Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
Closed Expands Expression
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The European Court of Human Rights found a violation of the right to freedom of expression in a case where a journalist received a five-year prison sentence and a three-year ban on practicing journalism for having published a newsletter that primarily discussed the war in Chechnya. The Russian authorities had brought criminal proceedings against the journalist, Mr. Stomakhin, for publishing articles that allegedly (i) appealed to extremist activities and to violence, (ii) justified and glorified terrorism, and (iii) incited hatred and enmity. The European Court of Human Rights agreed that some of the articles had gone beyond the acceptable limits of freedom of expression. However, it considered each impugned statement in turn to determine whether the domestic courts were justified in relying on them as the basis for Mr. Stomakhin’s conviction. In doing so, the European Court found that there was no “pressing social need” for the domestic courts to convict Mr. Stomakhin for a number of statements that were levelled against the Russian government, including calls to record atrocities committed by the Russian authorities in Chechnya and a request to abstain from the presidential elections. The Court also found that the penalty imposed was too harsh, even as a sanction for the statements that could be justifiably criminalized under Article 10 of the European Convention on Human Rights, taking into account the limited distribution of the newsletter. Therefore, the European Court found there to have been a violation of Mr. Stomakhin’s right to freedom of expression.
The case concerned Boris Vladimirovich Stomakhin, who was an activist, journalist and founder, publisher and editor-in-chief of a monthly newsletter called Radikalnaya Politika (“Radical Politics”). He used to publish his own articles in the newsletter, as well as articles of other people with similar views and excerpts from official and non-official sources of information and the mass media. The articles related, to a great extent, to events in the Chechen Republic.
Between 2003 and 2004, he published a series of articles in his newsletter that gave rise to criminal proceedings against him. In an article entitled “From the interview given by M. Udugov [First Deputy Prime Minister of the self-proclaimed Chechen Republic of Ichkeria (CRI)] to the Kavkaz Center press agency”, the hostage-taking at the Dubrovka Theater in Moscow in October 2002 was described as the action of “heroic Chechen rebels”. Another article stated that the author, who was not Mr. Stomakhin, could understand the motivations for the hostage taking and spoke positively about the event. In another article carrying the headline “Insanity [defense] of Budanov [is] a guarantee of victory for [the leader of the Chechen rebel separatist movement] Basayev”, reference was made to a high-ranking Russian officer standing trial for torturing and murdering an 18-year-old Chechen woman and the finding of “not guilty by reason of insanity” in his case. This article stated that the Russian army was full of “maniacs, bloodthirsty sadists, murderers and degenerates”, and called for everyone involved with policing, the intelligence services, the military and navy (including Vladimir Putin) to be subject to mandatory psychiatric examination. It also appealed for dozens of Chechen snipers to take up positions and kill “aggressors” and “Russian invaders”.
In the same issue of the newsletter as the articles above, Mr. Stomakhin reproduced information from the website regions.ru regarding a police operation by a unit of the regional Department of the Interior aimed at setting free Uzbek nationals who had been held in slavery by Russian nationals. The article carried the headline “Russians have slaves and dare to squawk something about Chechens”. Another article was headlined “Orthodox [believers] went completely nuts” and talked about unidentified “Orthodox theologians” who, in a booklet called “Foundations of the Orthodox Faith”, had allegedly claimed that “Jesus Christ [had been] crucified not by Jews but by Chechens”.
In later issues, the newsletter contained articles supporting “Chechnya at war” and calling for Russia to be “destroyed”. It referred to the Moscow train bombing in 2004 as being “justified, natural and lawful.” It referred to Russian activities in Chechnya as amounting to genocide and called for retribution against Russia. It spoke positively about events such as deaths of federal servicemen or law enforcement officers in the Chechen Republic, and violent attacks and assaults on public officials or police officers in parts of Russia.
Some articles urged people not to take part in the Russian elections. Another article issued the following call: “We have to accumulate, hate and keep record of their [Russian] crimes – the endless list of all those ‘sweep operations’, ‘identity checks’, ‘counter-terrorist operations’, gagging laws, unlawful searches and politically motivated criminal prosecutions. It would also be good to make lists of all those who carried out a particular ‘sweep operation’ in a particular village, who instituted criminal proceedings, on whose information and on which date. It is known from the historical perspective that those people are most of all afraid of personal responsibility, which they would not be able to shift on to their commanders who had given illegal orders.”
