I incorrectly predicted that there's no violation of human rights in EKAYEV v. RUSSIA.

Information

  • Judgment date: 2023-01-10
  • Communication date: 2017-09-18
  • Application number(s): 29396/15
  • Country:   RUS
  • Relevant ECHR article(s): 6, 6-1, 10, 10-1
  • Conclusion:
    Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.515414
  • Prediction: No violation

  • Inconsistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Abdulla Yunusovich Ekayev, is a Russian national, who was born in 1950 and lives in Tver, Tver Region.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1.
Background to the case The applicant is a journalist, a lawyer and a human rights defender.
He founded the newspaper “Tverskaya gazeta” where he published articles about judges of the Tver Regional Court, including judge K., the President of the Tver Regional Court, revealing their unlawful activities such as corruption (“K., the President of the Regional Court, is considered to be a bribe taker”, “Back to the question of judge K.’s corruption”).
From March to May 2013 judge K. initiated criminal proceedings against the applicant for libel.
2.
Insult of judge A.
On unspecified date criminal proceedings against Mr Kh.
were initiated.
On 14 June 2011 A., a judge of the Tver Regional Court, conducted a preliminary hearing on Mr Kh.’s case.
Mr Kh.
asked the judge to join the applicant to the proceedings as his counsel but judge A. dismissed his request.
On 27 June 2011 judge A. dismissed his second request in this respect.
On 30 August 2011 judge A. convicted Mr. Kh.
of a murder.
On 24 October 2011 the applicant wrote an article under the working heading “Godly petty tyrant (самодур) judge A.” where he described the proceedings against Mr Kh.
and stated that his conviction was unlawful.
After that he sent a letter to judge A. and suggested commenting on the draft article.
The applicant assured judge A. that he would amend the article taking into account his comments, if any.
No reply followed.
On 7 November 2011 the applicant published the article under the heading “Petty tyrant judge A.”.
On 23 December 2011 judge A. asked the investigator to initiate criminal proceedings against the applicant under Article 297 § 2 of the Criminal Code of Russia providing for liability for contempt of court.
In March 2013 criminal case against the applicant was transferred to the Zavolzhskiy District Court of Tver.
On 16 August 2013 the Zavolzhskiy District Court convicted the applicant of insult of a State official under Article 319 of the Criminal Code and sentenced him to a fine of 30,000 roubles (RUB) (685 euros (EUR)), prohibited him to work as a journalist for three years and ordered to pay RUB 1,000,000 (EUR 22,829) in non-pecuniary damage to judge A.
The judgment read as follows: “... [the applicant’s] guilt has been proven during the investigation and trial...
According to expert opinion of 5 March 2012, the materials submitted to the linguistic study (the article ... published on 9 November 2011 and the [applicant]’s letter of 24 October 2011...) contain invective (offensive) wording that is words and expressions humiliating judge A.’s honour and dignity...
The court has established that [the applicant], ... being displeased with the conviction of Mr Kh.
and judge A.’s behaviour who dismissed his request to join the proceedings as Mr. Kh.’ counsel, intending to insult the judge, a State official, wrote and sent judge A. a letter ... containing words and expression humiliating honour and dignity of the judge... With the same intention to insult judge A., [the applicant] published an article on judge A. in which he provided negative assessment of judge A.’s professional skills, his moral portrait, humiliated his honour and dignity, by using indecent words and expressions when describing proceedings against Mr Kh.”.
The court dismissed expert opinions submitted by the applicant stating that they did not contain any conclusions as to whether the wording used in the article and letter was humiliating.
The applicant lodged an appeal and a challenge against all judges of the Tver Regional Court and asked to transfer his case to another jurisdiction for consideration.
On 31 October 2013 the Tver Regional Court, presided over by judge S., upheld the applicant’s conviction on appeal reiterating the District Court’s reasoning and dismissed his request to transfer the case to another jurisdiction.
The court held that judge S., who had been assigned to the case, was not judge A.’s subordinate and therefore there was no reason to doubt her independency and impartiality.
B.
Relevant domestic law 1.
Impartiality According to Code of Criminal Procedure of Russia, a judge may not engage in criminal proceedings: (1) if he or she is a victim, civil claimant, civil defendant or witness in these criminal proceedings; (2) if he or she was involved in these criminal proceedings as a jury, expert, specialist, interpreter, attesting witness, courtroom secretary, defender, legal representative of the suspect, civil claimant or civil defendant, investigator or prosecutor; (3) if he or she is a close relative or a relative of any person involved in the criminal proceedings; (4) if there are any other reasons to believe that he or she may be directly or indirectly interested in the outcome of the criminal proceedings.
A challenge against a judge dealing with a criminal case may not be lodged only on the ground that the judge has allegedly received an unofficial massage relating to this criminal case (Article 61).
In case a challenge against a judge, some of the judges or all judges is allowed, the criminal case shall be remitted to other judge or judges according to the procedure prescribed by the Code of Criminal Procedure (Article 65 § 5).
The venue may be changed (1) at the request of a party to criminal proceedings in case his or her challenge against all judges has been granted; (2) at the request of a party or at the initiative of the president of the court which received the case, where: - all judges of this court have previously engaged in criminal proceedings on the case; - all parties to the criminal proceedings do not live on the territory under the court’s jurisdiction and all accused persons agree to the change of venue.
Change of venue may be granted only before the day of trial (Article 35).
2.
Insult of a State official Article 319 of Criminal Code of Russia provides that public insult of a State official on duty is punishable by a fine of up to RUB 40,000 or in the amount of salary or other income of a convict for the period of up to three months, or by public labour for up to 360 hours, or correctional labour at the convicted person’s place of work for up to one year.
COMPLAINTS The applicant complains under Article 6 of the Convention that a judge of the Tver Regional Court was biased to him because of his activities revealing judges’ illegal conduct.
He complains under Article 10 of the Convention that he was penalised for expressing his opinion on the functioning of judiciary in his region, a question of general interest.

