CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 octobre 2017

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RUSSIA   (Application no. 42168/06)             JUDGMENT         STRASBOURG   3 October 2017     FINAL   29/01/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Dmitriyevskiy v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Branko Lubarda, President ,   Luis López Guerra,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Georgios A. Serghides,   Jolien Schukking, judges , and Stephen Phillips, Section Registrar, Having deliberated in private on 5 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 42168/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Stanislav Mikhaylovich Dmitriyevskiy (“the applicant”), on 25 September 2006. 2.     The applicant was represented by Ms O.   Sadovskaya, a lawyer practising in Nizhniy Novgorod. The Russian Government (“the Government”) were initially represented by Ms V.   Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and then by Mr M.   Galperin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that his criminal conviction for the publication of articles in a newspaper of which he was the chief editor had constituted a violation of his freedom of expression secured by Article   10 of the Convention. He also complained under Articles 6 and 13 of the Convention of various irregularities in the criminal proceedings against him and a lack of effective remedies in that respect. 4.     On 6 February 2007 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1966 and lives in Nizhniy Novgorod. 6 .     At the material time he was the executive director of the Russian ‑ Chechen Friendship Society ( Общество российско-чеченской дружбы ), a non-governmental organisation which monitored human rights violations in the Chechen Republic and other parts of the North Caucasus. He was also the chief editor of a monthly newspaper, Pravo-Zashchita ( Protection of Rights), with a circulation of 5,000. The newspaper was published and distributed mainly in the Nizhniy Novgorod Region. At the end of each issue there was a standard disclaimer stating that the views of the editorial team might not concur with those expressed in the articles published. A.     The first article 7.     In early 2004 the applicant obtained two articles from the website Chechenpress. The first, which had the headline “Address by Akhmed Zakayev, Vice Prime Minister of the Government of the Chechen Republic of Ichkeria, to the People of Russia” («Обращение вице-премьера правительства Чеченской Республики Ичкерия Ахмеда Закаева к российскому народу» – “the first article”), was published by him in issue no. 1   (58) of Pravo-Zashchita for March 2004. It read as follows: “A year ago a peace process that had just begun was interrupted by the tragic events in the Dubrovka [theatre]. There may be long arguments as to who was responsible for that tragedy, but there is no dispute as to who benefited from it. Today, on behalf of Aslan Maskhadov, President of the Chechen Republic of Ichkeria, I am again addressing myself to the people of Russia. It is still not too late for us to resolve all the questions at issue. But for this, the people of Russia should get rid of those for whom peace represents the loss of power or perhaps even a trial. As long as they remain in the Kremlin, blood will continue to flow in Chechnya and in Russia. I am extending to the people of Russia the hand of peace over the head of their president. No one needs the war except for him: neither right nor left, neither poor nor rich. Vladimir Putin left the Chechens no choice, but you have a choice and you may still choose peace by voting against Putin in March 2004. Both for you and for us this is a real opportunity.” 8.     The article was accompanied by the editorial team’s comments ( от редакции ), which read as follows: “For reasons beyond the editorial team’s control, we are publishing this document belatedly. This address was made on the eve of the presidential elections in Russia. Unfortunately, the people of Russia did not avail themselves of their historic opportunity, having again elected as their president a man who has made political capital out of a bloody war against his own people and who is leading the country towards the blind alley of a police state. Nevertheless, we are convinced that this document, which represents the legitimate Chechen authorities’ statement to the outside world, has not lost its topicality in the meantime”. B.     The second article 9.     The second article, which had the headline “Address by Maskhadov, President of the Chechen Republic Ichkeria, to the European Parliament” («Обращение Президента Чеченской Республики Ичкерия Масхадова к Европарламенту» – “the second article”), was published by the applicant in issue no. 2   (59) of Pravo-Zashchita for April and May 2004 and read as follows: “On 26 February 2004 the Parliament of the European Union adopted a declaration in which Stalin’s deportation of the Chechen people on 23 February 1944 was officially recognised as an act of genocide. The European Parliament also recommended that the European Council study the plan of the Government of the Chechen Republic of Ichkeria (the CRI) on peaceful resolution of the present military conflict [between Russia [1] and Chechnya], which I had approved. The total deportation to Central Asia and Kazakhstan in 1944 is one of the