MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-34

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-34 Bryan and Others (Application No. 22515/14), Butkevich (Application No. 5865/07), Chemodurov group (Application No. 72683/01), Chirikov and Nekrasov group (Application No. 47942/17), Dzhavadov (Application No. 30160/04), Kazakov group (Application No. 1758/020, Kudeshkina (Application No. 29492/05), Obukhova (Application No. 34736/03), Saliyev (Application No. 35016/03), and Verzilov and Others (Application No. 25276/15) v. Russian Federation Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)362, DH-DD(2020)564, CM/Del/Dec(2021)1406/H46-28,CM/Del/Dec(2021)1419/H46-32

 

Application	Case	Judgment of	Final on	Indicator for the classification
22515/14	BRYAN AND OTHERS (List of cases CM/Notes/1514/H46-34-app)	27/06/2023	27/09/2023	CM-DEC-RUS
5865/07	BUTKEVICH	13/02/2018	02/07/2018	CM-DEC-RUS
72683/01	CHEMODUROV GROUP	31/07/2007	31/10/2007	CM-DEC-RUS
47942/17+	CHIRIKOV AND NEKRASOV GROUP	29/03/2022	29/03/2022	CM-DEC-RUS
30160/04	DZHAVADOV	27/09/2007	27/12/2007	CM-DEC-RUS
1758/02	KAZAKOV GROUP	18/12/2008	05/06/2008	CM-DEC-RUS
29492/05	KUDESHKINA	26/02/2009	14/09/2009	Urgent individual measures
34736/03	OBUKHOVA	08/01/2009	08/04/2009	CM-DEC-RUS
35016/03	SALIYEV	21/10/2010	21/01/2011	CM-DEC-RUS
25276/15	VERZILOV AND OTHERS	29/08/2023	29/11/2023	CM-DEC-RUS

Case description

These cases concern different aspects of the right to freedom of expression (Article 10).

Several cases concern journalists:

·     prevention of coverage of a public peaceful assembly (the police prohibited the applicant to take photos and arrested him, and the courts failed to assess the proportionality of the police actions (Butkevich));[1]

·     prevention of coverage of court proceedings (a judge imposed a blanket ban on any publication about the proceedings because another judge was involved as a party (Obukhova));

·     defamation proceedings, undermining the journalists’ role of a public watchdog, with notably disproportionate punishment for criticising politicians, and without due regard to various Convention principles, including: that boundaries of permissible criticism of politicians should be wider than those applicable to  private citizens or during the political debate; that executive bodies (unlike their individual members) are as a rule not allowed to bring defamation proceedings against the journalists, notably through Strategic Lawsuits against Public Participation (SLAPPs); that value judgments and statements of fact should be distinguished; and that criminal prosecution for journalistic activities should be limited to exceptional circumstances when speech is not protected by Article 10, such as hate speech or incitement to violence (Chemodurov group).

Two cases concern newspapers:

·     unsubstantiated refusal to register a newspaper on the basis of unforeseeably broad interpretation of the law (Dzhavadov);

·     domestic courts’ failure to include assessment of compliance with the right to freedom of expression in its consideration of a dispute concerning withdrawal from sales, in an act of the editor-in-chief “policy-driven censorship,” of a newspaper with an article on important “matter of public interest” (Saliyev).

Several cases concern artistic and other acts to draw attention to matters of significant public interest:

·     disproportionate penalties having chilling effect for attaching a wooden cross to the base of the bust of a historical figure (Mr F. Dzerzhinsky, a first director of Cheka and then NKVD, a predecessor of the KGB and current FSB), in the absence of any domestic courts’ assessment of a possible violation of the applicant’s right to freedom of expression (Chiriskov and Nekrasov);[2]

·     punishment for spitting on a photograph of a political figure, Vladimir Putin, even though it was not a crime (Karuyev);

·     attacks against members of an artistic feminist punk band by the so-called “Cossacks” from associations from the Krasnodar region, now formally involved in carrying out State service to assist the police in maintaining public order (Verzilov and Others);[3]

·     arbitrarily depriving the environmental activists from Greenpeace of liberty for climbing an offshore oil platform, reaching it by small boat from the ship Arctic Sunrise (Bryan and Others).[4]

The Kazakov group of cases concerns a violation on account of punishing the applicant for making a non-public complaint to a competent body about an allegedly partial and unlawful conduct of an official.

The case of Kudeshkina concerns a dismissal of a judge for making critical media statements about the judiciary. The Court found that this punishment was disproportionately severe and capable of having a “chilling effect” on judges wishing to participate in the public debate on the effectiveness of the judicial institutions (§ 100).

Status of execution

Between 2011 and 2015, the authorities have provided preliminary information in several cases from the Chemodurov group.[5] Several action plans had also been provided in the case of Kudeshkina. Since March 2022, after the Russian Federation’s exclusion from the Council of Europe, the authorities have stopped all communication concerning the execution of judgments.

