CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 octobre 2020

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   THIRD SECTION CASE OF KARASTELEV AND OTHERS v. RUSSIA (Application no. 16435/10)     JUDGMENT   Art 10 • Freedom of expression • Prosecutor’s unfettered discretion to issue warnings, cautions and orders under “anti-extremism” legislation lacking foreseeability and safeguards • Lack of foreseeable criteria for deducing the risk of the “extremist activity” to be prevented • No clear criteria to distinguish between non-punishable conduct, conduct that would give rise to a warning or by itself entail criminal liability • Prosecutors not required to take due account of the factors and principles developed in Court’s freedom of expression case-law • Lack of safeguards against arbitrariness and inadequate judicial review • Failure to demonstrate that the applicants’ conduct was capable of leading to violent obstructive conduct toward the authorities Art 6 § 1 • Access to court • Unjustified discontinuation of the proceedings brought by the first applicant, with reference to the parallel proceedings brought by the second applicant   STRASBOURG 6 October 2020   FINAL   06/01/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karastelev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Helen Keller,   Dmitry Dedov,   Alena Poláčková,   María Elósegui,   Gilberto Felici,   Lorraine Schembri Orland, judges, and Milan Blaško, Section Registrar, Having deliberated in private on 1 September 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 16435/10) 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”) on 3 March 2010 by two Russian nationals: Mr Vadim Yevgenyevich Karastelev (“the first applicant”) and Mrs   Tamara Viktorovna Karasteleva (“the second applicant”); and the non-governmental organisation, the Novorossiysk Committee for Human Rights (hereinafter – “the NCHR” or “the third applicant”). The second applicant died on 3   December 2011. On 17 May 2017 the first applicant informed the Court accordingly and expressed his wish to pursue the second applicant’s complaints before the Court. In February 2018 the Court received a letter signed by Ms Agaltsova, acting on behalf of the first applicant and Mr   Dmitriy Vadimovich Karastelev. That letter indicated that the latter was the second applicant’s son and heir under a succession certificate issued in December 2017; that he would pursue his late mother’s complaints before the Court; and that the first applicant withdrew his earlier related statement. 2.     At different stages of the proceedings before the Court the applicants were represented by Mr F. Tishayev, Ms   M.   Agaltsova and other lawyers of the Human Rights Centre Memorial, Moscow, and the European Human Rights Advocacy Centre (EHRAC), United Kingdom. 3.     The Russian Government (“the Government”) were initially represented by Mr G.   Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 4 .     On 7   November 2016 the Government were given notice of the complaints in respect of the first and second applicants under Articles 6, 10 and 13 of the Convention and Article 2 of Protocol   No.   7 to the Convention and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The first applicant was born in 1965 and at the material time lived in Novorossiysk, Krasnodar Region. The third applicant was then an NGO operating in Novorossiysk. 6.     At the relevant time, the first and second applicants were the NCHR’s deputy chief officer and chief officer respectively. The first and second applicants’ demonstrations 7.     On 21 July 2008 the Krasnodar Regional Law on preventive measures against misconduct on the part of minors (“the Minors Protection Act”) was adopted. It provided, inter alia , that parents were required to ensure that their children did not go to public places at night without being accompanied by an adult. 8.     The first and second applicants staged public protests in Novorossiysk against the Minors Protection Act, which, in their opinion, was too restrictive and unconstitutional, particularly because it prevented adolescents from going out in order to get medication for their sick parents. It appears that all their public protests were preceded by notice being given to the local authorities, as required by the applicable legislation on public events. 9.     On 4 April 2009 the first and second applicants staged a static demonstration. A poster stating “Freedom is not granted, it has to be taken” [1] was publicly exhibited during this demonstration. 10.     On 18 April 2009 they staged another static demonstration near the Novorossiyskaya Respublika monument. V. and K., aged fifteen and sixteen, approached the applicants and had a short conversation with them (see also paragraphs 13-17 below). According to the applicants, on that occasion, the above-mentioned poster was not used (see, however, the findings of the domestic court in paragraph 26 below). Procedures against the applicants 11.     On 22 April 2009 V. and K.’s parents lodged complaints with the Novorossiysk prosecutor’s office. In particular, they alleged that the first and second applicants had conducted propagandistic activity ( агитационные действия ) among minors, including activity on the premises of secondary school no. 22, and that, during the demonstration of 18   April 2009, the first applicant had invited V. and K. and their friends to participate in future demonstrations calling for the abolition of the Minors Protection Act (see also paragraphs 15-17 below). 