. concluded that the applicant\u2019s article contained indirect calls to violent actions against the non-Russian population (see paragraph 17 above). This finding was not, however, taken up by the trial court when convicting the applicant. It appears that both the trial and appeal courts chose to rely primarily on the expert reports rather than F.\u2019s report, which, however, was mentioned among the evidence supporting the applicant\u2019s guilt. It has not been alleged, and the Court does not find, that the applicant was restricted in challenging those expert reports during the trial. In addition, it appears that F. had been interviewed during the pre-trial investigation. It remains unclear what questions the applicant wanted to put to F. during the trial or on appeal.<\/p>\n 84. The Court thus considers that, notwithstanding the courts\u2019 omission to state reasons for dismissing the applicant\u2019s request, in the particular circumstances of the present case the refusal to summon F. for examination in court in relation to the evidence produced by him (that is to say his specialist report) did not offend the overall fairness of the criminal proceedings in respect of the applicant under Article 6 \u00a7 1 of the Convention (see, by contrast, Kuveydar v. Turkey, no. 12047\/05, \u00a7\u00a7 44-47, 19 December 2017).<\/p>\n 85. The Court concludes that there has been no violation of Article 6 of the Convention in the present case.<\/p>\n FOR THESE REASONS, THE COURT<\/strong><\/p>\n 1. Joins, unanimously, the question whether Article 17 of the Convention is to be applied to the merits of the complaint under Article 10 of the Convention;<\/p>\n 2. Declares, unanimously, the complaints under Articles 6 and\u00a010 of the Convention admissible;<\/p>\n 3. Holds, by six votes to one, that there has been no violation of Article\u00a06 of the Convention;<\/p>\n 4. Holds, by six votes to one,that there has been no violation of Article\u00a010 of the Convention;<\/p>\n 5. Holds, unanimously, that it is not necessary to decide in the present case whether Article 17 of the Convention is to be applied.<\/p>\n Done in English, and notified in writing on 11 February 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stephen Phillips \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Paul Lemmens ____________<\/p>\n In accordance with Article 45 \u00a7 2 of the Convention and Rule 74 \u00a7 2 of the Rules of Court, the separate opinions of Judges Lemmens and Serghides are annexed to this judgment.<\/p>\n P.L. CONCURRING OPINION OF JUDGE LEMMENS<\/strong><\/p>\n 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.<\/p>\n 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.<\/p>\n 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.<\/p>\n 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\u00a010 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\u2019s 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\u00a02003\u2011IX (extracts); Norwood v. the United Kingdom (dec.), no.\u00a023131\/03, ECHR 2004\u2011XI; Hizb Ut-Tahrir and Others v. Germany (dec.), no. 31098\/08, 12 June 2012, \u00a7\u00a7 74-75 and 78; Kasymakhunov v.\u00a0Russia, no. 29604\/12, \u00a7\u00a7 113-114, 14 November 2013; M\u2019Bala M\u2019Bala v.\u00a0France (dec.), no. 25239\/13, \u00a7 42, ECHR 2015 (extracts); Belkacem v.\u00a0Belgium (dec.), no. 34367\/14, \u00a7 37, 27 June 2017; and Roj TV A\/S v.\u00a0Denmark (dec.), no. 24683\/14, \u00a7\u00a7 48-49, 17 April 2018). If, by contrast, the Court were to find that the applicant\u2019s 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.<\/p>\n 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\u2019s 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).<\/p>\n 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 \u201cnormal\u201d analysis of the Article 10 complaint, including an assessment of the proportionality of the interference.<\/p>\n The latter approach is possible when under the \u201cnormal\u201d 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.\u00a0Germany (dec.), no. 64496\/17, \u00a7\u00a7 20-21, 8 January 2019; \u0160imuni\u0107 v.\u00a0Croatia (dec.), no. 20373\/17, \u00a7 39, 22 January 2019; and (implicitly) Past\u00f6rs v. Germany, no. 55225\/14, \u00a7 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\u2019s objection based on Article 17 (see, for example, Vajnai v. Hungary, no. 33629\/06, \u00a7\u00a7 26 and 58, ECHR 2008; Fatullayev v.\u00a0Azerbaijan, no. 40984\/07, \u00a7\u00a7 81 and 105, 22 April 2010; Rubins v.\u00a0Latvia, no. 79040\/12, \u00a7\u00a7 49 and 93, 13 January 2015; Perin\u00e7ek v.\u00a0Switzerland [GC], no. 27510\/08, \u00a7 282, ECHR 2015 (extracts); Stern Taulats and Roura Capellera v. Spain, nos. 51168\/15 and 51186\/15, \u00a7 42, 13 March 2018; and Ibragim Ibragimov and Others v. Russia, nos. 1413\/08 and 28621\/11, \u00a7 124, 28\u00a0August 2018).<\/p>\n 3. In my opinion, it would have been possible for the Court to find that the applicant\u2019s statements were not covered by Article 17, and then to conclude that there had (nevertheless) not been a violation of Article\u00a010 (see, for a similar approach, F\u00e9ret v. Belgium, no. 15615\/07, \u00a7 82, 16 July 2009).<\/p>\n 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.\u00a034932\/04, \u00a7 87, 6 January 2011). In cases concerning Article 10 of the Convention, \u201cit 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\u201d (see Perin\u00e7ek, cited above, \u00a7 114; Roj TV A\/S, cited above, \u00a7 46; Ibragim Ibragimov and Others, cited above, \u00a7 62; and Past\u00f6rs, cited above, \u00a7 37). The decisive point under Article 17 is \u201cwhether the applicant\u2019s 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\u201d (see Perin\u00e7ek, cited above, \u00a7 115).