CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 décembre 2021

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display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     THIRD SECTION CASE OF MUKHIN v. RUSSIA (Application no. 3642/10)     JUDGMENT   Art 10 • Freedom of expression • Unjustified conviction and sentencing of newspaper editor, as well as termination of newspaper’s media-outlet status, under anti-extremism laws   STRASBOURG 14 December 2021   FINAL   14/03/2022     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mukhin v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georges Ravarani, President,   Georgios A. Serghides,   Paul Lemmens,   Dmitry Dedov,   Darian Pavli,   Anja Seibert-Fohr,   Peeter Roosma, judges, and Milan Blaško, Section Registrar, Having regard to: the application (no.   3642/10) 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”) by a Russian national, Mr Yuriy Ignatyevich Mukhin (“the applicant”), on 17 November 2009; the decision to give notice of the complaints under Article 10 of the Convention to the Russian Government (“the Government”) and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 24 August and 9 November 2021, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The applicant, an editor-in-chief of a newspaper, complains of his criminal conviction for publishing in that newspaper a controversial piece authored by another person and of the ban on the distribution of the newspaper. THE FACTS 2.     The applicant was born in 1949 and lives in Moscow. He was represented by Ms M.   Visentin and previously also by Mr K. Eckstein , lawyers practising in Lainate (Italy) and Rorschach (Switzerland) respectively. 3.     The Government were represented by Mr M.   Galperin, the then Representative of the Russian Federation to the European Court of Human Rights and lately by Mr M. Vinogradov, his successor in that office. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     Mr S. founded the Centre for Independent Journalism (“the CIJ”), a not-for-profit partnership. On 27 December 1995 it was registered as a legal entity; the applicant was appointed as its managing director. The partnership had three members: the applicant and two other people. On 29 December 1995 the newspaper Duel ( Дуэль – hereinafter “the newspaper”) was registered as a mass-media outlet. The partnership also made up the newspaper’s editorial board ( редакция ). Mr S. and the partnership managing director (the applicant) signed a contract under which the applicant was also appointed as the newspaper’s editor-in-chief. In fact, he was the only member of its editorial board. The newspaper published material submitted by its readers. The CIJ ceased to exist as a legal entity in 2017. Publication of the material entitled “You voted, you have the right to judge” in 2006 Background of the publication of the impugned material 6.     The applicant created the Army of the People’s Will (APW), an informal (non-registered) not-for-profit organisation campaigning for amending the legislation to provide for the personal liability of certain elected officials, including the President of the Russian Federation and members of the Federal Council of the Russian Federation. It appears that the main activity consisted in campaigning for organising a referendum to have the Constitution of the Russian Federation amended and for having a new federal statute adopted under the title “For the people’s trial of the President and members of the Federal Council of the Russian Federation”. The organisation declared that it intended to “enlist” in it from twenty to fifty thousand people and to gather two million signatures of eligible voters, which would be enough to require a national referendum under the Federal Constitutional Law no.   5-FKZ of 28 June 2004. 7.     One of APW’s manifestos was entitled “You voted, you have the right to judge”. The outline of the plan set out in the text was to gather support for the proposal, by way of a petition, among Duel ’s readers, and then to put the proposal before the electorate via a referendum. The text read as follows: “Here is our approach to passing the proposed amendment and the statute. We are going to gather within the Army of the People’s Will twenty to fifty thousand fighters, to gather two million votes, which would be sufficient for a referendum. During that referendum the people are going to vote for this amendment and the statute. And then, we are going to compel its enforcement. If we are going to be impeded on this lawful path, the Army of the People’s Will will apply force against those who impede the enforcement of the law in Russia. If you are a human being and not a mere body, join the Army of the People’s Will.” 8 .     According to the applicant, that text had been published on numerous occasions for over a decade until in 2006 when its publication gave rise to various procedures under the Suppression of Extremism Act and the applicant’s criminal prosecution (see below). 9.     