Judgment

THIRD SECTION
CASE OF EKAYEV v. RUSSIA
(Application no. 29396/15)

JUDGMENT
STRASBOURG
10 January 2023

This judgment is final but it may be subject to editorial revision. In the case of Ekayev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President, Jolien Schukking, Darian Pavli, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 29396/15) 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 22 January 2014 by a Russian national, Mr Abdulla Yunusovich Ekayev, born in 1950 and living in Tver (“the applicant”) who was represented by Mr S.N. Mazukhin, lawyer practising in Tver;
the decision to give notice of the complaints concerning the right to freedom of expression and impartial tribunal to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns freedom of expression issues. The applicant is a journalist, a lawyer and a human rights defender. He founded the newspaper Tverskoy Reporter and published several articles revealing allegedly unlawful activities of the judges of the Tver Regional Court, such as corruption. Between March and May 2013 judge K., one of the judges of the above court, initiated criminal proceedings against the applicant for libel. 2. In October 2011 the applicant published an article about another judge of the Tver Regional Court under the heading “Petty tyrant (самодур) judge A.” . He stated, in particular:
“... A petty tyrant is bad in everything. When working in the judiciary, he becomes a danger for the society. [Mr Kh.] was not lucky. He was tried by [Mr A. ], a petty tyrant judge of the Tver Regional Court, entangled in worldly vices. I have often seen judicial absurdity. I am used to not being surprised. But this time I was struck by his professional and ethical cynicism. ... At the first hearing judge A. threatened Mr Kh. by saying ‘You know my reputation’. You cannot find these words in the minutes of the hearing, they are carefully recorded in the memory of those present and on audio. It is difficult to find the truth at a court when a judge demonstrates his bias.”
The applicant further described criminal proceedings and trial against Mr Kh. He referred to examples of abuse by judges in criminal cases initiated against other persons. He also sent a letter to judge A. asking for comments on the article. 3. By decision of 16 August 2013, upheld on appeal on 31 October 2013 by judge S. of the Tver Regional Court, the Zavolzhskiy District Court convicted the applicant of insult of a State official in criminal proceedings. In 2014-2017 the applicant tried to quash this conviction. 4. On 26 February 2018 a judge of the Supreme Court remitted his cassation appeal to the Presidium of the Tver Regional Court. It was decided to change the venue and transfer the case, in order to avoid any doubts as to impartiality, to the Presidium of the Yaroslavl Regional Court. The latter quashed the conviction and remitted the case for fresh examination holding that the trial court could have been biased due to judge A.’s status as a victim in the applicant’s case. 5. By decision of 7 October 2019, as upheld by the Moscow Regional Court on 19 December 2019, the Klin Town Court of the Moscow Region convicted the applicant of contempt of the court. The court sentenced the applicant to a fine of 100,000 Russian roubles (RUB), exempted him from execution of the sentence due to expiry of limitation period and ordered to pay RUB 1,000,000 in non-pecuniary damage to judge A. The court held that the applicant’s guilt had been proven during the investigation and trial. According to expert opinion, the letter and the article contained offensive wording against judge A.’s honour and dignity. THE COURT’S ASSESSMENT
6. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 7. The Court recalls the general principles concerning the freedom of press and criticism of public officials, members of the judiciary, in particular (see Skałka v. Poland, no. 43425/98, §§ 32-35, 27 May 2003; Grebneva and Alisimchik v. Russia, no. 8918/05, §§ 51-54, 22 November 2016; and Benitez Moriana and Iñigo Fernandez v. Spain, nos. 36537/15 and 36539/15, §§ 44‐49, 9 March 2021). As to the form of expression, the Court has held that the work of the courts, which are the guarantors of justice, and which have a fundamental role in a State governed by the rule of law, needs to enjoy public confidence. It should therefore be protected against unfounded attacks. At the same time, save in the case of gravely damaging attacks that are essentially unfounded, judges may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner. When acting in their official capacity, they may thus be subject to wider limits of acceptable criticism than ordinary citizens (see Benitez Moriana and Iñigo Fernandez, cited above, § 48, with further references). 