<\/p>\n In the present case, \u201cthe 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\u201d (see paragraph 64 of the judgment). The applicant\u2019s 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 \u201ccall for hatred, violence or intolerance\u201d (see Perin\u00e7ek, cited above, \u00a7 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\u2019s articles can be read as containing such a call. The applicant merely vented his own frustration at the presence of \u201cnon-Russians\u201d. Article\u00a017 is therefore not applicable, and Article 10 is applicable.<\/p>\n 4. For the reasons developed in the judgment, I agree that the authorities had good reasons to react to the applicant\u2019s statements (see paragraph 64 of the judgment) and that there has been no violation of Article 10.<\/p>\n <\/p>\n DISSENTING OPINION OF JUDGE SERGHIDES<\/strong><\/p>\n 1. The present opinion is not a fully-fledged one, but rather a statement of opinion.<\/p>\n 2. Regrettably, I disagree with the Court\u2019s finding that there has been no violation of Articles 10 and 6.<\/p>\n 3. The applicant was convicted of inciting hatred and enmity and debasing the human dignity of a person or group of people on account of their ethnicity, and was sentenced to a prohibition on exercising any journalistic or publishing activities for two years and, in addition, to a fine of 200,000 Russian roubles (5,086 euros at the time) for each time his article had been published. It is to be noted that the article was published twice.<\/p>\n 4. Regarding Article 10, the Court in the present case adhered in principle to its previous well-established case-law on the interpretation of Article 10 \u00a7 2, according to which \u201cfreedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly\u201d (see paragraph 48 of the judgment). This is rightly stated, since it is a requirement or aspect of the principle of effectiveness that limitations or restrictions to rights should be construed strictly and narrowly. However, in my view, the Court followed only in theory, and not in practice, its previous approach regarding the interpretation and application of restrictions to freedom of expression. Although the Court stated that it was applying that approach to the facts of the present case, in my view it did not do so. I contend that the restrictions imposed on the applicant were not necessary in a democratic society; the interference complained of was based on reasons which in the light of the case as a whole were not \u201crelevant and sufficient\u201d to justify it. Furthermore, in my opinion, the sentence imposed on the applicant, prohibiting him from exercising any journalistic or publishing activities for two years (in addition to the penalty of a fine, which was also high), was disproportionate in the circumstances, thus violating the applicant\u2019s rights under Article 10 and the principle that the press must be able to perform the role of a public watchdog in a democratic society. This principle was enunciated, inter alia, in Cump\u0103n\u0103 and Maz\u0103re v. Romania ([GC], no. 33348\/96, ECHR 2004\u2011XI), where the Court considered \u201cthat by prohibiting the applicants from working as journalists as a preventive measure of general scope, albeit subject to a time-limit, the domestic courts contravened the principle that the press must be able to perform the role of a public watchdog in a democratic society\u201d (\u00a7 119).<\/p>\n 5. As regards Article 6 \u00a7 1, with due respect to the majority I maintain that the fact that the applicant was not afforded the opportunity to question witness F., a specialist in philology, undermined his rights as a defendant and offended the overall fairness of the criminal proceedings in respect of his rights under Article 6 \u00a7\u00a7 1 and 3 (d) and the principle of effectiveness. The right to examine witnesses under Article 6 \u00a7 3 (d) is a minimum right for everyone charged with a criminal offence. Not permitting the applicant to cross-examine witness F. rendered the protection of his right to a fair trial under Article 6 neither practical nor effective. Any other interpretation of Article 6 would not reflect its purpose and the notion of fair trial. That the evidence of this witness was not favourable to the applicant is clear from the judgment (see paragraphs 17, 26 and 81). The domestic courts provided no reasons for dismissing the applicant\u2019s request to have witness F. examined (see paragraphs 81 and 84 of the judgment), notwithstanding that witness F.\u2019s report had been admitted in evidence (ibid.), such that it was unavoidable that it had some influence on the domestic judges\u2019 thinking.<\/p>\n 6. Since I am in the minority, it would be a purely theoretical exercise to determine the amount of non-pecuniary damage I would award to the applicant for the above two violations. Hence, I will abstain from dealing with this issue.<\/p>\n ___________<\/p>\n [1] In his application before the Court the applicant argued, however, that the text reflected his own views as a private person (a voter), a newspaper\u2019s correspondent andleader of the local branch of the Democratic Party of Russia.
\nPaul Lemmens, President,
\nGeorgios A. Serghides,
\nDmitry Dedov,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nGilberto Felici,
\nErik Wennerstr\u00f6m,
\nLorraine Schembri Orland, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
\nRegistrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n
\nJ.S.P.<\/p>\n
\n[2] The fine for the second offence was then converted intotwo hundred hours of community work, on account of the applicant\u2019s failure to pay the fine.<\/p>\n