In 2010 the Moscow City Court classified APW as an extremist organisation and banned its activities in Russia. It appears that another organisation, For a Responsible Power (FRP), continued APW’s certain activities and projects. In 2017 the applicant and some others were convicted under Article   282.2 of the Criminal Code (organisation of the activities of an extremist organisation) in relation to APW’s and FRP’s activities. Impugned publication in 2006 10.     On 21 February 2006 the newspaper once again published the text mentioned above. Anti-extremist caution procedures 11 .     On 20 March 2006 the Russian media regulator ( Федеральная служба по надзору за соблюдением законодательства в сфере массовых коммуникаций и охране культурного наследия ) issued an official caution to Mr S. and the editor of the newspaper under the Suppression of Extremism Act. The regulator considered that the material “You voted, you have the right to judge” contained information “justifying extremist activities and calling for extremist activities to be carried out, for the undermining of national security and for the taking over and usurpation of public powers”. The media regulator cautioned the newspaper against future similar violations of (anti-extremism) legislation. 12 .     Following the publication of the same text on 4 April 2006, on 26   April 2006 the media regulator issued a new official caution to the newspaper. 13.     The CIJ sought judicial review of the official cautions under Chapter   25 of the Code of Civil Procedure. It was represented in those proceedings by the applicant acting as the CIJ’s director and as the newspaper’s editor-in-chief. 14.     The applicant adduced in evidence a report by a person holding a PhD in Political Science, apparently challenging the notion that the impugned material was extremist. 15 .     On 4 June 2007 the Presnenskiy District Court of Moscow upheld the official cautions. It rejected the report, indicating that the scope of judicial review of official cautions was related to ascertaining the “procedural legality” of such cautions and did not encompass assessment of whether impugned material had been or should be classified as “extremist” (see paragraph 17 below for the relevant subsequent proceedings). 16 .     On 9 August 2007 the Moscow City Court upheld this judgment on appeal. Classification as “extremist material” under the Suppression of Extremism Act 17 .     A prosecutor brought court proceedings, seeking the classification of the text “You voted, you have the right to judge” as extremist material in breach of the Suppression of Extremism Act. Mr S. and the CIJ were named as the respondents in this civil case. On 20 March 2009 the Zamoskvoretskiy District Court of Moscow classified the text as extremist material.   According to the applicant, he lodged an appeal against that judgment. However, the Court has not been informed of any details of such an appeal. Publication of the piece “Death to Russia!” Background of the publication of the impugned material 18 .     On 2 May 2006 the newspaper published a text by D. that contained the following paragraph: “I was wondering why Putin would bring for ‘reburial’ to Moscow from Switzerland the body of the ‘famous Russian nationalist philosopher’ Ivan Ilyin. Are they crazy there in the Kremlin? Did the world go upside down? I started to look into this. It turned out that the mother of this ‘Russian philosopher’ was named Yulia Schweikert. I had a look at a picture of him. And all became clear. He was a very influential Mason. After the [Nazis] came to power, they immediately kicked him out of his German university. This ‘poor and sad’ guy had had to sit through the war at university in Switzerland. The Kremlin is predictably doing ‘as it should be’. The ‘Russian nationalist philosopher’ turned out to be a typical ‘Holocaust victim’.” 19 .     In June 2006 the newspaper published a text by G. entitled “Does one’s surname matter?”, in relation to the so-called “Jewish emigration movement” in the USSR in the 1970s. Quoting the above paragraph from D.’s text and referring to information about D. and his mother from the website of Memorial, a non-governmental organisation in Russia, G. stated that the website contained names of people who had nothing to do with the Jewish emigration movement. He concluded: “I would not bother you with all that information about [D.] ... but I was surprised by the position taken by both the newspaper and that ‘Holocaust victim’: namely, that whatever the content of the writings by the ‘famous Russian nationalist philosopher’ what matters is that his mother’s name was Schweikert.” Publication of the impugned material 20 .     On 4 July 2006 the newspaper published a “letter” from D. entitled “About [the] mother”. Immediately above D.’s text the applicant added the headline “Death to Russia!” which corresponded to the concluding phrase of D.’s text. 21 .     