The Case of Sheikh Ali Salman [Bahrain]
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The Russian Constitutional Court upheld the legislative provision which criminalized incitement of hatred and/or enmity and imposed criminal sanctions. A blogger and media manager had filed a constitutional complaint after he had been found guilty under the provision and sentenced to a fine which was adjusted to 300 thousand rubles (around US$4.9 thousand at the time) on appeal. The blogger argued that the law restricted the rights of citizens, infringing the constitutional right to freedom of thought and speech and imposing a disproportionate sanction of up to six years of imprisonment. The Court stressed that the right to freedom of thought and speech is not absolute, and can be limited and, with reference to international law, held that the provision did not violate any constitutional provision.
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
On October 3, 2016, the Presnensky District Court of Moscow found Anton Nossik guilty of “inciting hatred and enmity” against a group of individuals based on their nationality under Part 1 of Article 282 of the Criminal Code of the Russian Federation. Nossik was a popular Russian-Israeli blogger, journalist, startup manager, and social activist, and well-known as a pioneer of Russian online news publications: he served as Editor of Vesti.ru, Lenta.ru, Gazeta.ru, and NEWSru.com. Nossik had actively criticized the Russian government for its legislative attempts to curb internet freedoms. He died from a heart attack in July 2017, at 51 years old.
According to the SOVA Center, the case against Nossik had been initiated in response to his blog post titled “Wipe Syria Off the Face of the Earth” and his discussion of that post on the air of the radio station Echo of Moscow. The SOVA Center noted that the blog post appeared on Nossik’s LiveJournal page on October 1, 2015, and in it he called for carpet bombing of Syria and destruction of civilian infrastructure on the country’s territory, praising the killing of civilians, including children. On that same day, Nossik confirmed his views on air on the radio station, Echo of Moscow, where he stated he supported “the killing of women, children, and the elderly during the military operation in Syria, as they [were] ultimately a danger to Israel,” the SOVA Center reported. The Presnensky District Court of Moscow sentenced Nossik to a fine of 500 thousand rubles (around $7.9 thousand at the time). Nossik appealed the Court’s decision. According to TASS, on December 15, 2016, the Moscow City Court lowered the fine amount to 300 thousand rubles (around $4.9 thousand). The Court of Cassation refused to consider the case further.
The SOVA Center reports that on May 15, 2017, Nossik filed a complaint to the Constitutional Court of the Russian Federation regarding Article 282 of the Criminal Code, under which he had been fined for “inciting hatred and enmity.” Nossik’s lawyer, Sergei Badamshin, stated that the complaint had been filed jointly with Open Russia – a political organization founded by Mikhail Khodorkovsky, a Russian oligarch in exile. Part 1 of Article 282 of the Criminal Code titled “Incitement of Hatred or Enmity, as well as Humiliation of One’s Dignity” addresses acts of inciting hatred and/or enmity and humiliating dignity of an individual or a group of individuals based on sex, race, nationality, language, origin, religion and/or membership in a social group, if those acts take place publicly or via “mass media or information and telecommunication networks, including the Internet.” In the article’s edition before a 2018 amendment, which decriminalized it partially, the law imposed punishment, including for the offenses in this case. Sanctions under Part 1 range from a fine (up to 500 thousand rubles) to compulsory labor (up to four years) to imprisonment (up to five years.) Part 2 adds the following criteria: acts a) with the use of violence or with the threat of its use, b) by a person using his official position, and c) by an organized group, and imposes punishment ranging from a fine (up to 600 thousand rubles) to compulsory labor (up to five years) to imprisonment (up to six years.)
The main issue before the Court was whether the Criminal Code’s provisions on incitement of hatred and/or enmity, which imposed criminal punishment, infringed the Constitution of the Russian Federation.
Nossik argued that the law “disproportionately restricted the rights of citizens” as it imposed criminal liability upon the expression of one’s opinion [p. 1]. Nossik submitted that the terms used in the law, such as “social group” and “motives of hatred or enmity,” were unclear, and that Article 282 failed to set the necessary criteria to differentiate the crime it addressed from the contents of Article 280 of the Criminal Code (“Public Calls for Extremist Activities”). He also argued that the law allowed for imprisonment as a punishment “for actions that did not cause harm to human health or property and did not create a threat to the safety of the public and the environment.” Nossik submitted that the law violated various sections of the Constitution: Parts 1, 3, and 5 of Article 29 (on the guarantee of everyone’s freedom of thought and speech, on the freedom from being forced to express one’s views or reject them, and on the prohibition of censorship); Part 1 of Article 44 (on the guarantee of everyone’s freedom of “literary, artistic, scientific, technical and other types of creative activity, and teaching”); and Article 55 (on the interpretation of the Constitution in non-rejection and non-derogation of other universal human rights and freedoms, on the prohibition of laws that cancel or derogate human rights and freedoms, and the possible limitation of rights and freedoms by the federal law “only to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for […] the security of the state”).