most tragic pages in the entire centuries-old history of the Chechens, since during this act of violence the national republic was completely liquidated and its territory separated among the adjacent regions. During the 13 years which the Chechen people spent in exile, about 70% of the population died. It must be mentioned that the 1944 deportation was the ninth large-scale act of genocide by the military and political authorities of Imperial Russia during the period of the 400-year-long armed confrontation between the Chechens and Russians. The very first deportation of the Chechens was carried out by Russia as early as in 1792, after the destruction of the State headed by the first Imam of the Caucasus, Sheikh Mansur. And after the destruction of the State headed by Imam Shamil, when the Russian-Caucasian war was officially declared to be over in 1859, a considerable proportion of Chechens ended up on the territory of the Ottoman Empire. The last tsarist deportation was the expulsion of many Chechen families to cold and faraway Siberia in 1913. And the first mass deportations of the Chechens during the Soviet regime began in the years of collectivisation and cultural revolution, in other words during Stalin’s regime. What is the aim of this historical overview? The Government of the CRI regards this political resolution by the European Parliament as an undoubtedly serious historic act on the way to achieving the long-awaited peace on blood-stained Chechen soil. More than a quarter of a million innocent civilians have already died in the CRI during the latest continuing Russian-Chechen war, the entire infrastructure of the republic has been completely devastated, many towns, villages, schools, hospitals and cultural facilities have been destroyed, and there is still no light at the end of the tunnel. Yet the international community is watching the deliberate and systematic murder of the entire nation with complete serenity and has not the slightest desire to react in any way to this criminal madness by the bloody Kremlin regime. This in turn engenders thousands and thousands of new fighters in the republic, who replenish the ranks of the Chechen Resistance with fresh forces each day, and who believe that they have a moral right to use the enemy’s own methods against the enemy, [an approach] which we unequivocally condemn. Even on this mournful date – the 60th anniversary of the deportation – many Chechens marked the occasion in extremely harsh conditions of unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks by Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years. As the legitimately elected President of the Chechen Republic of Ichkeria, I express, on behalf of the recalcitrant Chechen people fighting for their freedom, sincere gratitude to all the members of the European Parliament who took this fundamental decision to recognise the deportation of 1944 as an act of genocide... Today, just as 60 years ago, the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people, one of the indigenous nations of the ancient Caucasus, and this in the end may lead to [the Chechens’] total physical disappearance from the face of the earth. Your decision in defence of the Chechen people, living in a situation of ongoing genocide, is an additional moral incentive in the fight for survival. We are always open to constructive dialogue with the international community, and we invite independent experts from the United Nations and the European Union to monitor the situation with their own eyes, so that the groundless and defamatory attacks on the Chechens by Russia’s propagandists, who insolently continue to pester the PACE, OSCE and other authoritative organisations, can no longer distort the real picture in the Chechen Republic of Ichkeria. There is no doubt that the Kremlin is today the centre of international terrorism, and [the Kremlin] selected Chechnya and the Chechens as targets for testing terrorist methods which are being developed by the [Federal Security Service]. It would be naive to believe that the present regime in Russia would be too shy to use its terrorist experience in the international arena to solve its political and other problems. An example of this is the treacherous and cowardly terrorist attack by Russia’s special services in the State of Qatar, which prematurely took the life of my predecessor, Zelimkhan Yandarbiyev, and was carried out with the use of diplomatic channels. Owing to the wide publicity given to the latest events concerning the Khanbiyev family, you have become witnesses to one of the numerous terrorist methods used by the State party of Russia, notably taking hostages from the civilian population. In the majority of cases, hostages disappear without trace, and their bodies, showing traces of torture, are later discovered in secret graves that can be found all across the territory of Chechnya. The genocide of the Chechen people, which continues in the 21st century, is a direct and impertinent challenge to all of progressive mankind, let alone civilised and democratic Europe, which considers human rights as its main value and priority, thus making the human factor of paramount importance and the most valuable achievement of civilisation. We would therefore like to believe that the Chechen people have a right to hope that you will soon recognise the war which the Putin regime imposed on Chechnya as genocide – a war which, in its scale, refinement, vandalism and inhumanity, overshadows the genocide of 1944. I sincerely believe in the triumph of reason and justice on earth, and in the final victory of the Chechen people. The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders and their accomplices among local nation-traitors. The Chechen Resistance will inevitably accomplish it! Whatever the costs! No one in the world should have any doubt about this!” C.     