President Linos-Alexandre Sicilianos Application No.

4493/11
and The Registrar Atamanchuk v. Russia

European Court of Human Rights

Council of Europe
F-67075 Strasbourg cedex
France

24 February 2020

The Request for Referral to the Grand Chamber: 

• an unprecedented two-year preventive total ban on the exercise of freedom
of expression, 
• a historical removal of free speech protection in cases without incitement to
violence or any relation to World War II atrocities, 
• a historical extension of unprotected comments from cases about
individuals to cases about groups, and even unspecified groups, 
• an unprecedented removal of “negative stereotyping” and “ridicule”
against sectors of population or groups from the protected expression,
• a dangerous distinction between full-time and freelance journalists, media
founders and non-founders, journalists who are and are not at the same
time entrepreneurs, entrepreneurs and non-entrepreneurs
• a departure from established hate speech case-law
• a need for Grand Chamber to clarify “hate speech”





Dear President Sicilianos and members of the Panel:


The applicant, Mr. Vladimir Leonidovich Atamanchuk, is requesting a referral to the
Grand Chamber for the Third Section judgment of Atamanchuk v. Russia (Application
No. 4493/11), dated 11 February 2020.

The applicant is represented by Professor Jurij Toplak, a law professor at the University
of Maribor, Slovenia, and a Visiting Professor at Fordham University School of Law,
New York, and by Mr. Slavko Vesenjak, an attorney in Maribor, Slovenia.

In its judgment of 11 February 2020, the Chamber held, by six votes to one, that there
had been no violation of Articles 10 and 6 of the Convention. The reasoning of the six-
judge majority of the Third Section in several important ways departs from what were
thought of as well-established principles in the Court’s case-law. We ask the Grand
Chamber to clarify the limits of protection of free speech and hate speech. This is a
socially and politically sensitive, and highly discussed topic in Europe and globally.
1. For the first time ever, the Court authorised a complete stripping a person of his
constitutionally guaranteed freedom of expression for two years


In this judgment, for the first time, the Chamber found no violation in a ban on person’s
publishing and journalistic activity for two years. In other words, the Court upheld a
sanction of a person’s complete silencing for two years. It supported a penalty of a
person being stripped of his guaranteed freedom of expression. This decision is not in
line with the Grand Chamber case-law, and it is an enormous departure of the
established case-law, and a dangerous precedent.


In its case-law, the Grand Chamber had allowed a preventive ban on publishing to exist
as a sanction, but in all the cases it examined, the court had ruled that criminal
convictions accompanied by bans on publishing or journalistic activity violated freedom
of expression. In all of its case-law until 2020, the Court never found such a severe
sanction to be justified.


In its well-established case-law, the Grand Chamber described such prohibitions as
“particularly severe”; they “could not in any circumstances have been justified by the
mere risk of the applicants’ reoffending.” The Grand Chamber further held that
“prohibiting the applicants from working as journalists as a preventive measure” had
“contravened the principle that the press must be able to perform the role of public
watchdog in a democratic society.” (Grand Chamber judgment Cumpănă and Mazăre v.
Romania, 33348/96, 17 December 2004). 


In our case, the violation was not of such severity to justify a ban on publishing and
journalistic activity. The speech was milder than expressions previously examined by
the Court. The expression in our case did not meet the criteria set by the Grand
Chamber in the Cumpănă and Mazăre judgment. The sanction was disproportionate,
and so was the fine of 400.000 rubles (200.000 rubles, or 5000 Euros, for each of the
two article prints).


The Chamber did not follow the Grand Chamber’s Cumpănă and Mazăre judgment in
the part where the Grand Chamber warned that the existence of such sanctions results in
fear, which has a “chilling effect” on the exercise of journalistic freedom of expression,
and “works to the detriment of society as a whole.”



2. A judgment allowing publishing bans is dangerous and opens the door to for the
authorities to silence the opposition and journalists


Legislation in several Eastern European countries foresees the judicial banning of
publishing activity. But authorities have so far refrained from imposing such sanctions,
believing that they would contravene the Convention, because the benchmark set by the
Grand Chamber in judgment Cumpana and Mazare was very high. By not finding a
violation in Atamanchuk’s conviction, the Chamber has now opened the door for state
courts to impose such bans.