D.’s “letter” reads as follows: “ About [the] mother I have read a text from a Mr G. (published in the twenty-third issue of Duel in 2006) about my mother and myself. It says that, according to Memorial, my mother and I were ‘participants in the Jewish emigration movement’. This is a lie! Indeed, we did take part in the ‘emigration movement’ but we left the USSR because of political persecution. And, formally speaking, it was to ‘Israel’, because in 1973 one could not leave to any other country from the USSR. During that ‘Jewish emigration’ (that ended up in ‘transit’ in Vienna) there were lots of people of Russian origin, Ukrainian or Armenian origin, ethnic Germans, none of whom had any link to the Jews. Those people would then spread between Western countries, mostly to the USA. My mother’s last name was not Schweikert (as G. seemed to suggest) but Varnakova ... She was of pure Russian origin, a native Muscovite ... I have not a single drop of Jewish blood in me. Obviously, none was in my parents. By the way, the Memorial’s list contains ‘participants in the Jewish emigration movement’ of different ethnicities on two accounts: (1) political persecution in the USSR; (2) subsequent departure from the USSR with an ‘Israeli’ visa ... By the way, my short summary (in Duel ) as regards the biography of the ‘well ‑ known Russian writer and nationalist’ Ivan Ilyin (his mother’s name was Schweikert) received large coverage on some Internet forums ... As to my ethnic origin, I know perfectly well that Zionists tarnish their opponents in three ways ... (1) you are a Jew yourself, (2) he is insane (meaning, probably, that no normal person would criticise Zionists); (3) he is a homosexual (here Zionists uncover their complexes in a Freudian manner). However, there are certain limits that no Zionist or Jew (pretending to be a Russian) would cross. None would say, for instance, that he has no drop of Jewish blood in him ... I have not a single drop of Jewish blood in me! Overall, ... the debate between [G.] and myself is an example of a fight within the grand information war between nationalists and patriots, that is to say between a huge consolidated mass of Jewish patriots of their Jewish State of the Russian Federation ... with the involvement and public aid of ruling Jews ... Russia’s brainless and zombified mass of people ... and a bunch of nationalists of Russian blood who are determined to eliminate that State which is now foreign to them. Jew Ivan Ilyin was an apologist for that Jewish ‘legal’ State. Looking at it from the distance of Vienna, I notice that the leaders of so-called nationalist patriots happen to all be Jews with close ties to the Federal Security Service. Communist and democratic crowds also display the very same Jewish patriotism. Lenin would roll over in his grave, hearing about the communists’ support for the neo-colonial war waged by the modern bourgeois imperialist Russia against freedom loving people in the Caucasus. In former times communists supported movements of national liberation on the fringes of the disgusting empire. Now everything is the opposite. All those people are corrupt, went crazy, became morons, chauvinists and patriotic bourgeois ... The Jews fully support and actively strengthen their State: their bastard Yid [ жидовский ] army of Russian slaves and Jewish generals, their bloody dogs of cops and FSB officers; their frantic ‘Israeli-type’ patriotism, their rotten church of Satan and Antichrist (Russian Orthodox Church) with its Yid priests and Yid bishops and so on. Only a bunch of nationalists of Russian blood argue for the total destruction of Jewish Russia. Russia is a Satanist Russia as even the atheist Limonov stated. It should be fully destroyed. In the name of God and the Aryan Russian nation. I am clear that it is about the total destruction of the Russian State of the Yids and its replacement by another State, as Lenin did, and not about a ‘change of regime’. Everything is so rotten, there is nothing to be ‘reformed’. It is in the context of those global problems that the information war between those such as [G.] and myself is going on. Russia must be destroyed! Death to Russia! [D.], Vienna” 22 .     That text was followed by what appeared to be a question from a reader: “Question: Dear Mr Mukhin, what would the following information mean (it was taken from the Kavkaz Centre): ‘Lots of condolences have been sent in relation to the death of the President of the ChRI [1] A.-Kh. Sadulayev ... [D.], Duel ’s correspondent in Vienna, expressed his condolences to the family, the ChRI government and the Chechen people. The Vienna office of the newspaper sympathises with their sorrow caused by the vile murder by Russian occupants and their puppets ... The Vienna office is convinced that [they] will receive rivers of bloody tears for that vile murder.’” It was followed by the applicant’s reply: “From Mr Mukhin: Let me explain. Well, yes, he is our correspondent in Vienna.” 23 .     Some 10,900 copies of that issue of the newspaper were printed and delivered to sellers for further distribution through open sale at newspaper stands or through newspaper subscriptions via Russian Post. It appears that the newspaper was distributed in various regions of Russia, with sales predominantly in Moscow. The newspaper contained a disclaimer that it bore no responsibility for the material submitted by its authors. The issue was also published on the newspaper’s website. 24 .     