12.     On 27 April 2009 the first and second applicants were summoned to the prosecutor’s office for the purpose of giving statements. They insisted that the NCHR had had nothing to do with their protest actions, including those of 18 April 2009. 13 .     The first applicant stated that he and his wife (the second applicant) had not carried out any work with school children in relation to their opposition to the Minors Protection Act and that the protest actions taken by him and his wife as private citizens in relation to that Act between January and April 2009 had been notified to the local authorities in compliance with the Public Events Act. He indicated that during the protest on 18 April 2009 two adolescents had approached him and his wife and, in reply to their questions, he had told them that it was a protest against the Minors Protection Act and had pointed to the poster(s) displayed at the venue of the protest. Thereafter, the adolescents had been called over by a woman standing across the road (possibly the mother of one of them) and they had left. 14 .     The second applicant made a similar statement, corroborating the first applicant’s statement. 15 .     V., aged fifteen, was interviewed by an assistant prosecutor, and stated that he had heard about a forthcoming demonstration from a friend and had decided “to have a look”. He confirmed that during the demonstration he and his friend K. had approached a woman (the second applicant) and had asked her why she did not like the Minors Protection Act, and upon her suggestion he had taken posters and had taken a photograph. The woman had told him that if the Act were to be repealed, he could walk outside after 10 p.m. without any fear of the police who would not “touch them”. He stated that no one had come to his school or invited him to any demonstrations. 16 .     K., aged sixteen, was also interviewed and made a statement in similar terms. He had talked to a man (the first applicant) who had suggested that they should bring their friends along to another demonstration; if the Minors Protection Act were to be repealed the police would not bother the young people who would be able to spend time outside at night. K. had been content with that approach but at the same time had considered that it could lead to disorder. He had disagreed with the poster stating “Freedom is not granted, it has to be taken” because nobody had taken his freedom. In K.’s view, the first applicant’s negative attitude toward the police, together with his actions during the demonstration, had amounted to calls to carry out anti-social activities consisting of disobeying the law and the public authorities. Without the Minors Protection Act, there would be a rise in drug consumption, alcoholism, hooliganism and other crimes. 17 .     Subsequently, V. amended his statement to bring it in line with K.’s statement. 18.     On 12 May 2009 the municipal authority lodged a complaint against all three applicants because their activity had allegedly been of a “destructive nature” and asked the prosecutor’s office to take the requisite measures, including dissolving the NCHR. 19 .     On 21 May 2009 the prosecutor’s office issued four documents under three legal procedures. (a)     Two separate written warnings ( предостережения ) concerning the unacceptability of violating the law were issued, based on section 25.1 of the Prosecutors Act (see paragraph 40 below). Those warnings were addressed to the first and second applicants in their capacity as NCHR officials – they were warned that failure to comply with the terms of the warnings could result in their personal liability for an administrative offence. According to the prosecutor’s office in subsequent proceedings (see paragraph 26 below), the warning to the second applicant was not formally served on her and thus did not entail any legal consequences for her. (b)     A caution ( предупреждение ) indicating the unacceptability of extremist activities was issued to the NGO, based on section 7 of the Suppression of Extremism Act (see paragraph 38 below). That document was addressed to the second applicant as the NCHR’s chief officer and it indicated that if within twelve months of the caution new facts came to light indicating possible extremist activity, the NCHR could be dissolved by a court order; and (c)     An order ( представление ) seemingly requiring the third applicant to remedy violations of the legislation to counteract extremist activities (see paragraph 41 below) was issued. It pointed out that extremist activities on the part of an NGO could entail its dissolution. The order required the second and third applicants to “take measures in order to remedy the violations of the law and to remove the reasons and grounds for such violations” and to report back to the prosecutor’s office within a month confirming the measures taken (see also paragraphs 31-32 below). In all the above-mentioned documents the prosecutor indicated, in nearly identical terms, that the first and second applicants’ calls for minors to attend protest actions against the Minors Protection Act amounted to calls to carry out anti-social actions consisting of disobedience to the law and the public authorities and that such conduct might, in future, entail extremist actions consisting of obstructing the work of the public authorities in Novorossiysk. 20 .     