Investigation in connection with the published articles 10.     On 28 November 2004 an officer from the prosecutor’s office of the Nizhniy Novgorod Region ( прокуратура Нижегородской области – “the regional prosecutor’s office”) reported that he had established that the articles written by unidentified authors contained public appeals to extremist activity – most notably to overthrow the State regime and forcibly change fundamental aspects of Russia’s constitutional system. 11.     The applicant was interviewed in connection with his publication of the articles. He stated that he supported the assessment given by Akhmed Zakayev in his article of the role of Mr V. V. Putin, the President of Russia, in the history of Russia over the last several years. He also stated that he strongly supported his appeal to stop the war and to resolve the military conflict in the Chechen Republic in a peaceful political way, having made a commentary to that effect after the article. As regards the second article, the applicant explained that he had considered the material to be of great public importance for the people of Russia so had published it. He added that he had intended to convey to the readers the position of the leaders of one of the parties to the military conflict in the Chechen Republic as he had considered that, in the light of the continuing tragedy in the Northern Caucasus and terrorist threat, citizens should be entitled to have an idea of that position first hand rather than having the situation presented to them by Russia’s mass media, which only reflected the point of view of the authorities of Russia. 12.     On 11 January 2005 the regional prosecutor’s office instituted criminal proceedings under Article 280   §   2 of the Criminal Code (public appeals to extremist activity through the mass media). The applicant was questioned on several occasions as a witness. 13.     In reports dated 18 February 2005 Ms T., a linguistic expert, stated that the articles in question contained no appeals to extremist activity but rather were aimed at inciting racial, ethnic and social discord ( рознь ), associated with violence (see paragraphs 20-27 below). Following that conclusion, the authorities decided to conduct a further investigation under Article   282   § 2 of the Criminal Code (incitement to hatred ( ненависть ) or enmity ( вражда ) and the humiliation of human dignity). 14.     In a witness interview on 25 April 2005 the applicant stated, inter alia , that he had published the two articles as he had considered the material to be of great public significance and had intended to apprise readers in the Nizhniy Novgorod Region of them. He had not pursued any other aim. He also stated that he had taken the decision to publish the articles, without being asked by anyone. In his opinion, the articles were decent and reflected their authors’ point of view. He disagreed with the conclusions of the expert reports of 18 February 2005 that the articles contained statements aimed at inciting enmity between the Russians and the Chechens, or statements humiliating the human dignity of the Russians on the grounds of their ethnic origin. He also affirmed his principal position regarding that issue, namely that the actions of the Government of Russia and its armed forces during the conflict in the Chechen Republic should be regarded as a war crime and a crime against mankind. The applicant further stated that he had considered that the publication of the articles promoted friendship and peace between the people of Russia and the Chechen people. Lastly, he denied that he had obtained any payment for publishing the articles. During subsequent interviews the applicant consistently maintained his position. 15.     By a decision of 5 May 2005 the investigator in charge suspended the proceedings as those responsible remained unidentified. The decision referred to the statements the applicant had made during witness interviews to the effect that he had obtained the impugned documents from a website and published them with a view to apprising readers in the Nizhniy Novgorod Region of them. The decision further stated that no evidence capable of refuting the applicant’s arguments had been obtained during the investigation. It went on to say that there was evidence of a crime under Article 282   § 1 of the Criminal Code in the actions of those who had published the documents online; however, since they remained unidentified the investigation had to be suspended. 16.     The decision of 5 May 2005 was quashed by a deputy prosecutor of the regional prosecutor’s office and the proceedings were resumed on 9 July 2005. 17.     On 2 September 2005 the applicant was formally charged under Article 282   § 2 of the Criminal Code and banned from leaving his place of residence. On the same date the investigator in charge refused a request by him for another linguistic expert examination of the articles, stating that the conclusions in the reports of 18 February 2005 were well-reasoned and consistent. 