CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 janvier 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 16 January 2020   Published on 3 February 2020   THIRD SECTION Application no. 618/18 Ruslan Gennadyevich SOKOLOVSKIY against Russia lodged on 21 December 2017 STATEMENT OF FACTS 1.     The applicant, Mr Ruslan Gennadyevich Sokolovskiy, is a Russian national, who was born in 1994 and lives in Shadrinsk. He is represented before the Court by Mr D. Gaynutdinov, a lawyer resident in Sofia, Bulgaria. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant is a popular video content creator. At the material time his YouTube channel had more than 470,000 subscribers and more than 4,200,000 views. Between July 2015 and August 2016 he recorded and uploaded the following nine videos: 4.     The video “I flew into space but did not see any Chechens up there” (a paraphrase of Nikita Khrushchev’s line about the Soviet State’s anti-religion campaign “Gagarin flew into space but did not see any God up there”) commented on the decision by a district court in the Chechen Republic to ban an atheist group in a popular social network. 5.     The video “Hate mail from believers” showed the applicant reading hate mail from religious believers and commenting on it. 6.     The video “Hate mail from feminists” showed the applicant reading comments relating to feminism and gender equality and commenting on them. 7.     The video “I joined the cult” gave the applicant’s views on the Russians’ new-found enthusiasm for various sectarian movements. 8.     The video “Muslim suicide at the Unified State Examination” touched a variety of subjects, including teenage suicides, ritual slaughter of sheep by Muslim believers in Yekaterinburg, and the internet blackout during a state examination in Iraq. 9.     The video “Patriarch Kirill, you are a f...” commented on public statements by the head of the Russian Orthodox Church, Patriarch Kirill. 10.     The video “Catching Pokémon in a church [Pokémon Go prank]” showed the applicant walking around the Church of All Saints in Yekaterinburg and playing the augmented-reality mobile game Pokémon   Go on his smartphone. The game uses the smartphone’s positioning system and camera to locate and capture virtual creatures, called Pokémon, which appear on the screen overlaid on the player’s real-world surroundings. A short music theme in which profanities were sung to the tune of a Church hymn could be heard in the video. The applicant commented on the video as follows: “As you know, they have introduced [criminal] responsibility for chasing Pokémon in a church. This is what you definitely should avoid doing ... The punishment is harsh: a fine of up to half a million roubles or imprisonment for up to three years. For me, this is complete nonsense because who would take offence if you walk around the church with a smartphone in your hand? ... Therefore, I decided to just go and catch Pokémon in the church ... I think it is safe and not prohibited by law ... But you know I did not catch the rarest of all Pokémon I could have found there, Jesus. Nothing doing. Some people say he does not exist, so I am not surprised.” 11.     The video “Ideal Orthodox marriage” showed the applicant’s reaction to the Russian Orthodox Church’s published guidance to future spouses: “In short, they tell us to live like paupers, in cramped conditions, with a bunch of kids ... Bullshit, who will grow up there?! ... Summing up, I’d rather not let the Russian Orthodox Church go into the matters that are not their own. I would like them to not exist at all and in any case to not mess with libraries, schools or the existing institution of marriage.” 12.     The final video “Sokolovskiy in prison for catching Pokémon” showed the applicant’s reaction to the institution of criminal proceedings against him for playing Pokémon Go in a church: “I did it, of course, in protest. I saw them saying on TV that walking around with your smartphone in a public place can get you imprisoned or fined for up to half a million roubles. For me, this is some utter nonsense, and therefore I decided to protest against it ... to show by my example that it is normal. We should not live in a country where our hands and feet are tied up because of some zealots.” 13.     The police charged the applicant with offences under Articles 282 (incitement of hatred or enmity) and Article 148 (public actions insulting religious beliefs) of the Criminal Code for having punished the videos. On 2   September 2016 the police searched his flat and seized a recording “spy pen” which resulted in an additional charge under Article 138 of the Criminal Code (unlawful possession of devices for covert collection of information) being brought against him. 14.     On 3 September 2016 the Kirovskiy District Court in Yekaterinburg put the applicant under house arrest. 15.     The investigator took a statement from the applicant’s co-worker Mr   S. He stated that the applicant had made no attempt to conceal his negative attitude to religion. He had made fun of Christianity and Islam and disrespected their followers. 16.     On 17 January 2017 the investigator commissioned a team of experts in psychology, linguistics, religious and social studies from the Urals State Pedagogical University to carry out a composite forensic assessment of the videos. He asked the experts to determine whether or not the videos contained information seeking to incite hatred, to undermine religious or racial dignity, to insult sensibilities of religious believers, and whether or not the author’s conduct had been “purposeful” ( целенаправленные действия ). 17.     