The judgment marks an end to the free press as we know it and allows authorities to
persecute and silence unpleasant journalists and publishers. This will inevitably have an
impact on journalistic behavior. As the Grand Chamber itself acknowledged in the
Cumpănă and Mazăre judgment, the existence of such sanctions results in fear, which
has a “chilling effect” on the exercise of journalistic freedom of expression, and “works
to the detriment of society as a whole.” 


The judgment puts brave journalists and opposition politicians in danger because
countries that foresee such sanctions in their laws are precisely the ones with a lot of
Convention violations. The judgment is thus dangerous not only for journalists and
opposition politicians but for a democratic society as a whole.



3. Our case involves no call to violence, or promotion or denying of Fascism,

Nazism, Holocaust


The Chamber departed from a well-established case-law. Under well-established case
law, expression towards groups enjoyed protection except for in cases when there was a
call to violence, or it was related to the atrocities of World War II. The Court found no
Article 10 violations in convictions of a radical Salafist leader who called for violence
and discrimination against non-Muslims (Belkacem v. Belgium   (dec.), 34367/14, 27
June 2017), a comedian humiliating Holocaust victims and implicitly denying
Holocaust (M’Bala M’Bala v. France   (dec.), 25239/13, ECHR 2015), a footballer
shouting a Fascist WWII Ustashe chant (Šimunić v. Croatia   (dec.), 20373/17, 22
January 2019), and Holocaust deniers (Williamson v. Germany   (dec.), 64496/17, 8
January 2019; Pastörs v. Germany, 55225/14, 3 October 2019). All these cases involved
a call to violence or were promoting or denying Fascist, Nazi or Holocaust atrocities or
humiliating its victims. Our case contains nothing of such. Our case did not even
include a call for discrimination.


It is a long-standing tenet that the protection of Article 10 extends not only to
expressions that are “favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the State or any sector of the
population.” Offend, shock or disturb! Any sector of the population!


The Chamber judgment allows the authorities to prosecute “hatred” or “xenophobic or
otherwise discriminatory speech” even when no call to violence is made. This is a
historic departure from the established case-law and an unprecedented shift in the
understanding of free speech. 



4. Criminalizing “ridicule” makes hundreds of TV movies and cartoons a crime



The Chamber departed from a well-established case-law by extending the prohibition of
“ridicule” from individual victims to groups, and even to unidentified groups. While the
insulting or “holding up to ridicule” of individuals had been considered in rare cases a
sufficient basis for prosecution in the past, the new judgment extends its applicability to
groups – ethnic and religious groups, for example. Under such standard, producers and
actors of a famous Hollywood comedies like Sacha Baron Cohen’s “Borat”, which
ridicules the people of Kazakhstan and people of USA, would be prosecuted, when the
Court makes it clear that “holding up to ridicule or slandering specific groups of the
population” may well be a crime. Hundreds of Hollywood movies involve ridiculing
Canadians, Italians, or British, and numerous Italian, Canadian or British TV shows
include ridiculing Americans.


In this regard, the Chamber referred to the Court’s previous case law, which dealt with
calls to violence or anti-Semitic attacks, but our case is much different. Our case
contained no direct or indirect call for violence, it was not anti-Semitic, it did not deal
with Fascism, Nazism, or Holocaust, and it did not even deal with any identifiable group
of people.



5. Criminalizing “negative stereotyping” makes numerous TV shows prosecutable

The Chamber refers to “negative stereotyping” in several places. It wrote that “negative
stereotyping of an ethnic group was capable, when reaching a certain level, of having an
impact on the group’s sense of identity and on its members’ feelings of self-worth and
self-confidence.” It further wrote that “There is nothing in the applicant’s submissions
… to supply any such basis for the sweeping remarks about residents of non-Russian
ethnic groups in Krasnodar Region and negative stereotyping.” It further wrote that “the
Court discerns no particular logic or substance in the applicant’s ensuing discourse
pertaining to the negative role of non-Russian groups…”.