In August 2006 the applicant published in the newspaper a letter from several readers under the headline “Position”, calling for the newspaper to make a public statement refusing collaboration with D. in view of his support for “Chechen bandits”. The applicant also published his own reply to this letter, indicating as follows: “... The Duel newspaper is a newspaper of its authors, that is those write in it. [D.] is the historical author of the newspaper. So why would we remove him from it? ... Yes, I do not like some issues he has such as blindly following Lenin ... The latter called for Russia’s defeat in the First World War (albeit, without congratulating the Kaiser with victories) in order to give the power to the proletariat. [D.] dares to think that if Putin’s regime falls because of the Chechens, the power in Russia would go to the Russians. Yes, he does not get it that it is all the same camarilla. Is it a reason to kick him off the newspaper? ... You are trying to shut down the [newspaper’s author]? Are you not forgetting what a similar shutting down did to the Communist Party of the Soviet Union and the Soviet Union? ... Freedom of expression is a freedom for everyone. It is not only your freedom or mine.” 25.     According to the applicant, the newspaper then refused to publish any material from D. Related proceedings Anti-extremist caution procedure 26 .     The media regulator commissioned a report from a panel of linguists about the material published on 4 July 2006. On 9 April 2007 the panel concluded that the following parts of D.’s text constituted calls for undermining the national security of the Russian Federation; statements aimed at inciting ethnic and religious discord ( рознь ) as well as social discord combined with calls to violence; statements aimed at debasing the dignity of the Russian nation ( русская нация ); statements calling for the full destruction of the Russian State and people of Jewish and Russian ethnicity: “All those people are corrupt, went crazy, became morons, chauvinists and patriotic bourgeois ... All fully support and actively strengthen their bastard Yid army of Russian slaves and Jewish generals, their bloody dogs of cops and FSB officers; their frantic ‘Israeli’-type patriotism, their rotten church of Satan and Antichrist (Russian Orthodox Church) with its Yid priests and Yid bishops and so on. Only a bunch of nationalists of the Russian blood argue for the total destruction of the Jewish Russia. Russia is a Satanist Russia as even the atheist Limonov stated. It should be fully destroyed. In the name of God and the Aryan Russian nation. I am clear that it is about the total destruction of the Russian State of the Yids and its replacement by another State, as Lenin did, and not about a ‘change of regime’. Everything is so rotten, there is nothing to be ‘reformed’ ... Russia must be destroyed! Death to Russia!” 27 .     On 24 April 2007 the media regulator issued an official caution ( предупреждение ) to the newspaper. The regulator considered that the material (consisting of D.’s letter and the applicant’s additions) published on 4 July 2006 had violated the Suppression of Extremism Act. 28.     It appears that no judicial review of the caution was sought. Classification as “extremist material” under the Suppression of Extremism Act 29.     A district prosecutor brought proceedings before the Zamoskvoretskiy District Court of Moscow, seeking that the texts published on 4 July 2006 under the headline “Death to Russia!” be classified as extremist material in breach of the Suppression of Extremism Act. 30.     Mr S. and the editorial board were named as the respondents in this civil case. The District Court heard arguments from the applicant. Mr S. chose to not participate in the proceedings. 31.     The prosecutor adduced in evidence the findings made in the separate proceedings in which the newspaper had been issued with the official anti-extremism caution (see paragraphs 26-27 above) and an expert report commissioned within the related ongoing criminal proceedings against the applicant (see paragraph 44 below). 32.     The applicant adduced in evidence an opinion from Ms B., who held a PhD in philology and a professor at the Moscow City Pedagogics University, who concluded that the linguistics report of 9 April 2007 (see paragraph 26 above) had been based on incomplete information and had wrongly assessed D.’s text in terms of inciting ethnic discord and calls to overthrowing the constitutional regime. 33.     Having examined the evidence mentioned above, the court commissioned a new linguistics expert report. The expert concluded that the impugned material contained statements aimed at undermining national security; calls for the total destruction of the State; statements aimed at the forcible change of the foundations of the constitutional regime and at the breaching of its territorial integrity; statements aimed at inciting ethnic, social and religious discord, at debasing the dignity of people of Russian ethnicity. The headline “Death to Russia!” called for the destruction of the Russian State and had been aimed at undermining national security, at the forcible change of the foundations of the constitutional regime and at breaching of Russia’s territorial integrity. The expert concluded that the