18.     By a decision of 26 September 2005 the investigator in charge refused a request by the applicant for a comprehensive expert examination of the articles involving linguistic experts and historians including the history, culture and traditions of the Chechen people. The grounds for the refusal were similar to those stated in the decision of 2 September 2005. 19.     On 29 September 2005 an indictment was served on the applicant and the case file was sent for trial. D.     Expert reports of 18 February 2005 20 .     In the context of the criminal proceedings against the applicant, the investigating authorities ordered a linguistic expert examination of the articles published by him. An expert was requested to answer whether they contained any appeals to extremist activity and, in particular, whether there were any appeals to activity aimed at advocating the exceptionality, supremacy or inferiority of citizens on the grounds of their racial, ethnic or social origin. The expert was also requested to reply whether the articles contained statements aimed at inciting hatred or enmity or humiliating the dignity of an individual or a group of individuals on the grounds of their race, ethnic origin, language, origin, attitude towards religion, or membership of a certain social group. 21 .     On 18 February 2005 Ms T. drew up two expert reports. In a report on the linguistic expert examination of the first article, she pointed out that the text contained statements in the affirmative to the effect that “the tragedy in the Dubrovka [theatre] and the war in Chechnya [were] beneficial for Vladimir Putin”, that “the cessation of war and a peace agreement with the leaders of the [Chechen Republic of Ichkeria meant] the loss of power for V. Putin”, and that “until V. Putin [guided] the State, blood [would] continue to flow in Chechnya and Russia”. The report then referred to the following statement: “It is still not too late for us to resolve all the questions at issue. But for this, the people of Russia should get rid of those for whom peace represents the loss of power or perhaps even a trial. As long as they remain in the Kremlin, blood will continue to flow in Chechnya and in Russia.” According to the report, that statement, analysed in the context of the whole article, contained a demand by the author to the people of Russia not to vote for Vladimir Putin in March 2004. It went on to note that the author was also promising that, otherwise, killings and terrorist acts would be carried out in Chechnya and in Russia (“blood will continue to flow...”), verbally threatening the people of Russia. On the basis of that analysis, Ms   T. concluded that the above-mentioned statement was aimed at inciting racial, ethnic or social discord, associated with violence. The report provided no further details in respect of that conclusion. It also stated that the article contained no appeals to extremist activity or any statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnic origin. 22 .     The other report of 18 February 2005 concerned a linguistic expert examination of the second article and stated that the following statements were aimed at inciting racial, ethnic and social hostility, associated with violence: “...the 1944 deportation was the ninth large-scale act of genocide by the military and political authorities of Imperial Russia...” “The very first deportation of the Chechens was carried out by Russia as early as in 1792...” “More than a quarter of a million innocent civilians have already died in the [Chechen Republic of Ichkeria] (the CRI) during the latest continuing Russian-Chechen war...” “...the international community ... has not the slightest desire to react in any way to this criminal madness by the bloody Kremlin regime...” “...the 60th anniversary of the deportation ... many Chechens marked ... in extremely harsh conditions of unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks by Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years...” “Today, just as 60 years ago, the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people...” “...we invite independent experts from the United Nations and the European Union to monitor the situation with their own eyes, so that the groundless and defamatory attacks on the Chechens by Russia’s propagandists... can no longer distort the real picture in the Chechen Republic of Ichkeria...” “There is no doubt that the Kremlin is today the centre of international terrorism, and [the Kremlin] selected Chechnya and the Chechens as targets for testing terrorist methods which are being developed by the [Federal Security Service]...” “It would be naive to believe that the present regime in Russia would be too shy to use its terrorist experience in the international arena to solve its political and other problems...” “An example of this is the treacherous and cowardly terrorist attack by Russia’s special services in the State of Qatar, which prematurely took the life of ... Zelimkhan Yandarbiyev...” “...you have become witnesses to one of the numerous terrorist methods used by the State party of Russia, notably taking hostages from the civilian population...” “We would therefore like to believe that the Chechen people have a right to hope that you will soon recognise the war which the Putin regime imposed on Chechnya as genocide...” “The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders and their accomplices...” 