The warnings issued to the first and second applicants read as follows: “The parents of minors V. and K. complained to the town prosecutor’s office of [the first and second applicants’] propagandistic actions calling for participation in protests against the Minors Protection Act and of their calls for persons to carry out anti-social activities. Specifically, it follows from the complaints that [the first/second applicant] carried out propagandistic actions among school pupils, inviting them to take part in protests against the Minors Protection Act. Minors V. and K. were interviewed by the prosecutor in the presence of their parents and a school official and stated that on 18   April 2009 [the first and second applicants] had invited them to bring their friends along to similar protests seeking to obtain the revocation of the Act. The minors stated that they had perceived [the first/second applicant’s] actions as calls to carry out anti-social actions consisting of disobeying the law and the public authorities. Thus, it should be concluded that [the first/second applicant’s] conduct may in future entail extremist activities aimed at obstructing the lawful activity of the State authorities in Novorossiysk. Section 9 of the Suppression of Extremism Act prohibits the creation and functioning of non-governmental organisations aimed at carrying out extremist activities ... Where such activities or actions entail violations of individual rights or freedoms, damage to a person, his or her life or limb, the social order, public safety ... or create a real threat of such damage, the organisation may be dissolved ... Thus, as a preventive measure, under sections 22(2) and 25.1 of the Prosecutors Act, I warn [the first/second applicant] that it is not acceptable to violate the anti-extremist legislation. I inform [the first/second applicant that his/her] failure to comply with the present requirement ( требование ) may entail [his/her] liability for an administrative offence.” 21 .     The order read as follows: “The parents of minors V. and K. complained to the town prosecutor’s office of [the first and second applicants’] propagandistic actions calling for participation in protests against the Minors Protection Act and of their calls for persons to carry out anti-social activities. The investigation disclosed violations of the Suppression of Extremism Act.   Specifically, it follows from the complaints that [the second applicant] carried out propagandistic actions among school pupils, inviting them to take part in protests against the Minors Protection Act. Minors V. and K. were interviewed by the prosecutor in the presence of their parents and a school official and stated that on 18   April 2009 [the first and second applicants] had invited them to bring their friends along to similar protests seeking to obtain the revocation of the Act. Moreover, K. and V. stated that they had perceived [the first and second applicants’] actions as calls to carry out anti-social actions consisting of disobeying the law and authorities. Thus, it is possible to conclude that such conduct may in future entail extremist actions aimed at obstructing the lawful activities of the public authorities in Novorossiysk. Section 9 of the Suppression of Extremism Act prohibits organisations from aiming to commit extremist activities or acting in such a manner. Where such activities or actions entail violations of individual rights or freedoms, damage to a person, his or her life or limb, the social order, public safety ... or create a real threat of such damage, the organisation may be dissolved ... Thus, under section 24 of the Prosecutors Act, I invite you to consider this order and to take effective actions to remedy the violation of the law that we have identified, the related reasons and grounds for it, to conduct enquiries into the persons concerned and decide whether they should be subjected to disciplinary penalties, and to report back to the prosecutor’s office within a month.” 22.     On 29 May and 5 June 2009, after the warnings, the caution and the order had been issued, the poster “Freedom is not given, it has to be taken” was examined, apparently at the request of the prosecutor’s office, by: (i) a holder of a PhD degree in philosophy, Mr R., who concluded that the poster was of an extremist nature; (ii) the head of the municipal medical and social centre, Ms G., who stated in her findings that the poster contained a provocative statement that could be perceived by minors as a call for active resistance against the authorities. 23.     On 3 June 2009 the first applicant requested permission from the prosecutor’s office to examine the investigation file which formed the basis for issuing him with the written warning. On 15 June 2009 that request was refused. Judicial review proceedings by the second applicant 24 .     In June 2009 the second applicant lodged a complaint with the Oktyabrskiy District Court of Novorossiysk, contesting the warning issued to her, as well as the caution and the prosecutor’s order which had been addressed to her as the chief officer of the NCHR, all of which were dated 21 May 2009. 25.     It is apparent from the written record of the trial that at the last hearing on 24   June 2009 the prosecutor adduced in evidence the reports issued by Ms G. and Mr R. 26 .     