Publisher’s criminal conviction for hate speech did not violate freedom of expression

JUDGMENT

Atamanchuk v. Russia  11.02.2020 (no. 4493/11)

see here

SUMMARY

The case concerned a businessman’s conviction for inciting hatred and enmity following statements
about non-Russians in an article published in a local newspaper.

The Court found in particular that the applicant’s sweeping remarks had not contributed to any
public debate and agreed with the national courts’ assessment of them as stirring up emotions or
prejudices against the local population of non-Russian ethnicity.

Moreover, the courts had been justified in fining him and banning him from journalistic or publishing
activities for two years, given that those sentences had been imposed in the context of legislation
against hate speech. Moreover, the sentences had not had any significant consequences for the
applicant who was more of a businessman than a journalist.

PROVISIONS

Article 6

Article 10

PRINCIPAL FACTS

The applicant, Vladimir Atamanchuk, is a Russian national who was born in 1951 and lives in Sochi
(Russia). He is a businessman and a local politician. He also owns a local newspaper (circulation of
8,000).

The case concerned an article he published in another local newspaper the day before the 2008
presidential election.

Headlining the March 2008 article “Why I will not vote in these elections”, Mr Atamanchuk
expressed his views on the notion of the “people”, and made remarks about non-Russian groups’
ethnic characteristics. He stated in particular that these groups were prone to crime, would
“slaughter, rape, rob and enslave, in line with their barbaric ideas” and “participat[ed] in the
destruction of the country”.

He was convicted in July 2010 of inciting hatred and enmity and of debasing the human dignity of a
person or group of people on account of their ethnicity, language, origin and religious beliefs. The
domestic court essentially based its findings on reports drawn up by experts in linguistics and
psychology who had analysed the article and concluded that it had incited readers to feel hatred
towards the local population of non-Russian ethnicity, but did not call for violent action against
them.

He was fined 200,000 Russian roubles (about 5,086 euros at the time) for the March 2008 article and
the same amount for the subsequent reprinting of the article in his newspaper during the
proceedings against him. He was also prohibited from exercising any journalistic or publishing
activities for two years.

Mr Atamanchuk appealed, complaining that the trial court had refused to summon a specialist in
philology whose report had been mentioned among the evidence against him. The judgment was
however upheld on appeal in September 2010, without ruling on this complaint.

THE DECISION OF THE COURT…

Article 10 (freedom of expression)

The Court noted that Mr Atamanchuk’s prosecution, based on the relevant provisions of the Russian
Criminal Code concerning hate speech, had been “prescribed by law”. It also accepted that the aim
of his prosecution and conviction had been to protect the “rights of others”, specifically the dignity
of people of non-Russian ethnicity living in the Krasnodar Region in Russia.

The Court reiterated that freedom of expression constituted one of the essential foundations of a
democratic society and was applicable also to language, such as used in the applicant’s article, that
“offended, shocked or disturbed.” Any restrictions on this freedom of expression had to be
convincingly established, bearing in mind an interplay of various factors, such as the context in which
the statements in question had been made, their nature and wording and whether they had directly
or indirectly called for violence, hatred or intolerance.

The applicant’s article had been published in the context of an election campaign and had been
intended to present his views on why he would not participate. However, the Court found that it was
questionable whether his ensuing discourse, making sweeping remarks about non-Russian ethnic
groups, had followed any particular logic vis-à-vis the initial topic or indeed whether it had
contributed to any public debate.

Furthermore, the Court agreed with the national courts that the wording of certain statements could
reasonably be assessed as stirring up emotions or embedded prejudices against the local population
of non-Russian ethnicity, especially seeing as it had been published in newspapers with distribution
figures of 8,000 and 10,000 within a multi-ethnic region.

Even though the article had not contained any explicit calls for acts of violence or other criminal acts,
it had been within the authorities’ discretion (“margin of appreciation”) to react in some manner.

Lastly, the Court found that their reaction had not been disproportionate in the circumstances of the
case. Importantly, the sentences had been imposed in the context of legislation aimed at fighting
hate speech. Moreover, the ban on exercising journalistic or publishing activities had not apparently
had any significant consequences for the applicant, whose main professional activity was as a
businessman, with him only occasionally publishing articles in local newspapers other than his own.
It therefore found that the national courts had given relevant and sufficient reasons in the context of
the case for prosecuting and convicting the applicant and that there had been exceptional
circumstances justifying the sentences imposed on him. There had therefore been no violation of
Article 10.

Article 17 (prohibition of abuse of rights)

The Government had argued that the applicant’s unacceptable sweeping remarks about the local
population of non-Russian ethnicity had been outside the protective scope of Article 10 of the
Convention and that the related complaint concerning his criminal conviction had to be dismissed
with reference to Article 17.

As indicated above, the Court assessed whether the interference with the applicant’s freedom of
expression on account of his criminal conviction and the sentences imposed on him had been
compliant with Article 10 of the Convention, namely whether it had been “prescribed by law”,
pursued a legitimate aim and, above all, had been “necessary in a democratic society”. Having
concluded that there had been no violation of Article 10, the Court held unanimously that it was not
necessary to decide whether Article 17 was to be applied.

Article 6 (right to obtain attendance and examination of witnesses)

The Court considered that, even though the courts had not provided reasons for dismissing the
applicant’s request to question the philology specialist in court, the proceedings against him had as a
whole been fair.

The philology specialist’s findings, which had been unfavourable to the applicant and mentioned
among the evidence in support of his guilt, had been consistent with the expert reports in linguistics
and psychology. There had been no allegation that the applicant had been restricted in challenging
those expert reports on which both the trial and appeal courts had primarily relied to convict him.
Moreover, it was unclear what questions exactly the applicant had wanted to put to the philology
specialist during the trial or on appeal.

The Court therefore concluded that, in those circumstances, there had been no violation of Article 6.

Separate opinions

Judge Lemmens expressed a concurring opinion, while judge Serghides expressed a dissenting
opinion. These opinions are annexed to the judgment.


ECHRCaseLaw

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