23.     The report stated that in all those statements the author of the article was directly pointing out that it was Russia and its invaders, military and political authorities, special services and State party who were carrying out “genocide”, “unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks”, and that it was they who were “committing excesses”. It also indicated that “the expression ‘State party [of Russia]’ should be understood to mean a designation of a group of people, organisation or State set in contrast in some aspect to another group of people, organisation or State (in the present case, to Chechnya)”. 24.     The report also pointed out that the last three sentences of the articles were exclamatory and expressed the author’s contemptuous and angry attitude. According to the report, the three sentences were “an undisputable and unequivocal statement to the effect that the Chechen Resistance [would] inevitably liberate their soil of Russia’s servicemen”. The report went on to state that the expression “Whatever the costs!” referred to the means and methods (“to use the enemy’s own methods against the enemy”, “terrorist methods”), and that it was of little importance whether those methods were condemned by the author or not, as the author’s “protective reservation” “to use the enemy’s own methods against the enemy, [an approach] which we unequivocally condemn” did not change the true meaning of the aforementioned expression. 25.     T. also considered it necessary to note that the article contained a number of statements with contemptuous, angry stylistic connotations expressing a distinctly negative assessment of the actions of Russia’s servicemen and governance of the military and political authorities of Russia, such as “this criminal madness by the [bloody] Kremlin regime”, “Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years”, “the Kremlin is today the centre of international terrorism” and “the Putin regime”. 26.     The report went on to note that the article in question also contained statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnic origin, namely: “...the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people, one of the indigenous nations of the ancient Caucasus...” “The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders...” 27 .     Lastly, the report concluded that the article contained no appeals to extremist activity. E.     Proceedings before the courts 1.     Trial 28.     At a hearing, the applicant denied the charges. He confirmed that he had decided to publish the articles in question in the newspaper Pravo-Zashchita himself and supported the views expressed in them. He further argued that it had been his responsibility as a journalist to inform his readers of the position of the other party to the Chechen conflict and of possible means to its peaceful resolution. According to the applicant, he had acted in the name of peace and friendship between various nations in Russia. He confirmed that he supported the ideas expressed in the articles. 29.     The applicant’s defence submitted a report by a linguistic expert, Ms   V., which they had obtained at their own request at the investigation stage. It stated that the two articles in question could not be regarded as inciting racial or national hatred and discord. Before the trial court, the applicant argued that Ms T.’s conclusions in the reports of 18   February 2005 were hypothetical and that she had not taken into account scientific recommendations for investigating the type of criminal offence with which he had been charged. The applicant also insisted that Ms T. had exceeded her competence as she had given a legal qualification to his actions. He also pointed to discrepancies between the reports by Ms T. submitted by the prosecution and the report by Ms V. submitted by the defence. 30.     A number of witnesses examined at the trial gave positive references about the applicant, stating that he was a man of good character and spoke out in favour of a peaceful resolution of the conflict in the Chechen Republic. 31.     Both experts were also cross-examined during the trial. The applicant submitted an audio recording of Ms T.’s cross-examination, which he had made at the trial. It appears from the recording that, in reply to the applicant’s questions, Ms T. refused to give definitions of the notions of “race”, “ethnic origin” and “social group”, stating that it fell outside of her field of expertise. 2.     Judgment of 3 February 2006 32 .   In a judgment of 3 February 2006 the Sovetskiy District Court of Nizhniy Novgorod (“the District Court”), sitting in a single-judge formation composed of Judge B., established that, in breach of sections 51 and 59 of the Mass Media Act, the applicant, “acting intentionally and using his official position as chief editor, [had] decided to publish two articles which contained statements aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, ethnic origin and membership of a certain social group”. The court then quoted the expressions referred to in the expert reports of 18 February 2005 (see paragraphs 21-22 above) and observed that 5,000 copies of each of the two issues in which the articles had been published had been distributed in Nizhniy Novgorod, Moscow, Voronezh, Kazan and the Republic of Ingushetia. 