following part of D.’s text contained a call for the total destruction of the State of Russia; statements aimed at undermining national security of the Russian Federation, at the forcible change of its constitutional regime and the breaching of its integrity: “ ... Only a bunch of nationalists of Russian blood argue for the total destruction of the Jewish Russia. Russia is a Satanist Russia as even the atheist Limonov stated. It should be fully destroyed. In the name of God and the Aryan Russian Nation. I am clear that it is about the total destruction of the Russian State of the Yids and its replacement by another State, as Lenin did, and not about a ‘change of regime’. Everything is so rotten, there is nothing to be ‘reformed’ ...” The expert also concluded that the following parts of D.’s text had been aimed at inciting ethnic, social and religious discord: “Overall, ... the debate between [G.] and myself is an example of a fight within the grand information war between nationalists and patriots, that is to say between a huge consolidated mass of Jewish patriots of their Jewish State of the Russian Federation ... with the involvement and public aid of ruling Jews ... Russia’s brainless and zombified mass of people ... and a bunch of nationalists of Russian blood who are determined to eliminate that State which is now foreign to them. ... All those people are corrupt, went crazy, became morons, chauvinists and patriotic bourgeois ...” The expert found that the following part of D.’s text debased the dignity of the people of Russian ethnicity: “... Russian brainless and zombified mass of people ...”; “... All fully support and actively strengthen their bastard Yid army of Russian slaves ...” Lastly, the expert found that the following part of the question ‑ and ‑ answer section added by the applicant had incited ethnic, social and religious discord (see paragraph 22 above): “[D.], Duel ’s correspondent in Vienna, expressed his condolences to the family, the ChRI government and the Chechen people. The Vienna office of the newspaper sympathises with their sorrow caused by the vile murder by Russian occupants and their puppets ...” 34 .     In a judgment of 24 November 2008 the District Court allowed the prosecutor’s claim and classified the impugned texts as extremist material, relying on the findings of that expert report. The court concluded that the impugned texts had contained calls for extremist activities and for the undermining of national security, and had contained statements aimed at inciting ethnic and religious discord as well as social discord relating to calls for violence; statements calling for the complete destruction of the Russian State and people of Russian and Jewish ethnicity. The court dismissed the applicant’s argument that the texts had been a part of a larger discussion and had constituted a personal opinion expressed by D. In the court’s view, personal opinions with extremist content were not allowed under Russian legislation, and thus that argument could not shield the texts from being classified as extremist material. 35 .     On 29 January 2009 the Moscow City Court upheld the judgment. TERMINATION of the newspaper’s mass-media status 36.     After resolving certain jurisdictional issues relating to their initial application in 2006, in September 2007 the media regulator brought court proceedings before the Zamoskvoretskiy District Court of Moscow, seeking that the newspaper be divested of its mass-media status and banned from being distributed. The CIJ – Editorial Board of the newspaper Duel was named as the respondent in this civil case. 37 .     The media regulator referred to the official cautions dated 20   March and 26 April 2006 (see paragraphs 11 and 12 above). It also submitted, as additional evidence, the official caution in relation to the material entitled “Death to Russia!” (see paragraph 27 above) as well as three other official cautions issued between August 2007 and June 2008 in relation to some other articles published in the newspaper between July 2007 and March 2008. 38 .     It appears that the newspaper’s founder, Mr S., was notified of the court proceedings but chose not to participate in them. 39 .     On 26 November 2008 the District Court granted the media regulator’s application and ordered the termination of the mass ‑ media-outlet status of the newspaper . The court noted that the newspaper had been issued with an official caution on 20 March 2006 but had published extremist materials again within twelve months; the first caution had been followed by a second one, on 26 April 2006. Those two official cautions had been upheld on judicial review (see paragraphs 11-16 above). Referring to sections 8 and 11 of the Suppression of Extremism Act and sections 4 and   16 of the Mass Media Act (see paragraphs 67-70 below), the District Court allowed the media regulator’s claim. 40.     The CIJ – Editorial Board of the Duel newspaper appealed against the judgment. The applicant participated in the proceedings as a representative of the CIJ. 41.     