Last examination by the Committee of Ministers

In this group of cases, only the Kudeshkina case was previously examined by the Committee, last time in December 2021. In its decisions, the Committee recalled that individual redress was still outstanding, which was also necessary to remove the general chilling effect on judges’ freedom of expression. The Committee noted that the practical impact of the general measures remained difficult to assess in the absence of concrete examples, as well as in the absence of individual redress to the applicant.[6]

Individual measures

Payment of just satisfaction is outstanding in 32 (out of 68) cases in the Chemodurov group, in Chirikov and Nekrasov (and in its repetitive case Karuyev) and Verzilov and Others.

Information on the reopening of the defamation cases was available on some early cases from the Chemodurov group:[7] reopening was not requested in Andrushko, Fechenko and Reznik; it was refused in Godlevskiy as it would not influence the outcome of the proceedings; and it was granted in Krasulya and Porubova, with the relevant convictions being quashed.

In Kudeshkina, the authorities were considering redress to the applicant (DH-DD(2021)362).

General measures

The authorities previously reported (before 2015) that some judgments had been translated into Russian, disseminated and published. In 2005, the Supreme Court had adopted Convention-compliant guidelines on some issues, and the Committee closed the relevant cases in 2008.[8] However, these issues have later re-emerged. The situation in these and other areas of freedom of speech is worsening, according to reliable sources, as outlined below.

The Council of Europe Platform for the Protection of Journalism and Safety of Journalists[9]

According to the Platform’s recent alerts,^[10] the full-scale invasion of Ukraine by Russia in 2022 gave a new impetus to undermining the freedom of expression in Russia. Independent journalism is routinely repressed under defamation, insult and ‘False Information’ laws. Notably, changes in the Criminal Code protect those who instigated or participated in the invasion. These include up to 15 years’ imprisonment for “spreading false information about the army”, up to seven years - for “discrediting the army”, up to three years - for calling for sanctions against Russia. Judicial control is no longer required for the General Prosecutor to revoke a media licence for “spreading false information about the army”, or for anti-war appeals. Only in July-September 2024, the authorities punished 11 journalists and two media outlets for criticising the army.

Rule 9 submissions

On 21 October 2024, Crew Against Torture made a Rule 9.2 submission (DH-DD(2024)1247) in the case of Verzilov and Others. They noted that, with the exception of one region, the use of force by associations of the so-called Cossacks, which essentially exercise public functions and act to assist the Russian police, were not regulated, resulting in arbitrary use of force and further limiting freedom of expression, as confirmed by many reports.

On 22 October 2024, Memorial Human Rights Defence Centre and OVD Info made a joint Rule 9.2 submission (DH-DD(2024)1299) in the cases of Bryan and Others, Chirikov and Nekrasov, and Verzilov and Others. They observed that similar violations continue in a deliberate attempt to completely shut down any discussion around the war of Russia against Ukraine. There were at least 132 criminal cases against authors of anti-war artistic and other performances since 2022, with, in particular, unreasonable and unlawful charges for vandalism (84 cases); discrediting the military (18 cases); rehabilitation of Nazism (12 cases); desecration of state symbols (9 cases); and hooliganism (5 cases).

Persecution of environmental activists has been intensified - while in 2020, protests against a limestone mine in Bashkortostan led to its closure, in early 2024, as a result of protests in the same region to free an environmental activist, Fail Alsynov, the protesters achieved nothing, 81 criminal and 395 administrative charges were filed, and two protesters died.

On 22 October 2024, Centre de la protection internationale made a Rule 9.2 submission
(DH-DD(2024)1282) in the case of Kudeshkina. It underlined that in Russia, judicial independence is increasingly under threat. Lack of freedom of expression of judges on matters of public importance severely compromises the independence and integrity of the judiciary, making it susceptible to political influence and manipulation. It suggested to reform the system of imposing disciplinary punishments on judges.

Observations and reports of UN and other international mechanisms

The excessive limitations on exercise of freedom of expression in Russia have been recently considered by various UN and other international mechanisms, including those of the OSCE and EU.[11] All express deep concern about the state of freedom of expression in Russia. The references are being made to, in particular, the recent national law provisions on prosecution of “foreign agents”, “extremism”, “undesirable organisations”, “fake war news,” “public discreditation” of the army or the authorities, and “calls for sanctions”. Among the specific observations, the UN Human Rights Committee expressed its deep concern that with regard to the war of Russia against Ukraine, the journalists now must report only information provided by the authorities, while the independent media unions have been dissolved.[12] In the Second Katzarova Report it has been highlighted that at least 1,372 human rights defenders, journalists and anti-war critics have been detained on politically motivated charges and sentenced in sham trials to lengthy imprisonment, often with treatment amounting to torture; the domestic court statistics for the first six months of 2024 show 86 decisions imposing coercive psychiatric treatment on politically-motivated grounds; at least five Russian Orthodox priests have been convicted for opposing the war on religious grounds[13].

Analysis of the Secretariat

The Committee continues to supervise the execution of the judgments and friendly settlements against Russia and it is required to implement them (§ 7, CM/Res(2022)3). In this connection, the Committee may deeply deplore that the Russian authorities have ceased all communication with the Committee of Ministers concerning the execution of judgments. In this context, Rule 9 submissions of NGOs can be welcomed as it is a vital source of information in the absence of communication from the authorities.