In a judgment delivered on 24 June 2009, the District Court dismissed the complaint. The court found the warning, the caution and the order well-founded and endorsed the conclusions of the expert reports by Ms G. and Mr R. In particular, the court confirmed that the poster “Freedom is not given, it has to be taken” was of an extremist nature, noting that it contained a provocative statement which “could be perceived by adolescents as an appeal to exercise active resistance against the authorities and statutes”. The court held as follows: “The Suppression of Extremism Act sets out the legal basis for organising the fight against extremist activities and provides for liability for that type of activity, with the aim of protecting human rights and freedoms and the foundations of the constitutional regime, and for the purpose of ensuring national integrity and security. Measures aimed at preventing ( предупреждение ) extremist activity form part of the main principles of this fight ... ‘Extremist activity’ [under the Act] includes the obstruction of the lawful activities of State authorities ... combined with violence or threats of violence ... The poster used by [the first and second applicants] during the demonstration was described by the experts [Ms G. and Mr R.] as contributing to opposition to the activities of State authorities ... ‘A human being has inherent inalienable rights of natural law such as freedom of thought, freedom to express his opinion, freedom to live and so on. Thus, one cannot wait for such rights to be granted “from above”; they need to be taken by force ...’ ... The call to ‘take’ freedom from outside the framework of the statutory rules is interpreted as a call by the organisers of the demonstration to engage in active opposition to the existing legislation, namely the ‘Minors Protection Act’ ... The prosecutor’s office considered that [the first and second applicants] had carried out campaigning (propagandistic) activities calling on pupils to take part in action against the ‘Minors Protection Act’ ... and that [the first and second applicants] had issued calls to carry out anti-social activities ... The specialists concluded that the poster and the [first and second applicants’] actions could be perceived by adolescents as incitement to engage in active opposition to the State authorities ... A call to ‘take’ freedom means prioritising human rights over the State’s interests. Thus, the slogan ‘Freedom is not granted, it has to be taken’ is of an extremist nature ...” 27.     The second applicant lodged an appeal with the Krasnodar Regional Court. She argued as follows. (a)     The adolescents could not have seen the poster referred to because no such poster had been used during the demonstration in question, as confirmed by the electronically date-stamped photographic evidence in the case file, and in any event the experts and the court had reached contradictory conclusions regarding the utterances made and the details of who had been holding the poster at the material time – whether it was the second applicant or the first applicant (who, in any event, was not a party to the case before the domestic courts at that time). (b)     The court had not assessed the argument and the supporting evidence suggesting that during the demonstration the second applicant had acted as a private person and not as an official of the NGO. (c)     The report by Ms G. was a specialist report obtained by the prosecutor’s office rather than an expert report commissioned by the court, meaning that the second applicant had not been afforded an opportunity to suggest which expert institution to consult or what questions should be raised before the chosen expert. It had not been adduced as evidence during the trial and had therefore not been examined in adversarial proceedings that would have offered the opportunity to comment or to interview Ms G. Further, the Code of the Civil Procedure did not allow for evidence such as a specialist’s report. Despite those factors, the court had used that report to justify its judgment. 28 .     On 3 September 2009 the Regional Court upheld the judgment of 24   June 2009, although it removed a reference to the first applicant from that judgment. 29 .     The first applicant sought a supervisory review of the court decisions of 24 June and 3 September 2009. His application was rejected as inadmissible. Judicial review proceedings by the first applicant 30 .     In the meantime, on 23 July 2009 the first applicant complained to the Primorskiy District Court of Novorossiysk about the warning issued to him on 21 May 2009. On 14   August 2009 the District Court issued a decision discontinuing the proceedings because the same subject-matter had already been determined by the judgment of 24   June 2009 by the Oktyabrskiy District Court (see paragraph 26 above). On 17   November 2009 the Regional Court upheld that procedural decision. Other proceedings 31 .     In order to comply with the requirements of the order of 21   May 2009, on 3 August 2009 the second applicant – representing the NCHR – requested that the prosecutor’s office clarify its requirements because the documents had not explained how exactly the applicants’ alleged actions had breached the law. The second applicant also argued that the prosecutor’s office had failed to refer to the relevant law in its warnings.   On 20 August 2009 the prosecutor’s office issued a clarification of the order of 21 May 2009, indicating that it might be appropriate to subject the first and second applicants to disciplinary sanctions.   