The newspaper argued that the legislation cited above required an initial violation of the law (such as dissemination of extremist material) to have been established in an official caution, and the repeat violation of the law. The initial violation had been established in March 2006 by a non ‑ judicial authority. However, it had been outside the purview of the media regulator to classify material being disseminated as “extremist” since only a court, in a separate procedure, was competent to impose such a classification. So far the impugned material had not been classified as extremist (see paragraph 17 above). 42 .     On 19 May 2009 the Moscow City Court upheld the judgment. It noted that within a year, on 20 March and 26 April 2006, the newspaper had been issued with anti-extremism cautions and that those cautions had been upheld on judicial review. The appeal court also dismissed the newspaper’s argument that the media regulator’s application was belated, indicating that no time-limit was prescribed by law for lodging an application for terminating a media outlet’s distribution. 43 .     The legal effect of the courts’ decisions was the divestment of the newspaper’s mass-media status, originally conferred in 1995, and the annulment of the certificate of its registration as a mass-media outlet. Criminal proceedings against the applicant 44 .     Meanwhile, on an unspecified date criminal proceedings were initiated in relation to the publication of D.’s text under the headline “Death to Russia!” on 4 July 2006 (see paragraphs 20-22 above). An expert of the Centre for Special Techniques of the Criminalists Institute of the Federal Security Service was asked to issue a report. In his report of 5   October 2007 he concluded that D.’s text had contained calls for actions aiming at the forcible change of the constitutional regime of the Russian Federation and the breaching of its territorial integrity; and the undermining of national security; it had aimed at inciting racial, ethnic and religious discord associated with violence or threats of violence; and at debasing ethnic (national) dignity; it had contained statements aimed at inciting hatred ( ненависть ) or enmity ( вражда ) or debasing the dignity of the Russian and Jewish populations of the Russian Federation, with reference to their religion(s). The expert also concluded that D.’s text had contained no statements which clearly and unequivocally amounted to calls: for planning, organising or committing any actions aimed at overtaking and usurping public powers; for the creation of unlawful militarised units; for the carrying out of terrorist activities; for massive riots, hooliganism or vandalism or any of the other type of “extremist activity” listed in section 1 of the Suppression of Extremism Act. 45 .     On 15 January 2008 an investigator charged the applicant under Article   280 §   2 of the Criminal Code for public calls, through a mass-media outlet, for the carrying out of extremist activities (see paragraph   63 below). The prosecutor held as follows: “... having a negative attitude towards the existing social and political regime in the Russian Federation and aiming at the undermining of the foundations of the constitutional regime and national security, [the applicant] publicly called via a mass ‑ media outlet for the carrying out of extremist activities ... Having examined D.’s letter, the defendant added to it the headline “Death to Russia!”. Having made that change, in breach of the Suppression of Extremism Act the defendant then published, in the form of an article in his newspaper, this letter that contained calls to carry out actions aimed at: forcible changing the constitutional foundations of the Russian Federation and at breaching its integrity; at undermining the national security of the Russian Federation; at inciting racial, ethnic or religious discord linked to violence or calls to violence; at debasing ethnic dignity ...” 46.     The investigator interviewed Ye., who appeared to be one of the newspaper’s readers, who stated that he had read the article and expressed his negative perception of its content. 47.     The applicant stood trial before the Savelovskiy District Court of Moscow. 48 .     The trial court heard from Da., the deputy chief officer of the Anti ‑ fascist Centre, a non-governmental organisation, who stated that Duel had previously published material of an extremist nature, the impugned article being one example which had demonstrated the applicant’s use of propaganda to promote certain ideas. 49 .     The applicant pleaded not guilty and stated that he had not intended to publicly call for extremist action when he had made an editorial choice to assemble a number of texts (including the text entitled “About [the] mother”) under the headline “Death to Russia!”. He had put that heading so as to stimulate the readers’ interest in those texts. At that time the text entitled “About [the] mother” had not been classified as extremist material by a court, which had been a requirement of Russian law. Under the impugned headline there had been two other texts: a reader’s message consisting of a quotation from the Kavkaz Centre on D.’s support for Chechen separatists and the applicant’s reply to the reader about D. (see paragraph 22 above). In adding those two texts the applicant had wanted to warn the readers and invite them to read D.’s texts critically. The applicant also argued that D.’s text and the phrase “Death to Russia!” in that text or in the headline had lacked any specific addressee and could not have potentially been a successful call to violence and, as a matter of fact, had not been successful since no violence or other harmful consequences had ensued. Thus, the article had been no more than a wish or information or, at worst, a threat. 