In 2004, Mr. Stomakhin participated to a meeting at Pushkin Square in Moscow and disseminated some issues of his newsletter.
Criminal proceedings were instituted against Mr. Stomakhin in December 2003. The Butyrskiy District Court of Moscow (District Court) found him guilty of “having publicly appealed to extremist activities through the mass media” (Article 280(2) of the Russian Criminal Code (CC)) and of having committed “actions aimed at inciting hatred and enmity as well as at humiliating the dignity of an individual or group of individuals on the grounds of ethnicity, origin, attitude towards religion and membership of a social group, through the mass media” (Article 282(1) CC). [para. 45] Relying on an expert linguistic report commissioned by the prosecution, the District Court found that the impugned texts had a clear extremist leaning and incited actions prohibited by the Federal Law on Suppression of Extremist Activities. Mr. Stomakhin was sentenced to five-years imprisonment and was given a three-year ban on practicing journalism.
In its judgment, the District Court held that Mr. Stomakhin had (i) called for extremist acts, such as a forcible overthrow of the constitutional order and the President of Russia; (ii) called for a breach of the territorial integrity of Russia; (iii) justified and glorified terrorist acts; (iv) called for violence against the Russian people and abased their dignity; and (v) incited religious discord by arguing that the Orthodox faith had been inferior and by insulting its followers. It also held that Mr. Stomakhin had used insulting language in respect of Russia as a State, the political regime in the country, and servicemen of Russia’s armed and security forces. [para. 46] The District Court also observed that in various issues of his newsletter the applicant had “intentionally appealed for records to be kept of such acts as ‘sweep operations’, ‘identity checks’, ‘counter-terrorist operations’, ‘unlawful searches and politically motivated criminal prosecutions’, which he [had] qualified as ‘crimes’ and the persons who [had] carried them out as ‘executioners in uniforms’ and ‘narks without uniforms’”. [para. 56]
On appeal, the Moscow City Court upheld Mr. Stomakhin’s conviction. It stated, in particular, that the newsletter had been a mass medium despite the low number of copies produced. Mr. Stomakhin was released on March 21, 2011 after he had served the prison sentence in full.
In 2007, while in prison, Mr. Stomakhin lodged an application with the European Court of Human Rights complaining that there had been a violation of his right to freedom of expression and his right to peaceful assembly. Mr. Stomakhin argued, in particular, that the domestic authorities had arbitrarily expanded the list of charges on which he had been convicted by including in their number actions that had not constituted a criminal offence, such as his participation in peaceful demonstrations and meetings. He also contended that the severity of his sentence had rendered the interference with his rights disproportionate. He pointed out that the circulation of his newsletter had only included copies which he had printed out himself and this number was negligible. Therefore, in his view, his actions had posed no danger to the public and should not have entailed such a severe punishment. [para. 74]
The European Court of Human Rights (Court) began by noting that Mr. Stomakhin’s complaint mainly concerned his criminal conviction for publication and dissemination of articles that the Russian authorities had found to have contained appeals to extremist activities and to have incited hatred and enmity on various grounds. Mr. Stomakhin’s participation in unauthorized meetings had been considered only as a factual background to the dissemination of information via his newsletter. Therefore, the Court would only examine his complaint as an alleged violation of his right to freedom of expression and not of his right to freedom of peaceful assembly.
The Court went on by stating that it was undisputed between the parties that Mr. Stomakhin’s conviction amounted to an interference with his right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (Convention). Then, it had to consider whether the interference was justified with reference to whether the interference was “prescribed by law”, was in pursuit of a legitimate aim and, was “necessary in a democratic society”.
The Court held that Mr. Stomakhin’s conviction was prescribed by law since it was based on Articles 280 and 282 of the Russian Criminal Code. The Court then held that Mr. Stomakhin’s conviction had pursued the legitimates aims of protecting the right of others (such as the Russian people, Orthodox believers, and Russia’s servicemen and law enforcement), and protecting national security, territorial integrity and preventing disorder and crime. The Court reiterated that concepts such as “national security” and “public safety” needed to be interpreted restrictively. However, it also noted that the difficult situation in the Chechen Republic at the time of the publications required particular vigilance on the part of the authorities.