The Court cited the constitution, emphasizing that the Russian Federation as a democratic law-bound state (Part 1 of Article 1) was obliged to guarantee “recognition, observance, and protection of the rights and freedoms of man and citizen” (Article 2), as well as to protect other constitutional values, such as sovereignty and territorial integrity (Part 1 of Article 3, Article 4, and Part 3 of Article 5), and the integrity of “the status of a person” on all Russia’s territory, the integrity of the state power system and economic space (Part 1 of Article 8 and Parts 1 and 2 of Article 15) [p. 2]. The Court also stressed that the exercise of one’s rights and freedoms could not violate the rights and freedoms of others (Part 3 of Article 17). The Court added that the Constitution allowed for the restriction of one’s rights and freedoms to the extent that it appeared necessary “for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for […] the security of the state” (Part 3 of Article 55) [p. 2] .
The Court referred to the international law provisions in Articles 18, 19, and Part 2 of Article 29 of the Universal Declaration of Human Rights, Articles 18 and 19 of the International Covenant on Civil and Political Rights, and Article 9 and 10 of the European Convention on Human Rights. The Court stressed that everyone’s right to freedom of thought, conscience, and religion, everyone’s right to the freedom of opinion and expression, including “the freedom to seek, receive and distribute all kinds of information and ideas by any means”, could be restricted [p. 2]. The Court stated that such restriction could take place in the interests of national security, territorial integrity or public order, for the prevention of disorder or crime, for the protection of health, morals or the rights of others” [p. 2].
Citing its earlier ruling N137-O-O dated February 19, 2009, the Court emphasized that the Constitution necessitated “any adequate measures to protect it” along with the government’s obligation to provide for public security and crime prevention by legal means [p. 2]. It also referred to three other rulings (N1873-O dated September 25, 2014; N2450-O dated October 27, 2015; and N1927-O dated September 29, 2016), and stressed that when an individual was exercising their constitutional rights and freedoms – including the freedoms of speech and thought – in simultaneous violation of rights and freedoms of others, and while such violation was of “a socially dangerous and unlawful nature”, then the perpetrator could be legally liable with a possibility of criminal prosecution for the protection of public interest [p. 3]. Citing its ruling N665-O dated March 28, 2017, the Court stated that, besides the form of expression, both the way of information dissemination and its content bore significance.
Addressing Article 282 of the Criminal Code and referencing its ruling N564-O-O dated April 22, 2010, the Court held that the law contributed to “the mechanism for protecting public relations that guaranteed recognition and respect for the dignity of the individual, regardless of any physical or social characteristics” [p. 3]. The Court also cited Part 37 of UN Resolution 70/291 dated July 1, 2016 titled “the United Nations Global Counter-Terrorism Strategy Review,” stressing that “tolerance, pluralism, respect for diversity, dialogue among civilizations and the enhancement of interfaith and intercultural understanding and respect among peoples, including at the national, regional and global levels, while avoiding the escalation of hatred” played highly important roles in “combating terrorism and in countering violent extremism” [p. 3].
Referencing its earlier resolutions (N8-П dated May 27, 2008, N15-П dated July 13, 2010, and N18-П dated June 17, 2014), the Court reiterated the importance of clear definitions concerning any crime and subsequent punishment to be present in the text of the given law and, if necessary, supported by courts’ interpretations. However, the Court also stressed that such requirements did not entail the absence of “evaluative or generally accepted concepts (categories)” in criminal law, as those served for the effective application of criminal law to “an unlimited number of specific legal situations” [p. 3]. In this context, the Court referenced its rulings N441-O dated December 4, 2003; N260-O-O dated April 15, 2008; N484-О-П dated April 2, 2009; N1561-O-O dated November 25, 2010; N572-O-O dated April 21, 2011; N323-O dated March 5, 2013; and N1142-O dated May 26, 2016.
Referencing Resolution N11 of the Supreme Court’s Plenum dated June 28, 2011, and titled “On Judicial Practice in Criminal Cases on Crimes of an Extremist Orientation,” the Court defined acts of inciting hatred or enmity as, inter alia, “statements substantiating or asserting the need for genocide, mass repressions, deportations, other illegal actions, including the use of violence, against representatives of any nation, race, adherents to a particular religion” [p. 4]. Following Paragraph 2 of Part 7 of the Plenum’s Resolution, the Court also stressed that criticism in itself – be it with regards to political organizations, or ideological and religious beliefs, or national and religious customs and practices – “should not be regarded as an act aimed at inciting hatred or enmity” [p. 4].