33 .     The District Court found that the applicant’s guilt had been proven “by witness statements and the case material, [in particular] by the conclusions of the forensic expert examinations, according to which the texts [of the impugned articles contained] no appeals to extremist activity, but [contained] statements aimed at inciting racial, ethnic or social discord, associated with violence”. On the basis of the evidence adduced to it, the District Court found it necessary to classify the applicant’s actions as those punishable under Article 282 § 2 (b) of the Criminal Code, namely those aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, ethnic origin, membership of a social group, committed through the mass media by a person using his official position. 34 .     The trial court then found that, “acting with direct intent, being aware of the nature of his actions and wishing to carry them out, [the applicant], on his own, [had taken] a decision to publish two articles which had, as their basis, statements aimed at inciting enmity and humiliating the dignity of persons on the grounds of race, ethnic origin and membership of a social group”. It observed that “during the trial [the applicant had] repeatedly expressed his support for the points of view reflected in the published articles” and had “pointed out that he [had been] carrying out his duty as a journalist by so doing”. In the court’s opinion, however, the arguments advanced by the applicant in his defence were “untenable from a legal point of view and should be regarded as [his] attempt to defend himself to avoid punishment for the committed offence of medium gravity”. The witness statements in the applicant’s favour were held “to concern only the applicant’s personality” and to be “irrelevant for the present criminal case”. 35 .     The District Court further pointed out that it had based its guilty verdict “on the lawful and well-founded expert reports [of 18 February 2005], in which [Ms T. had] thoroughly analysed the texts of both articles in their entirety and made a conclusion as to the presence in [them] of statements aimed at inciting racial, ethnic and social discord”. The court considered that it had no reason to doubt or question the conclusions of the expert reports given, in particular, “Ms T.’s competence, professional skills and [past] experience.” 36.     The District Court further rejected the report by Ms V. as defective, saying that it was superficial and formalistic and that the expert examination in question had been carried out without due regard to an analysis of the texts. The court also noted in this connection that the applicant had paid for the report and that Ms V. had not been informed of the relevant provisions of procedural legislation which criminalised the drawing up of knowingly false expert reports. 37.     The trial court found it necessary to exclude from the charges against the applicant reference to “the statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnicity” “in the absence of such wording in the provisions of Article   282 of the Russian Criminal Code”. 38 .     As regards the punishment to be imposed on the applicant, the court had regard to the nature and social dangerousness of the offence with which he had been charged and the fact that he had no criminal record, had positive references and had two dependent children. It also stated that there was no evidence at that time that “[his] illegal actions had entailed any serious consequences”. The court therefore considered it appropriate to give the applicant a two-year suspended sentence and four years’ probation. 3.     Trial record 39.     On 9 February 2006 the applicant applied to the District Court to have the trial record amended. He complained that Ms T.’s testimony, which was of crucial importance to his case, had been distorted in the record and that, in particular, it attributed certain statements to her which she had not made at the trial. He pointed out, more specifically, that during the trial Ms T. had refused, in reply to his questions, to give definitions to the notions of “race”, “ethnic origin” and “social group”, stating that it was outside of her competence as a linguist and rather fell within the competence of a sociologist or historian. However, according to the official trial record, Ms T. had defined the aforementioned notions. The applicant also asked the court to include in the case file a copy and transcript of the audio recording of the first-instance hearings, made by the defence, indicating the discrepancies between the actual statements made by Ms T. and those reflected in the trial record. 40.     By a decision of 13 February 2006 Judge B. of the District Court rejected the applicant’s application. He noted that the trial record had been made in compliance with procedural law and fully reflected the actual testimony given by all witnesses. The judge further stated that neither the applicant nor his lawyer had notified the District Court of the audio recording of Ms T.’s cross-examination at the trial or requested that the court include it in the case file, and that there were no legal grounds at that time for entertaining the applicant’s application. 4.     Appeal proceedings 41.     On 9, 10 and 13 February 2006 respectively the applicant’s two lawyers and the applicant lodged appeals against his conviction. 42.     