8. The applicant’s conviction amounted to an interference with his freedom of expression and this interference was “prescribed by law”, namely the Criminal Code, applicable at the relevant time. It is also a common ground that the interference pursued a legitimate aim of maintaining the authority of the judiciary and to protect the reputation or rights of others. 9. The applicant was a journalist, and in that quality his task was to impart information and ideas on matters of public interest. There is a clear distinction between criticism and insult. In the instant case, the applicant used the expression “petty tyrant”, which constituted a value judgment in the circumstances. His intent was to draw attention to the alleged abuse by judges of their powers, a matter of public interest. 10. The judges, as part of the judicial machinery, should enjoy protection from offensive and abusive verbal attacks and unfounded accusations (see Benitez Moriana and Iñigo Fernandez, cited above, § 47, with further references). In the present case, the applicant clearly stated the above problem of general interest in the beginning of the article. His further remarks, though sometimes emotional, mostly concerned particular proceedings and conduct of judge A. and his perception of this conduct. Therefore, it cannot be said that such criticism was theoretical or general. He criticised the judge when he acted in his professional capacity (compare with Benitez Moriana and Iñigo Fernandez, cited above, § 55). The domestic courts made no attempt to examine the contents of the article in question with a view to establishing whether the wording used by the applicant constituted an insult or gratuitous personal attack on judge A. In their assessment of the impugned article the domestic courts failed to take any account of the context in which the publication was made, and to examine whether it involved a matter of general interest. They did not cite any passages from the article in support for their conclusion regarding the insulting nature of the publication. 11. The domestic courts limited their analysis to summarising the applicable legal provisions, the parties’ submissions and the conclusions of the expert report. They endorsed the experts’ conclusions without making any meaningful assessment of them, referring only to their overall findings. However, the expert examinations went beyond resolving merely language issues. Rather than restricting themselves to defining the meaning of particular words or explaining their potential impact, they provided in essence a legal qualification of the text. The Court has already stressed that all legal matters must be resolved exclusively by the courts (see Dmitriyevskiy v. Russia, no. 42168/06, § 113, 3 October 2017). 12. As regards the severity of the sanction, the domestic courts did not provide sufficient reasons justifying the imposition of criminal liability. In addition, the amount of non-pecuniary damage ordered to be paid by the applicant to judge A. was unusually high in absolute terms but also many times higher in relation to awards in some comparable defamation cases that have come before the Court (see for example, Fedchenko v. Russia, no. 33333/04, § 15, 11 February 2010, and Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 15, 28 March 2013). The courts did not take into account the applicant’s financial situation (see Tolmachev v. Russia, no. 42182/11, § 54, 2 June 2020). 13. There has accordingly been a violation of Article 10 of the Convention. 14. The applicant also complained under Article 6 of the Convention that judge S. who had considered his appeal in the first round of proceedings had been biased. The Court has examined that part of the application and considers that the applicant lost his victim status as his fist conviction was quashed and the case was re-examined by a new composition. 15. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. The applicant claimed RUB 1,100,000 in pecuniary damage on account of the fine and award made to judge A. and 10,000 euros (EUR) in non-pecuniary damage. 17. The Government submitted that the applicant’s claims are excessive and unsubstantiated. 18. The Court awards the applicant EUR 13,000 in respect of pecuniary damage and EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georgios A. Serghides Deputy Registrar President