On 25 January 2017 the experts returned their findings which were communicated to the applicant’s defence on 3 February 2017. His counsel raised the objections that the decision to commission the report had not been notified to them until after the report had been completed, that the experts had lacked the qualifications, and that the questions which the investigator had asked them to resolve had been issues of law rather than issues of fact. The investigator dismissed the objections as “a defence tactic calculated to avoid criminal responsibility”. 18.     The trial was held in the Verkh-Issetskiy District Court in Yekaterinburg from 13 March to 11 May 2017. The applicant pleaded not guilty: he maintained that he had created a YouTube channel to express his view on current issues, that he had not sought to offend anyone or to incite hatred, that he had recorded his first video in support of the murdered journalists of Charlie Hebdo, and that he had made a total of 180 videos, none of which had been restricted by YouTube or the telecoms regulator. 19.     The court heard evidence from Orthodox Christian and Muslim believers who had been called to testify by the prosecution. They stated they had watched the videos online after their friends had told them to do so. One witness said that a member of the clergy of the local Orthodox church had arranged for a viewing of the videos on the church premises. Another witness, an Orthodox priest, stated that after finding out about the criminal proceedings against the applicant, he had told his parishioners to go to the Investigations Committee and to give evidence against him. The witnesses claimed having taken offence at Jesus being compared to a Pokémon, the applicant playing in a church, foul language being used to dub a church hymn, and at hostile statements about Patriarch Kirill, the Russian Orthodox Church and the Muslims. On cross-examination by the defence, the witnesses were unable to name any of the videos or to quote any offending statements. 20.     Another group of witnesses, which included Orthodox and Lutheran Christians, agnostics and atheists, had been invited by the defence. They did not consider the videos offensive or degrading and considered them to be an expression of the applicant’s critical position couched in the language which is suited to a young audience. 21.     Three character witnesses were called to testify. The applicant’s schoolmate Mr M. said that the applicant had entertained a “rather negative view” of religion but he had never disparaged believers or any ethnicities. Ms S., M.’s girlfriend, claimed that M. had told her that the applicant had spoken rudely about various confessions and ethnicities, chiefly the Muslims from the North Caucasus, that he had called them stupid and narrow-minded, criticised the political regime in Russia and wanted to go to live abroad. Mr S. did not attend the trial and his statement (see paragraph 15 above) had been read out, despite the objections by the defence. 22.     On 11 May 2017 the District Court found the applicant guilty as charged and sentenced him to three and a half years’ imprisonment conditional on three-year probation. The court held that the applicant had deliberately committed a number of extremist offences by means of publishing videos on his personal accounts in the VKontakte and YouTube social media. The court unreservedly endorsed the experts’ findings to the effect that the following elements of the applicant’s speech constituted extremism and hurt the sensibilities of religious believers: (a)     suggesting that Muslims follow ancient customs, beliefs and traditions that are negatively viewed in contemporary culture; (b)     speaking approvingly of the police arresting Muslims during a religious celebration; (c)     denouncing Patriarch Kirill for his views and endowing him with “humiliating traits”; (d)     comparing Jesus Christ to a Pokémon or a zombie; (e)     denying the existence of the founders of Christianity and Islam, Jesus Christ and Prophet Muhammad; (f)     using foul language to speak about God, and (g)     breaching the traditional code of conduct and internal regulations of religious organisations. Relying on the pre-trial statement by Mr S. and the testimony of Ms S., the court considered it established that the applicant entertained a negative view of other ethnicities, religious believers and the institution of religion. 23.     In his statement of appeal, the applicant complained in particular that he was unable to put questions to the experts or to cross-examine Mr S. who had not attended the trial. 24.     On 7 July 2017 the Svedlovskiy Regional Court rejected the appeal in a summary fashion and upheld the conviction, reducing the period of probation by one year. COMPLAINT 25.     The applicant complains under Article 10 of the Convention of a violation of his right to freedom of expression. QUESTIONS TO THE PARTIES Was there a violation of Article 10 of the Convention on account of the applicant’s conviction for the publication of a series of videos? In particular, did the Russian courts apply standards which were in conformity with the principles embodied in Article 10 of the Convention? Did they take into account the context in which the publication was made and identify the legitimate aim of the interference? What specific parts of the applicant’s videos were found to be problematic? Did they contain any calls to violence or a justification of violence? Did the courts make their own assessment of the expert evidence, resolve the issues of law and specify what kind of extremist activities the applicant had made calls for?