On 17 February 2006 the applicant filed supplementary appeal pleadings, reiterating his complaints concerning the shortcomings in the trial record with respect to Ms T.’s testimony and requesting that the appellate court examine the audio recording made during the trial of Ms T.’s statements and establish the discrepancy between them and those reflected in the trial record. 43.     By a letter of 21 February 2006, Judge B. returned the applicant’s supplementary pleadings, stating that, in substance, they reflected his remarks in respect of the trial record, which had already been examined and rejected on 13 February 2006. 44.     On 1 March 2006 the applicant resubmitted his supplementary pleadings of 17   February 2006 to the Nizhniy Novgorod Regional Court (“the Regional Court”) and complained about Judge B.’s refusal to accept them. In a letter of 13 April 2006 the Regional Court informed the applicant that it had accepted his pleadings of 17 February 2006 for examination and had examined them during an appeal hearing on 11 April 2006, and therefore the breach of his right of appeal against the judgment of 3   February 2006 had been remedied. The letter also stated that Judge B.’s actions when he had unlawfully returned the applicant’s supplementary pleadings of 17 February 2006 would be discussed by the Regional Court, but that at the same time there were insufficient grounds for instituting disciplinary proceedings against him. 45 .     In its decision of 11 April 2006 the Regional Court found the judgment of 3 February 2006 reasoned and well-founded and upheld it on appeal. It reiterated the reasoning of the trial court, stating that the applicant’s guilt for the offence with which he had been charged had been proven by the body of evidence examined during the trial – his own statements in which he had admitted having published the impugned articles and the expert reports of 18 February 2005. The Regional Court endorsed the trial court’s argument that there was no reason to question the conclusions of those reports. It also stated that the trial court had addressed Ms V.’s report, which had been favourable to the applicant, having assessed it critically. F.     The applicant’s complaints against Judge B. 46.     In February and March 2006 the applicant unsuccessfully attempted to have disciplinary and criminal proceedings instituted against Judge B. for alleged falsifying the trial record, exceeding his powers and obstructing justice. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Legal acts 1.     Criminal Code 47.     Article 282 of the Criminal Code (incitement to hatred or enmity and the humiliation of human dignity) provides, as follows: “1.     Actions aimed at inciting hatred or enmity and humiliating the dignity of an individual or a group of individuals on the grounds of gender, race, ethnic origin, language, background, religious beliefs or membership of a social group, committed publicly or through the mass media, shall be punishable by a fine of 100,000 to 300,000 Russian roubles, or an amount equivalent to the convicted person’s wages or other income for a period of one to two years, by withdrawal of the right to hold certain posts or carry out certain activities for a period of up to three years, by compulsory labour of up to 180 hours or by correctional labour of up to one year, or by a deprivation of liberty of up to two years. 2.     The same actions, if committed: (a)     with the use of violence and the threat of its use; (b)     by a person using his or her official position; (c)     by an organised group, shall be punishable by a fine of RUB 100,000 to 500,000 or an amount equivalent to the convicted person’s wages or other income for a period of one to three years, by withdrawal of the right to hold certain posts or carry out certain activities for a period of up to five years, by compulsory labour of 120 to 240 hours or by correctional labour of one up to two years, or by a deprivation of liberty of up to five years.” 2.     Mass Media Act 48.     The relevant sections of the Law of the Russian Federation of 27   December 1991 no. 2124/1 “On the Mass Media” ( Закон РФ от 27   декабря 1991 г. № 2124-1 «О средствах массовой информации» – “the Mass Media Act”) provide as follows: Section 51. Impermissibility of abuse of the rights of a journalist “The rights of a journalist established in this Law shall not be used with the aim of concealing or falsifying information of public significance, dissemination of rumours posed as reliable information, gathering of information in favour of a third person or organisation who are not a mass medium. It is prohibited to use the right of a journalist for dissemination of information with the aim of tarnishing a citizen or particular categories of citizens exclusively on the grounds of gender, age, racial or ethnic origin, language, attitude towards religion, profession, place of residence or work as well as in connection with their political views.” Section 59. Liability for the abuse of the freedom of mass information “Abuse of the freedom of mass information ... entails criminal, administrative, disciplinary or other liability in accordance with the legislation of the Russian Federation. Abuse of the rights of a journalist in breach of [section] ... 51 of this Law or a failure to comply with the duties of a journalist entails criminal, administrative, disciplinary or other liability in accordance with the legislation of the Russian Federation.” B.     