By removing free speech protection from “negative stereotyping,” the Chamber went far
away from its established case-law. Never in history in the Western world “negative
stereotyping” was criminalized or unprotected. Similarly to the “ridiculing,” if this
judgment stays, hundreds of TV and radio shows, cartoons, movies, and theater plays
will become prohibited, and authors prosecuted. Every day numerous Hollywood
movies, Italian operas, German and British comedy shows involve ridiculing
Americans, Canadians, Italians, German, or British people.

Chamber’s suggestion that there needs to be some “logic or substance” in expression

about “negative role” of a nationality or a group is disturbing and it is a severe departure
of long-standing understandig of freedom of expression. For a century, one did not need
to have “logic or substance” when expressing opinion about national or other groups.



6. An unprecedented distinction between full-time and freelance journalists, media

founders and non-founders, journalists and entrepreneurs


The case involves a freelance journalist, local politician, founder of a newspaper, and
entrepreneur, who was fined and convicted to a two-year ban on any journalistic or
publishing activity.


In 2008, a local newspaper in Sochi published an article titled “Time to Vote: Yes!
No…” containing opposing views of six persons who explained why they would or
would not vote in the upcoming presidential elections. Under a “No…” part of the
article, the applicant expressed his dissatisfaction with a state of democracy in Russia,
widespread corruption, and oligarchs who control the country. In the second part of his
contribution, he expressed his frustration with “non-Russians” who “stare at you
greedily on every corner,” “have totally paralyzed our will” and “will start to burn,
slaughter, rape, rob and enslave, in line with their barbaric ideas, as it was in
Chechnya.” He then further evaluated the political situation, and concluded by, “That is
why I will not take part in the election…”.

During the trial, the applicant discussed his trial, and his article, in another newspaper,
which he founded himself. It contained a re-print of the original article.

Russian courts convicted him under the Criminal Code that bans “incitement of hatred
or enmity, as well as the humiliation of human dignity.” The applicant was fined
200,000 Russian roubles (about 5,000 Euros at the time) for each of the two prints of his
article, and banned from any journalistic or publishing activity for two years.


The Chamber emphasized that the accused journalist was mostly publishing in a
newspaper that he had founded “and only occasionally published articles in other local
newspapers, apparently, as a freelancer, apart from his main professional activity as an
entrepreneur.” This fact, the Court concluded, meant that the two-year ban would have
no “significant practical consequences” for him. 


The Chamber’s distinctions between full-time and freelance journalists, media founders
and non-founders, journalists who are at the same time entrepreneurs and those that are
not at the same time entrepreneurs, is disturbing and it is inconsistent with the existing
case law. The long-standing case law never made such distinctions. 


If this judgment stays, those who publish rarely are less protected than those who
publish frequently. The part-timers can, from now on, expect to feel the full force of the
law for their transgressions. And heaven help those who publish in media they founded
themselves or have the temerity to hold entrepreneurial aspirations. 

The Court’s decision that a two-year ban would have no “significant practical
consequences” for him because he was not a full time professional journalist is
unprecedented. Such a ban would have significant practical consequences on anyone
who shares his or her thaughts on Facebook or online forums, let alone a local politician
and part time journalist and publisher.



7. Departure from the case-law regarding the protection of political speech, and
about confrontation of opposing views


For decades, political speech has enjoyed the highest level of protection, but in this
case, the Court ignored the fact that Atamanchuk was a local and opposition politician.
The Court also did not consider that the article was not one-sided propaganda, but an
editorial that quoted six people with opposing views. This element - an editorial
confrontation of opposing views rather than one-sided propaganda - is crucial, and such
expression deserves all the protection.



8. A departure from a global understanding of freedom of expression: Hate Speech



Globally, there are two lines of thought about how to combat hate. The American
constitution and the courts firmly protect freedom of speech and allow the government
to punish hateful speech only when it directly causes imminent serious harm. European
courts, and many political scientists worldwide, believe that limits on expression are
justified more often than in the United States. 