THIRD SECTION
CASE OF EKAYEV v. RUSSIA
(Application no. 29396/15)

JUDGMENT
STRASBOURG
10 January 2023

This judgment is final but it may be subject to editorial revision. In the case of Ekayev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President, Jolien Schukking, Darian Pavli, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 29396/15) 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 22 January 2014 by a Russian national, Mr Abdulla Yunusovich Ekayev, born in 1950 and living in Tver (“the applicant”) who was represented by Mr S.N. Mazukhin, lawyer practising in Tver;
the decision to give notice of the complaints concerning the right to freedom of expression and impartial tribunal to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns freedom of expression issues. The applicant is a journalist, a lawyer and a human rights defender. He founded the newspaper Tverskoy Reporter and published several articles revealing allegedly unlawful activities of the judges of the Tver Regional Court, such as corruption. Between March and May 2013 judge K., one of the judges of the above court, initiated criminal proceedings against the applicant for libel. 2. In October 2011 the applicant published an article about another judge of the Tver Regional Court under the heading “Petty tyrant (самодур) judge A.” . He stated, in particular:
“... A petty tyrant is bad in everything. When working in the judiciary, he becomes a danger for the society. [Mr Kh.] was not lucky. He was tried by [Mr A. ], a petty tyrant judge of the Tver Regional Court, entangled in worldly vices. I have often seen judicial absurdity. I am used to not being surprised. But this time I was struck by his professional and ethical cynicism. ... At the first hearing judge A. threatened Mr Kh. by saying ‘You know my reputation’. You cannot find these words in the minutes of the hearing, they are carefully recorded in the memory of those present and on audio. It is difficult to find the truth at a court when a judge demonstrates his bias.”
The applicant further described criminal proceedings and trial against Mr Kh. He referred to examples of abuse by judges in criminal cases initiated against other persons. He also sent a letter to judge A. asking for comments on the article. 3. By decision of 16 August 2013, upheld on appeal on 31 October 2013 by judge S. of the Tver Regional Court, the Zavolzhskiy District Court convicted the applicant of insult of a State official in criminal proceedings. In 2014-2017 the applicant tried to quash this conviction. 4. On 26 February 2018 a judge of the Supreme Court remitted his cassation appeal to the Presidium of the Tver Regional Court. It was decided to change the venue and transfer the case, in order to avoid any doubts as to impartiality, to the Presidium of the Yaroslavl Regional Court. The latter quashed the conviction and remitted the case for fresh examination holding that the trial court could have been biased due to judge A.’s status as a victim in the applicant’s case. 5. By decision of 7 October 2019, as upheld by the Moscow Regional Court on 19 December 2019, the Klin Town Court of the Moscow Region convicted the applicant of contempt of the court. The court sentenced the applicant to a fine of 100,000 Russian roubles (RUB), exempted him from execution of the sentence due to expiry of limitation period and ordered to pay RUB 1,000,000 in non-pecuniary damage to judge A. The court held that the applicant’s guilt had been proven during the investigation and trial. According to expert opinion, the letter and the article contained offensive wording against judge A.’s honour and dignity. THE COURT’S ASSESSMENT
6. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 7. The Court recalls the general principles concerning the freedom of press and criticism of public officials, members of the judiciary, in particular (see Skałka v. Poland, no. 43425/98, §§ 32-35, 27 May 2003; Grebneva and Alisimchik v. Russia, no. 8918/05, §§ 51-54, 22 November 2016; and Benitez Moriana and Iñigo Fernandez v. Spain, nos. 36537/15 and 36539/15, §§ 44‐49, 9 March 2021). As to the form of expression, the Court has held that the work of the courts, which are the guarantors of justice, and which have a fundamental role in a State governed by the rule of law, needs to enjoy public confidence. It should therefore be protected against unfounded attacks. At the same time, save in the case of gravely damaging attacks that are essentially unfounded, judges may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner. When acting in their official capacity, they may thus be subject to wider limits of acceptable criticism than ordinary citizens (see Benitez Moriana and Iñigo Fernandez, cited above, § 48, with further references). 