Court practice 1.     Supreme Court resolution no. 16 of 15 June 2010 49.     On 15 June 2010 the Plenary Session of the Supreme Court of Russia (“the Supreme Court”) adopted resolution no. 16 “On the Application by the Courts of the Law of the Russian Federation “On the Mass Media” ( Постановление Пленума Верховного суда РФ от 15 июня 2010 г. №   16 «О практике применения судами Закона Российской Федерации «О средствах массовой информации» ). 50.     Paragraph 28 provided that when examining the question as to whether there had been an abuse of the freedom of mass information, the courts should take into account not only the words and expressions (wording) used in an article, television or radio programme, but also the context in which they had been made. In particular, the courts should take into account the aim, genre and style of the article or programme, or the relevant part it played; whether it could be regarded as an expression of an opinion in the sphere of political discussions or a drawing of attention to a debate on matters of public interest; whether an article, programme or material was based on an interview; and the attitude an interviewer and/or representatives of the editorial board of a medium had towards expressed opinions, judgments and statements. The courts also should take into account the social and political situation in the country as a whole and in that particular part, depending on the region in which the particular medium was being distributed. 2.     Supreme Court resolution no. 11 of 28 June 2011 51 .     On 28 June 2011 the Supreme Court adopted resolution no. 11 “On Court Practice in respect of Criminal Cases concerning Criminal Offences of Extremist Orientation” ( Постановление Пленума Верховного суда РФ от 28 июня 2011 г. №   11 «О судебной практике по уголовным делам о преступлениях экстремистской направленности» ). 52.     Paragraph 3 stated that, during criminal proceedings in cases concerning a criminal offence of extremist orientation, the courts should take into account that under the relevant provision of the criminal law the motive for committing the offence should be proven. 53.     Paragraph 7 provided that actions aimed at inciting hatred or enmity were to be understood as comprising statements vindicating and/or affirming the necessity of genocide, mass repressions, deportations and other illegal action, including the use of violence, in respect of representatives of a certain nationality, race, followers of a certain religion and other groups of individuals. Criticism of political organisations, ideological and religious associations, political, ideological and religious convictions, national and religious customs, should not, as such, regarded as an action aimed at inciting hatred or enmity. 54.     The same paragraph clarified that when establishing in an action taken in respect of public officials (professional politicians) elements aimed at humiliating the dignity of an individual or a group of individuals, the courts should take into account the provisions of paragraphs 3 and 4 of the Declaration on freedom of political debate in the media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004 and the practice of the Court, according to which political figures who, having decided to appeal to the confidence of the public, have thereby accepted to subject themselves to public political debate and criticism through the media. Public officials can be subject to criticism in the media over the way in which they carry out their functions, in so far as this is necessary for ensuring transparency and the responsible exercise of their functions. Criticism through the media of public officials (professional politicians), their actions and convictions should not, as such, be regarded in all cases as an action aimed at humiliating the dignity of a person or a group of persons, as the limits of acceptable criticism are wider in respect of such persons than in respect of private individuals. 55.     Paragraph 8 stated that a criminal offence punishable under Article   282 of the Criminal Code could only be committed with direct intent and with the aim of inciting hatred or enmity and humiliating the dignity of an individual or group of individuals on the grounds of gender, race, nationality, language, origin, attitude to religion or membership of a certain social group. The expression of value judgments and inferences using the facts of interethnic, interreligious or other social relations in scientific or political discussions and texts and not pursuing the aim of inciting hatred or enmity and humiliating the dignity of an individual or group of individuals on the grounds of gender, race, nationality, language, origin, attitude to religion or membership of a certain social group was not a criminal offence punishable under Article 282 of the Criminal Code. 56 .     Paragraph 23 stated that when ordering a forensic expert examination in cases concerning a criminal offence of extremist orientation, experts should not be asked legal questions falling outside his or her competence and involving an assessment of an impugned act, the resolution of such questions being exclusively within a court’s competence. In particular, experts should not be requested to answer questions as to whether a text contains appeals to extremist activity, or whether documentar