Citing its ruling N665-O dated March 28, 2017, the Court emphasized that the type of action addressed by the calls in question was to be interpreted and assessed under the factual circumstances of a particular case. Referencing the above-mentioned resolution of the Supreme Court’s Plenum (Paragraph 1 of Part 5), the Court differentiated Article 280 from Article 282 of the Criminal Code, stating that the former article brought liability for “public calls for extremist activities” only, while the latter addressed “public dissemination of information, which substantiated the need to commit unlawful acts against individuals on the basis of race, nationality, religious affiliation, etc.” or information which would justify such activity [p. 4].
The Court found that Article 282 of the Criminal Code did not lack clarity, and stated that the law did not obstruct one’s understanding of what constituted an illegal action and the liability such an action could result in. The Court concluded the law did not obstruct the uniformity of its understanding and application practice by law enforcement agencies.
Addressing Nossik’s complaint with regard to the type of sanctions imposed under the law, the Court referenced its Resolution N32-П dated December 11, 2014, and stressed that the matter was “the prerogative of the federal legislator” [p. 4]. The Court also noted the simultaneous necessity to ensure the principle of proportionality and the balance between one’s fundamental rights and the general interest to protect “the individual, society and the state from criminal encroachments” [p. 4]. Citing its earlier rulings N998-O dated June 17, 2013, N1969-O dated September 29, 2015, N211-O dated January 28, 2016, N435-O dated February 25, 2016, and N353-O dated February 28, 2017, the Court thus concluded that the federal legislator determined the extent of criminal punishment, taking into account both the constitutional guarantees of one’s rights and the public danger of the criminal act in question. The Court stressed that the sanction in the form of imprisonment under Article 282 of the Criminal Code had not been applied to Nossik.
Accordingly, the Court held that the contested law provisions on incitement of hatred or enmity could not be considered “as violating the constitutional rights of the claimant” and refused to consider Nossik’s complaint [p. 5].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision contracts expression in Russia, as it upholds the law that imposes criminal liability for hate speech acts with a punishment of up to six-year imprisonment. Even though Nossik’s statements could have been interpreted as expressions of hatred toward the Syrian people and as calls for war acts against Syria, Article 282 of the Criminal Code allows for criminal sanctions and punitive measures that are disproportionately heavier than the harm brought by one’s expression. According to the ECHR.ru, the European Court of Human Rights registered Nossik’s complaint regarding the guilty verdict of the Moscow City Court.
The Constitutional Court followed with three nearly identical rulings regarding the constitutionality of Article. 282 of the Criminal Code, in which the legitimacy of the law was upheld in all three. On July 18, 2017, the Court issued its decision in the case of Yevgeniy Kort, who had earlier been sentenced to a year in a colony settlement with a subsequent reduction of the measure to a fine of 200 thousand rubles (about US$3.4 thousand at the time) on appeal. Kort’s charges came in response to, as the SOVA Center describes it, “a racist collage” posted by him on the social network VKontakte, and after multiple appeals, in February 2019, the Court terminated Kort’s case and ordered the Ministry of Finance to pay him 200 thousand rubles in compensation. On the same day, July 18, 2017, the Court issued a ruling in the case of Aleksandr Potkin, who, according to Vedomosti, had earlier been sentenced to seven and a half years in prison on several counts with a subsequent reduction of the sentence to three and a half years in prison for “extremism” (in response to his project “Evil Kazakh”) and “extremist activity.” On October 26, 2017, the Court rejected the complaint of Dmitriy Novikov, who had earlier been sentenced to compulsory labor “for committing actions aimed at humiliating the dignity of a person and a group of persons on the basis of race and nationality,” which Novikov claimed to have been a public recitation of a poem; he was exempted from the punishment due to the expiration of the statute of limitations.
Article 282 of the Criminal Code was partially decriminalized under Federal Law N519-FZ dated December 27, 2018, and Article 20.3.1 of the Administrative Code titled “Incitement of Hatred or Enmity, as well as Humiliation of Human Dignity” was put into effect by Federal Law N521-FZ on December 27, 2018. Under this framework first-time offenders are brought to administrative liability if the action in question does not represent “a criminally punishable act.” The punishment for individuals under Article 20.3.1 of the Administrative Code ranges from a fine (up to 20 thousand roubles) to compulsory labor (up to 100 hours) to administrative arrest (up to 15 days); for legal entities – a fine (up to 500 thousand roubles). Should an an individual commits similar offense within a year, they are liable under Article 282 of the Criminal Code.
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