On 14 September 2009 the second applicant, representing the NCHR, replied to the prosecutor’s office, explaining that measures had been undertaken by the NCHR in order to comply with the prosecutor’s order. Namely, the second applicant had resigned from her position as the NCHR’s chief officer. 32 .     On 15 June 2009 – and thus after the prosecutor had issued the warnings of 21   May 2009 to the applicants – the headmaster of school no.   22 complained to the prosecutor’s office of another instance of propagandistic activity and incitement to anti-social activity on the part of the first and second applicants (in their capacity as NCHR’s officials) which had allegedly been carried out on the school’s premises on 25 and 26   May 2009. On 7 August and 7 September 2009 the prosecutor’s office sought the dissolution of the NCHR because the first and second applicants had “repeatedly engaged in unlawful activity” after the warnings issued on 21   May 2009. Subsequently, the prosecutor’s office asked the court to discontinue the proceedings seeking the dissolution of the NCHR because the procedure for submitting such a request had not been complied with. The court agreed to that request and discontinued the proceedings. RELEVANT DOMESTIC LAW AND PRACTICE Freedom of expression 33 .     Article 29 of the Constitution of the Russian Federation guarantees the right to freedom of thought and expression, as well as freedom to freely seek, receive, transfer and spread information by any legal means. 34 .     Article 55 of the Constitution provides that rights and freedoms may be limited by federal statute only in so far as is necessary for protecting the foundations of the constitutional regime, the morals, health, rights and legitimate interests of others, and for ensuring national defence and security. Suppression of Extremism Act 35 .     The preamble to the Suppression of Extremism Act (Federal Law no.   114-FZ on Combatting Extremist Activity, 25 July 2002) explains that the Act provides for liability for extremist activity and aims to protect individual rights and freedoms, the foundations of the constitutional regime and ensure the integrity and security of the Russian Federation. 36.     Section 1 of the Suppression of Extremism Act defines extremist activity ( экстремистская деятельность ) as, inter alia , obstruction of the lawful activities of State authorities, electoral commissions and their officials, combined with violence or threats of violence as well as public calls to carry out ( публичные призывы к ) such obstruction; mass dissemination of material known to be extremist ( заведомо экстремистские материалы ). 37 .     Section 6 authorises the competent supervising authority to issue to the chief officer of an NGO or other persons a warning ( предостережение ) of the unacceptability of extremist activity if there is sufficient verified information that unlawful actions of an extremist nature are being planned but, at the same time, there are insufficient grounds to make out a case of criminal liability. Failure to comply with the instructions as set out in the written warning entails liability on the part of the person to whom the warning was issued (see also paragraph 40 below). 38 .     Section 7 authorises the competent supervising authority to issue an NGO with a caution ( предупреждение ) regarding the unacceptability of extremist activity. 39 .     On 2 July 2013 the Constitutional Court, in its decision no. 1053-O, dismissed as inadmissible a request for a review of the constitutionality of sections 1 and 13 of the Suppression of Extremism Act – in particular, the parts of section 1 concerning incitement of social, racial, ethnic or religious discord and propaganda about the exceptional nature, superiority or deficiency of people on the basis of their social, racial, ethnic, religious or linguistic affiliation or their attitude to religion – on the grounds of their alleged vagueness and the consequent lack of foreseeability in their application. The Constitutional Court held, in particular, that the requirement of foreseeability did not prevent the use of value or common terms, the meaning of which was understandable directly from the legal provision in question, from a combination of related legal provisions or through interpretation by the courts. When applying section 1 of the Suppression of Extremism Act, the courts had to take into account that the requisite element of that form of extremism was an explicit or implicit disrespect for the constitutional prohibition of incitement of social, racial, ethnic or religious discord and of propaganda about the exceptional nature, superiority or deficiency of persons on the basis of their social, racial, ethnic, religious or linguistic affiliation or their attitude to religion. To establish whether there was such disrespect, the courts had to take into account all the relevant circumstances of the case, such as the form and content of the activity or information in question, its audience, purpose, social and political context and whether there was a real threat to public order arising from, among other things, calls to, or substantiation or justification of, unlawful infringements of constitutionally protected values. The Constitutional Court found that anti-extremism legislation did not permit restrictions to be imposed on the right to freedom of conscience, religion and speech on the sole ground that the activity or information did not conform to common views, established traditions and beliefs, or moral and religious preferences. Such restrictions would be contrary to the constitutional requirements of necessity, proportionality and fairness. The wording of section 1 of the Suppression of Extremism Act did not, therefore, allow for its unforeseeable interpretation or arbitrary application. Supervising powers of prosecutors 40 .     