Across Europe, denying the Holocaust, waiving a Nazi flag, and promoting Fascist ideas
have been criminal offenses for decades. In stark contrast, the US Supreme Court, in its
famous ruling, allowed a neo-Nazis march to take place (National Socialist Party of
America v. Village of Skokie, 432 U.S. 43 (1977)).


In her recent book,   Hate: Why We Should Resist It with Free Speech, Not
Censorship,   long-time American Civil Liberties Union (ACLU) president and law
professor Nadine Strossen argues that hate speech laws are at best ineffective and at
worst counterproductive. She maintains that the best way to resist hate and promote
equality is not censorship, but rather, vigorous “counterspeech” and activism.


The Chamber judgment departs from both the European and American understandings
of what free speech should be. The ECHR consistently found violations in convictions
of journalists and speakers, stressing its commitment to protecting information and
ideas “that offend, shock or disturb.” And explaining that “such are the demands of that
pluralism, tolerance and broadmindedness without which there is no democratic
society.” 


The “hate speech” is one of the central issues of today’s society. Scholars, lawyers,
politicians, and journalists continue to disagree about the best way to achieve a free,
tolerant, and respectful democratic society. Hate speech and its limits are highly
discussed and contraversial topic in European society. The Grand Chamber needs to
clarify what it understands under “hate speech” and which of it is protected and which
not.

9. Article 10 departure from the existing case-law explained by Judge Serghides

Judge Serghides in his dissent explained that the majority departed from the Court’s
case-law. He explained:

“the Court followed only in theory, and not in practice, its previous approach regarding the
interpretation and application of restrictions to freedom of expression. Although the Court stated
that it was applying that approach to the facts of the present case, in my view it did not do so.”
He further explained that the sanction was disproportionate and departing from the
Grand Chamber case-law:

“I contend that the restrictions imposed on the applicant were not necessary in a democratic
society; the interference complained of was based on reasons which in the light of the case as a
whole were not “relevant and sufficient” to justify it. Furthermore, in my opinion, the sentence
imposed on the applicant, prohibiting him from exercising any journalistic or publishing activities
for two years (in addition to the penalty of a fine, which was also high), was disproportionate in
the circumstances, thus violating the applicant’s rights under Article 10 and the principle that the
press must be able to perform the role of a public watchdog in a democratic society. This
principle was enunciated, inter alia, in Cumpănă and Mazăre v. Romania ([GC], no. 33348/96,
ECHR 2004-XI), where the Court considered “that by prohibiting the applicants from working as
journalists as a preventive measure of general scope, albeit subject to a time-limit, the domestic
courts contravened the principle that the press must be able to perform the role of a public
watchdog in a democratic society” (§ 119).”

10. Interpretation of Article 6 was inconsistent with the long-settled interpretation

Regarding Article 6 violation, the judgment departs from the Court’s established
interpretation, as Judge Serghides explains in his dissent:

“fact that the applicant was not afforded the opportunity to question witness F., undermined his
rights as a defendant and offended the overall fairness of the criminal proceedings in respect of
his rights under Article 6 §§ 1 and 3 (d) and the principle of effectiveness. The right to examine
witnesses under Article 6 § 3 (d) is a minimum right for everyone charged with a criminal
offence. Not permitting the applicant to cross-examine witness F. rendered the protection of his
right to a fair trial under Article 6 neither practical nor effective. Any other interpretation of
Article 6 would not reflect its purpose and the notion of fair trial. That the evidence of this
witness was not favourable to the applicant is clear from the judgment (see paragraphs 17, 26 and
81). The domestic courts provided no reasons for dismissing the applicant’s request to have
witness F. examined (see paragraphs 81 and 84 of the judgment), notwithstanding that witness
F.’s report had been admitted in evidence (ibid.), such that it was unavoidable that it had some
influence on the domestic judges’ thinking.”



11. Conclusion


For all these reasons, we strongly urge the Court to accept the applicant’s request for a
referral that would allow the Grand Chamber to reconsider these issues. There is no
question in our minds that the current case raises “a serious question affecting the
interpretation” of Articles 10 and 6 of the Convention as well as “a serious issue of
general importance” (Art. 43).



Yours sincerely,

Vladimir Leonidovich Atamanchuk Jurij Toplak Slavko Vesenjak