Some aspects of freedom of expression in Russia are not considered at this meeting because they have been recently considered by the Committee (notably the cases concerning freedom of expression online or abusive application of the anti-extremism laws),[14] or because the relevant judgment from the Court has been adopted too recently,[15] or because they concern specific complex issues, which necessitate separate examination,[16] or because they concern violations other than that of Article 10, although they also had a negative impact on freedom of expression.[17]

Individual measures

The authorities remain under a legal obligation to pay the just satisfaction in all cases. They should also consider reopening of the cases in which the applicants are suffering from consequences of the violations, and to quash the convictions violating the Convention.

With regard to the case of Kudeshkina, individual redress to the applicant is still outstanding. This would also have an effect as a general measure, to remove the chilling effect on judges’ right to freedom of expression, which should be accompanied by evidence of effectiveness of other general measures to ensure that right.

General measures

In Russia, hundreds of presumably innocent people are being prosecuted or jailed under the new repressive laws for allegedly being "foreign agents", “extremists” or members of “undesirable organisations”,[18] spreading "fake news" about the war, or “calling for sanctions against Russia”. These repressions run counter to the conclusions and spirit of the judgments in question and for as long as the laws and practices they are based on persist, they would seem to render futile any attempt to resolve the specific problems highlighted by the Court’s judgments. Various reliable sources referred to above, including reports of international organisations and Rule 9 submission from the NGOs, point to the existence of large-scale violations of the right to freedom of expression in Russia.

In these circumstances, and based on their legal obligation to execute relevant judgments of the Court and to prevent similar violations, the Russian authorities should repeal these laws and practices as a necessary prerequisite to any further, meaningful general measures in these cases; this should include redressing the situation of all those convicted on the basis of these laws and practices in breach of their right to freedom of expression (dropping criminal cases, releasing those deprived of liberty for having exercised  their freedom of expression, issuing apologies, paying compensations and adopting other rehabilitation measures to victims of these repression). 

 

Only after would it be possible for the authorities to address the specific violations of the Convention identified by the Court in its judgments, including:

·         Journalists must be able to report freely on public assemblies and the limitation of this right must be subject to close scrutiny (Butkevich, §§ 130, 134). They should also be able to report freely about open judicial proceedings - justice must not only be done, it must also be seen to be done. While limits on reporting are possible, a total ban is not (Obukhova, § 27).

·         The authorities should ensure the journalists’ right to criticise officials and politicians, in line with the principles highlighted in the Chemodurov group of cases:

o    Criminal prosecution of journalism should be limited to expression not protected under Article 10, for example, to cases of hate speech or incitement to violence (Grebneva and Alisimchik, § 65).

o    Boundaries of journalistic permissible criticism should be wider if it concerns a politician, or during the political debate (OOO Memo, § 41, Dyuldin and Kislov, § 49).

o    Value judgments and statements of fact should be distinguished (Margulev, § 52).

o    The executive bodies (unlike their individual members), as a rule, should not be able to sue the media for defamation (OOO Memo, §§ 47, 48; Dyuldin and Kislov, § 43), notably through abusive Strategic Lawsuits against Public Participation (SLAPP), which aim to initiate court proceedings only to restrict free expression on matters of public interest.[19]

·         The authorities should ensure that there is no punishment for making a non-public complaint to a competent body about allegedly partial and unlawful conduct of an official (Kazakov, § 29).

·         The newspapers should be registered without undue obstacles based, for example, on an unforeseeably broad interpretation of the law (Dzhavadov, § 40).

·         The right to freedom of expression should be taken into account by the courts in all disputes concerning media raising matters of public interest (Saliyev, § 77).

·         The authorities should also protect peaceful artistic and other actions, even if they offend, shock or disturb, notably when they draw attention to matters of public interest. They should not punish performances that are lawful (Karuyev, § 24) or impose punishments in a way that limits freedom of expression (Chirikov and Nekrasov, § 10) or have a chilling effect on it.

·         They should ensure that force is not used against the peaceful exercise of freedom of expression, with accountability for any excessive use of force. They should ensure the rights of environment protection activists to peaceful artistic and other actions, notably excluding their arbitrary arrest (Bryan, § 97).

·         Furthermore, the rule of law should reign with respect to all law enforcement units, as well as associations of the so-called Cossacks: the Court underlined that they were involved in carrying out State service and the State was responsible for regulating their activities appropriately, for their training and supervision (Verzilov and Others, § 101). If necessary, status of these associations should be reconsidered under domestic law. In particular, the Advisory Committee on the Framework Convention for the Protection of National Minorities once considered with regard to these so-called Cossacks’ associations that the delegation of law-enforcement to one group of the population is problematic as such.[20]

All of the legislative changes required should be complemented by Convention-compliant guidance from the Supreme Court and developments in the judicial practice and in practice of the prosecutorial authorities. Awareness raising activities would also be required for executive officials, judges and journalists.

Financing assured: YES