The Court went on to consider whether the interference with Mr. Stomakhin’s right to freedom of expression was “necessary in a democratic society”. The Court reiterated that “necessity” implied the existence of a “pressing social need” and that the reasons given for the interference were “relevant and sufficient”. The Court also noted that the interference will only be “necessary in a democratic society” if it is “proportionate” to the legitimate aims pursued.
Turning to the facts of the present case, the Court noted that Mr. Stomakhin was prosecuted in criminal proceedings and punished for publishing articles which, as the domestic court found, had appealed to extremist activities and to violence, justified and glorified terrorism, and incited hatred and enmity. With this in mind, the Court reasoned that “as a matter of principle it may be considered necessary in democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify violence, hatred or intolerance provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued. It certainly remains open to the relevant State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks. Moreover, where such remarks incite violence against an individual, a public official or a sector of the population, the State enjoys a wider margin of appreciation when examining the need for an interference with freedom of expression”. [para. 92]
“Pressing social need”
As on whether the interference corresponded to a “pressing social need” and whether the reasons adduced were relevant and sufficient, the Court first noted that the impugned statements concerned the ongoing conflict in the Chechen Republic and were undoubtedly part of a debate on a matter of public concern. On the other hand, the Court acknowledged that the separatist tendencies in the Chechen Region had led to serious disturbances and had caused deadly terrorist attacks in other parts of Russia. The Court considered that “in situations of conflict and tension particular caution is called for on the part of the national authorities when consideration is being given to the publication of opinions which advocate recourse to violence against the State lest the media become a vehicle for the dissemination of hate speech and the promotion of violence. Yet, a fair balance should be struck between the individual’s fundamental right to freedom of expression and a democratic society’s legitimate right to protect itself against the activities of terrorist organizations.” [para. 96]
As for Mr. Stomakhin’s newsletter, the Court divided the impugned statements into three groups. The Court found that the first group of statements promoted, justified and glorified terrorism and violence with an “intention to romanticise and idealise the Chechen separatists’ cause” and brutalize and dehumanize the federal armed and security forces by portraying them as evil. [para. 99] The Court noted that some statements communicated to readers the general idea that recourse to violence and terrorism were necessary and justified measures of self-defense, while other statements approved of terrorist methods and violent acts. The Court also noted that some statements accused Russian servicemen and law enforcement of serious abuses and excesses. The Court noted that the latter accusations may not have been without foundation, particularly in the light of the Court’s case-law regarding human rights violations perpetrated during the Chechen conflict. However, the Court found that the impugned statements did not remain within the acceptable limits of freedom of expression because they stigmatized and dehumanized the other party in the conflict and, in doing so, stirred up a deep-seated and irrational hatred towards them and exposed them to a possible risk of physical violence. [para. 107] In that respect, the Court concluded that the domestic courts’ interference in relation to this first group of statements had been relevant and sufficient and met a “pressing social need”.
The second group of statements described Russian actions in Chechnya as “genocidal war”, invited readers to record certain acts committed by Russian forces, called for certain members of the armed forces and law enforcement to undergo psychiatric examination, and asked readers to abstain from presidential elections. The Court concluded that these statements, although virulent, did not go beyond the limits of acceptable criticism of the Russian Government and the federal armed and security forces as part of the machinery of the Russian State. The Court reiterated that “it is an itegral part of freedom of expression to seek historical truth, and that a debate on the causes of acts of particular gravity which may amount to war crimes or crimes against humanity should be able to take place freely.” [para. 113] As regards the statement calling for “an immediate compulsory psychiatric examination” of Russia’s servicemen and law enforcement officers, the Court found that the domestic courts had taken this out of context. [para. 115] The phrase formed part of an article criticizing a judicial decision that found an army officer not guilty of torturing and killing an eighteen-year-old because of temporary insanity. In this context, the statement was a scathing criticism of this decision and was an expression of concern that a mentally unstable person had been placed in command of a regiment. The Court could not find anything in this second group of statements that could be read as an incitement to or justification of violence, or an instigation of hatred or intolerance. The Court stressed the importance that domestic authorities adopt a cautious approach in determining the scope of “hate speech” crimes and strictly construe the relevant legal provisions where such charges were brought for mere criticism of the government, State institutions or their policies and practices. [para. 117] As the courts had failed to take account all the facts and relevant factors in relation to this second group of statements, the interference had not met “a pressing social need”.