50.     Following an application by the applicant the court admitted written and oral statements from a number of people who had read the impugned material and concluded that it had contained no calls to carry out extremist activities but had merely been a part of the debate between D. and G. 51.     Following an application by the applicant the court also heard evidence from Ms M. and Ms B., doctors in philology and working at the Russian State Library and the Moscow City Pedagogics University respectively. They stated that the impugned material had contained no calls to extremist activities or insulting statements but, as presented by the editor, that material had alerted the reader to D.’s views. 52 .     The court commissioned an expert report from professionals in psychology and linguistics. The linguists (experts of the Centre for Special Techniques of the Criminalists Institute of the Federal Security Service) concluded that the semantic aim (the main content) of the article entitled “Death to Russia!” had been the author’s statement that he “had not a single drop of Jewish blood!” and that Russia was a Jewish State and “had to be destroyed” (as a Jewish State). The first part of D.’s “letter” had been a reply to G.’s article and had concerned the relationship between the author and G. That part of the article had contained neither calls for any actions against a certain person or group of people nor any threats. The second part of the article had amounted to a classic call for the destruction of the existing State of Russia. The author had indicated what action had been needed to correct the unsatisfactory (in his view) state of affairs in Russia, specifically to destroy that State through violence. The author had considered that course of action as useful for Russia because the situation at that time had not lent itself to reform. The author had not indicated any specific addressee in respect of his call, but the content suggested that the article readers had been its addressees. The article had ended with “Death to Russia!”, while the same phrase had also been placed in the headline of the publication thereby specifying the semantic aim of the publication as a whole, namely the part relating to the destruction of Russia (as a Jewish State). The article contained insulting names for people of Jewish ethnicity, negative emotional assessments of those people and the Russian Orthodox Church. The article contained a positive assessment of the “Russian nation” and a negative assessment of people of Russian ethnicity (when characterising them as slaves within a Jewish State). The article used no linguistic or other means to incite any action against a specific nation, race, religion or people. The psychology expert (holding a Master’s degree in law and working as a chief specialist in psychology assessments within an expert institution of the Ministry of Justice of the Russian Federation) examined the impugned material (the editor’s headline, D.’s text and the editor’s additions) as well as D.’s and G.’s texts published in the newspaper previously and statements from the applicant and some readers provided to him by the defence. The expert concluded that the “article” had amounted to a hidden warning that the applicant (as the editor) had addressed to the reader in relation to D.’s activities. The impugned material had not contained degrading characterisations, negative emotional assessments or negative affirmations in relation to any ethnic, racial, or religious group or their members. D. had given a negative assessment of his ideological and political opponents and the Russian and Chechen authorities’ actions in relation to separatists, the leaders of the so ‑ called non-recognised “Republic of Ichkeriya”. D.’s critical statements about the Russian authorities including the President of the Russian Federation, or the Russian Orthodox Church had been value statements and had constituted his point of view. D.’s text had been a means of communication aimed at defending himself. The text had been more about the political argument rather than sowing any ethnic discord. The semantics of the headline had the aim of drawing the reader’s attention towards D.’s activities and discrediting him. The editor had attempted to provide the readers with the information to form their own judgment about D.’s true nature. The readership’s actual reaction confirmed that the editor had achieved this goal. 53 .     