For the purpose of avoiding ( для предупреждения ) the commission of offences ( правонарушения ) and where there is information that unlawful actions ( противоправные деяния ) are being planned, a prosecutor is able to issue a written warning ( предостережение ) of the unacceptability of violations of the law. Such a warning may be issued to the officials of an NGO or – if the available information reveals plans for extremist activity – to the chief officer of the organisation in question, or other appropriate persons (section 25.1 of the Prosecutors Act, Federal Law no. 2202-1 of 17   January 1992). Failure to comply with the prosecutor’s instructions as set out in the written warning entails liability on the part of the official to whom the warning is issued (ibid. – see also paragraph 37 above). 41 .     A prosecutor may also issue an order ( представление ) requiring the organisation to remedy violations of the law. Such an order should be addressed to the official who has the competence to remedy such violations (section 24 of the Prosecutors Act). Judicial review 42.     For a summary of the applicable legislative provisions and judicial practice in relation to judicial review under Chapter 25 of the Russian Code of Civil Procedure (“the CCP”), see Roman Zakharov v. Russia ([GC], no.   47143/06, §§   92-100, ECHR 2015), and Lashmankin and Others v.   Russia (nos.   57818/09 and 14   others, §§ 276-88, 7 February 2017). 43 .     Article 248 of the CCP provided that a court could refuse to deal with a claim or discontinue the proceedings where there was already a court decision that had entered into force and concerned the same subject-matter ( предмет ). Article 250 of the Code provided that where a court decision had entered into force, neither a person involved in related proceedings, nor any other person, could institute new proceedings in respect of the same claim ( требование ) on the same grounds ( основания ). OTHER RELEVANT material European Commission against Racism and Intolerance 44.     On 8 December 2015 the Council of Europe’s European Commission against Racism and Intolerance (ECRI) adopted General Policy Recommendation No. 15 on combating hate speech. In its relevant parts, the recommendation reads as follows: “The European Commission against Racism and Intolerance (ECRI): ... Considering that hate speech is to be understood for the purpose of the present General Policy Recommendation as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of ‘race’, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status; ... Recognising also that forms of expression that offend, shock or disturb will not on that account alone amount to hate speech... ... Aware of the grave dangers posed by hate speech for the cohesion of a democratic society, the protection of human rights and the rule of law but conscious of the need to ensure that restrictions on hate speech are not misused to silence minorities and to suppress criticism of official policies, political opposition or religious beliefs; ... Recalling that the duty under international law to criminalise certain forms of hate speech, although applicable to everyone, was established to protect members of vulnerable groups and noting with concern that they may have been disproportionately the subject of prosecutions or that the offences created have been used against them for the wrong reasons; ... Recommends that the governments of members States: ... 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 is respected, and accordingly: a. ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied; ... 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; ... e. provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response...” 45 .     The Explanatory Memorandum to the recommendation, in its relevant parts, provides as follows: “7. For the purposes of this Recommendation, the following definitions shall apply: ... q. ‘incitement’ shall mean statements about groups of persons that create an imminent risk of discrimination, hostility or violence against persons belonging to them; ... ff. ‘violence’ shall mean the use of physical force or power against another person, or against a group or community, which either results in, or has a high likelihood of resulting in, injury, death, psychological harm, maldevelopment or deprivation; ... 14. The Recommendation further recognises that, in some instances, a particular feature of the use of hate speech is that it may be intended to incite, or can reasonably be expected to have the effect of inciting, others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it. As the definition above makes clear, the element of incitement entails there being either a clear intention to bring about the commission of acts of violence, intimidation, hostility or discrimination or an imminent risk of such acts occurring as a consequence of the particular hate speech used. 15. Intent to incite might be established where there is an unambiguous call by the person using hate speech for others to commit the relevant acts or it might be inferred from the strength of the language used and other relevant circumstances, such as the previous conduct of the speaker. However, the existence of intent may not always be easy to demonstrate, particularly where remarks are ostensibly concerned with supposed facts or coded language is being used. 16.     