The third group of statements, in essence, accused ethnic Russians of keeping slaves and linked Orthodox believers to controversial statements about the death of Christ. The Court did not depart from the conclusions of the domestic courts, which it found to be “relevant and sufficient” to justify the interference with Mr. Stomakhin’s right to freedom of expression. The Court reiterated that “attacking or casting in a negative light an entire ethnic or religious group by, for instance, linking the group as a whole with a serious crime, is in contradiction with the Convention’s underlying values, notably tolerance, social peace and non-discrimination.” [para. 121] The Court did, however, criticize the domestic courts for not sufficiently specifying how some issues of the newsletter were discriminatory or humiliating towards the Orthodox religion.
Proportionality of the sanction imposed
In assessing the proportionality of the interference, the Court considered the nature and severity of the penalties imposed. The Court noted that national authorities had to exercise particular caution when the measures were such as to dissuade persons from imparting information or ideas contesting the established order of things. In the case at hand, the Court observed that a number of statements glorified terrorism and advocated and promoted violence and hatred. As a result, there was a need for restriction of Mr. Stomakhin’s right to freedom of expression on grounds national security, territorial integrity, public safety and preventing disorder and crime. The Court reasoned that had Mr. Stomakhin’s sanction been appropriate it would have been compatible with the right to freedom of expression under Article 10 of the Convention. However, the Court noted that Mr. Stomakhin was sentenced to five years’ and banned from practicing journalism for three years. He served the sentence in full.
The Court decided to leave open the question whether a ban on the exercise of journalistic activities is, as such, compatible with Article 10 of the Convention. Instead, the Court acknowledged that “a deprivation of liberty coupled with a ban on practising journalism, particularly for such a long period, for speech, even if criminal, cannot but be regarded as an extremely harsh measure warranting very convincing considerations with due regard to the particular circumstances of the case. In the instant case, the domestic courts limited their justification of the sanctions in question with reference to the applicant’s ‘personality’ and the ‘social danger’ posed by his offence. Whilst those considerations may be ‘relevant’, they cannot be regarded as ‘sufficient’ to justify the exceptional severity of the penalty imposed on the applicant.” [para. 129] Moreover, the Court noted that Mr. Stomakhin had no criminal record and, therefore, the harsh sentence could not be justified on the basis of his intransigence.
The Court also assessed the proportionality of the sanction in light of the potential impact of the medium of expression concerned. In this case, the newsletter was printed in a self-published newsletter, the number of copies was very low, and its circulation was insignificant. With this in mind, the Court concluded that the potential impact of the impugned statements on the rights of others, national security, public safety or public order was significantly reduced. [para.131] The Court concluded that Mr. Stomakhin’s punishment was not proportionate to the legitimate aims pursued.
In light of the above, and particularly bearing in mind the authorities’ failure to demonstrate convincingly the “pressing social need” for an interference with Mr. Stomakhin’s freedom of expression in respect of a number of the impugned statements, as well as the severity of the penalty imposed on him, the Court found that the interference in question was not “necessary in a democratic society”. There had accordingly been a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the European Court of Human Rights (Court) considered that the Russian authorities had violated a journalist’s right to freedom of expression by convicting him to five years’ imprisonment and by banning him from exercising journalism for three years for articles that had allegedly incited hatred and violence. Although the impugned articles did contain statements that could be classified as “hate speech” or incitement to violence, the Court was careful to look at each statement in turn and determined whether the domestic courts were justified in classifying them as such. In doing so, it concluded that some harshly-worded criticism directed at the Russian government and armed forces fell within the acceptable limits of free speech and should not have formed the basis for the journalist’s conviction. The judgment of the Court also clarified that even in cases where speech may be justifiably criminalized, such as in cases of “hate speech” or incitement to violence, the national authorities do not have carte blanche to impose harsh prison sentences. Instead, they must meet the proportionality test under Article 10 of the Convention.
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