On 18 June 2009 the District Court convicted the applicant under Article 280 § 2 of the Criminal Code for making, via a mass-media outlet, public calls for extremist activities to be carried out (see paragraphs 63 and 66 below). The facts held against the applicant were described as follows: “As the editor-in-chief of the newspaper ..., given his own negative attitude towards the existing social and political regime of the Russian Federation and with the aim of undermining the foundations of the constitutional regime and national security, the defendant issued, via a mass-media outlet, public calls to carry out extremist activities ... Having examined D.’s letter, the defendant added to it the headline “Death to Russia!”. Having made that change, in breach of the Suppression of Extremism Act the defendant then published, in the form of an article in his newspaper, this letter that contained calls to carry out actions aimed at: forcibly changing the constitutional foundations of the Russian Federation and at breaching its integrity; at undermining the national security of the Russian Federation; at inciting racial, ethnic or religious discord linked to violence or calls to violence; at destroying [ уничтожение ] ethnic dignity ...” 54.     In its judgment the trial court held that the findings made by the experts in linguistics and the expert in psychology were not contradictory (see paragraph 52 above). The former only assessed the material (D.’s text and the editor’s headline) from the linguistic point of view, their linguistic approach towards the existence of “calls for extremist activities” not being dependent on any actual harmful consequence or how the text had been perceived by others. Assessment of such a perception fell within the scope of psychological assessment. The expert in psychology had assessed some other material, including various statements made by the parties to the proceedings, witnesses, and readers of the newspaper. That expert had assessed the impact that the impugned material had had on readers. 55.     The trial court considered that the offence under Article 280 of the Criminal Code required no proof of any actual harmful consequences arising from the publication of the impugned material. In that connection the actual perception of that material by certain individuals could not be decisive for finding the applicant guilty or not guilty as charged. 56.     The court rejected the applicant’s argument that D.’s text had discussed an important public issue – that of the Jewish lobby in Russia – and was a response to a previous article criticising D.’s stance on the matter. The court also referred to the fact that in 2008 D.’s text had been banned as “extremist material” (see paragraphs 34-35 above). 57 .     The trial court concluded as follows: “The above evidence and the defendant’s specific actions ... indicate the presence of the defendant’s intent to commit the impugned offence. As an editor-in-chief of a mass-media outlet with a lot of journalistic experience, the defendant examined D.’s letter and, while understanding that it contained extremist material, intentionally authorised its publication and distribution in Russia. He did so on the basis of his own negative attitude towards the existing political regime in Russia, with the aim of undermining the constitutional regime and national security by way of adding the title ‘Death to Russia!’, which is a public slogan and a public call for the destruction of Russia. He thereby repeated the same concluding remark from D.’s letter and indicated the overall aim of the article; he also added further material. In doing so, the defendant made public calls for extremist activities to be carried out ...” 58 .     As regards the sentencing the court held as follows: “When sentencing the defendant the court takes into account the nature and degree of dangerousness of the defendant’s actions, the circumstances of the case, the defendant’s personality, noting that he is being prosecuted for the first time and has positive character references in his area of residence, at his workplace and from his readers. The court considers those circumstances as mitigating. No aggravating circumstances have been established. In view of the foregoing, the effectiveness of a sentence in reforming the defendant and on his household, the court finds it appropriate to impose a custodial sentence ... as well as an additional sentence consisting of banning him from taking up a leadership role within a mass-media outlet.” 59 .     The court sentenced the applicant to a suspended prison term of two years and restricted his right to exercise leadership functions ( должности, связанные с выполнением организационно-распорядительных обязанностей ) in a mass ‑ media outlet for two years. The applicant was required to report regularly to the authority supervising the execution of sentences and to not leave his area of residence without notifying that authority. 60.     The applicant appealed, arguing that the offence under Article 280 of the Criminal Code required the existence of a “call” to carry out extremist activities; no such “call” had been made by the applicant. 61 .     On 16 September 2009 the Moscow City Court upheld the trial judgment in a summary manner. RELEVANT LEGAL FRAMEWORK AND PRACTICE Russian law and practice Constitution of the Russian Federation 62 .     Chapter 1 of the Constitution of the Russi