8. The applicant’s conviction amounted to an interference with his freedom of expression and this interference was “prescribed by law”, namely the Criminal Code, applicable at the relevant time. It is also a common ground that the interference pursued a legitimate aim of maintaining the authority of the judiciary and to protect the reputation or rights of others. 9. The applicant was a journalist, and in that quality his task was to impart information and ideas on matters of public interest. There is a clear distinction between criticism and insult. In the instant case, the applicant used the expression “petty tyrant”, which constituted a value judgment in the circumstances. His intent was to draw attention to the alleged abuse by judges of their powers, a matter of public interest. 10. The judges, as part of the judicial machinery, should enjoy protection from offensive and abusive verbal attacks and unfounded accusations (see Benitez Moriana and Iñigo Fernandez, cited above, § 47, with further references). In the present case, the applicant clearly stated the above problem of general interest in the beginning of the article. His further remarks, though sometimes emotional, mostly concerned particular proceedings and conduct of judge A. and his perception of this conduct. Therefore, it cannot be said that such criticism was theoretical or general. He criticised the judge when he acted in his professional capacity (compare with Benitez Moriana and Iñigo Fernandez, cited above, § 55). The domestic courts made no attempt to examine the contents of the article in question with a view to establishing whether the wording used by the applicant constituted an insult or gratuitous personal attack on judge A. In their assessment of the impugned article the domestic courts failed to take any account of the context in which the publication was made, and to examine whether it involved a matter of general interest. They did not cite any passages from the article in support for their conclusion regarding the insulting nature of the publication. 11. The domestic courts limited their analysis to summarising the applicable legal provisions, the parties’ submissions and the conclusions of the expert report. They endorsed the experts’ conclusions without making any meaningful assessment of them, referring only to their overall findings. However, the expert examinations went beyond resolving merely language issues. Rather than restricting themselves to defining the meaning of particular words or explaining their potential impact, they provided in essence a legal qualification of the text. The Court has already stressed that all legal matters must be resolved exclusively by the courts (see Dmitriyevskiy v. Russia, no. 42168/06, § 113, 3 October 2017). 12. As regards the severity of the sanction, the domestic courts did not provide sufficient reasons justifying the imposition of criminal liability. In addition, the amount of non-pecuniary damage ordered to be paid by the applicant to judge A. was unusually high in absolute terms but also many times higher in relation to awards in some comparable defamation cases that have come before the Court (see for example, Fedchenko v. Russia, no. 33333/04, § 15, 11 February 2010, and Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 15, 28 March 2013). The courts did not take into account the applicant’s financial situation (see Tolmachev v. Russia, no. 42182/11, § 54, 2 June 2020). 13. There has accordingly been a violation of Article 10 of the Convention. 14. The applicant also complained under Article 6 of the Convention that judge S. who had considered his appeal in the first round of proceedings had been biased. The Court has examined that part of the application and considers that the applicant lost his victim status as his fist conviction was quashed and the case was re-examined by a new composition. 15. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. The applicant claimed RUB 1,100,000 in pecuniary damage on account of the fine and award made to judge A. and 10,000 euros (EUR) in non-pecuniary damage. 17. The Government submitted that the applicant’s claims are excessive and unsubstantiated. 18. The Court awards the applicant EUR 13,000 in respect of pecuniary damage and EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georgios A. Serghides Deputy Registrar President