On the other hand, the 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 ‘live’ 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). ... 62.     ... there is also concern on the part of bodies responsible for supervising the implementation of States’ obligations in this regard that such restrictions can be unjustifiably to silence minorities and to suppress criticism, political opposition and religious beliefs. 63.     Thus, for example, the Committee on the Elimination of Racial Discrimination, when reviewing reports of States Parties to the International Convention on the Elimination of All Forms of Racial Discrimination, has recommended that the definitions in legislation directed against ‘extremism’ be amended so as to ensure that they are clearly and precisely worded, covering only acts of violence, incitement to such acts, and participation in organizations that promote and incite racial discrimination, in accordance with Article 4 of that Convention. Similarly, the United Nations Human Rights Committee has expressed concern that such legislation could be interpreted and enforced in an excessively broad manner, thereby targeting or disadvantaging human rights defenders promoting the elimination of racial discrimination or not protecting protect individuals and associations against arbitrariness in its application. In addition, concerns about the use of hate speech restrictions to silence criticism and legitimate political criticism have also been voiced by ECRI and others such as the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Advisory Committee on the Framework Convention on National Minorities. ... 148. ... in order to ensure that there is no unjustified interference with the right to freedom of expression, any liability should be limited to the more serious uses of hate speech, namely, those which are intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it. Thus, it should not be enough to demonstrate damage or loss as a result of a particular use of hate speech for any liability to be imposed; the particular use must also be of such gravity – namely, where there is the intention to incite or an imminent risk of this occurring – that its imposition is warranted. ... 169. The requirements for the prohibition or dissolution of a political party or other organisation are even more exacting given the gravity of such a measure. This is reflected in the limitation by the recommendation 9 of the use of such measure to situations in which the hate speech concerned is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination. There will, therefore, be a need to establish that there is plausible evidence either that such an intention exists or that there was an imminent likelihood of the acts concerned occurring. Moreover, where the use of hate speech involved the speeches or other conduct of individuals as opposed to more formal policy documents or pronouncements, there will also be a need to establish that these were imputable to party or organisation concerned and that they gave a clear picture as to the approach which it supported and advocated. This will most often be the case with the speeches and conduct of leading figures in a party or organisation. Thus, it may be appropriate to place less emphasis in this context on the activities of individual members, including former leaders, where these have not been endorsed in an explicit or tacit manner.” Venice Commission 46 .     Opinion no. 660/2011 on the Federal Law on Combating Extremist Activity of the Russian Federation adopted by the European Commission for Democracy through Law (the Venice Commission) at its 91st Plenary Session held in Venice on 15-16 June 2012, CDL ‑ AD(2012)016-e (Opinion of the Venice Commission), contained, in particular, the following opinions and conclusions: “30.     The Venice Commission notes that the definitions in Article 1 of the Law of the “basic notions” of “extremism” (“extremist activity/extremism”, “extremist organisation’ and “extremist materials”) do not set down general characteristics of extremism as a concept. Instead, the Law lists a very diverse array of actions that are deemed to constitute “extremist activity” or “extremism”. This should mean that, according to the Law, only activities defined in Article 1.1 are to be considered extremist activities or fall within the scope of extremism and that only organisations defined in Article 1.2 and materials defined in Article 1.3 should be deemed extremist. 31.     The Commission however has strong reservations about the inclusion of certain activities under the list of “extremist” activities. Indeed, while some of the definitions in Article 1 refer to notions that are relatively well defined in other legislative acts of the Russian Federation, a number of other definitions listed in Article 1 are too broad, lack clarity and may open the way to different interpretations. In addition, while the definition of “extremism” provided by the Shanghai Convention, as well as the definitions of “terrorism” and “separatism”, all require violence as an essential element, certain of the activities defined as “extremist” in the Extremism Law seem not to require an element of violence (see further comments below). ... 35.     Extremist activity under poi