FIRST SECTION Application no. 22646/07 Stanislav Mikhaylovich DMITRIYEVSKIY and others against Russia lodged on 23 May 2007 STATEMENT OF FACTS The applicants are: 1. Mr Stanislav Mikhaylovich Dmitriyevskiy, born in 1966; 2. Ms Chelysheva Oksana Anatolyevna, born in 1968; 3. Ms Banina Tatyana Nikolayevna, born in 1978, and 4. Mezhregionalnaya obshchestvennaya organizatsiya Obshchestvo Rossiysko-Chechenskoy Druzhby (the Inter-Regional Non-Governmental Organisation Russian-Chechen Friendship Society ). The first three applicants live in Nizhniy Novgorod. The fourth applicant, prior to the events described below, was located in Nizhniy Novgorod. The applicants are represented before the Court by Ms K. Moskalenko and Ms A. Stavitskaya, lawyers from the Centre of Assistance to International Protection in Moscow. A. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. At the material time the first three applicants were members of the fourth applicant. In particular, the first applicant was the fourth applicant s executive director and the second applicant was its deputy executive director. The third applicant was an editor of the Russian version of the news bulletin of the fourth applicant s information centre. The fourth applicant was a non-governmental organisation registered by the Main Department of the Russian Ministry of Justice in Nizhniy Novgorod on 21 June 2000. The fourth applicant s main purposes included overcoming hostility and distrust between the people of the Chechen
2 DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS Republic and Russia; monitoring human-rights violations in the Chechen Republic and other parts of the North Caucasus; protecting the rights of civilians, refugees and forced migrants; making public the facts of military crimes and crimes against humanity committed by any of the parties to the conflict in the Chechen Republic; legally representing victims of those crimes in court, and so on. 1. Background events In 2004 the first applicant, who was also the chief editor of a regional monthly newspaper Pravo-Zashchita (Protection of Rights), reprinted two documents from the Chechenpress Internet site. The documents were entitled respectively Address by Akhmed Zakayev, Vice Prime Minister of the Government of the Chechen Republic of Ichkeria, to the Russian People («Обращение вице-премьера правительства Чеченской Республики Ичкерия Ахмеда Закаева к российскому народу»), and Address by Maskhadov, President of the Chechen Republic of Ichkeria, to the European Parliament («Обращение Президента Чеченской Республики Ичкерия Масхадова к Европарламенту»). The authors blamed the Russian authorities for the conflict in the Chechen Republic and criticised them harshly. On 11 January 2005 the prosecutor s office of the Nizhniy Novgorod Region ( the regional prosecutor s office ) instituted criminal proceedings under Article 280 (2) of the Russian Criminal Code (public calls to extremist activity through the mass-media) on the basis of a report by their office that the two articles contained public calls to extremist action, and notably to overthrow the State regime and change the fundamental aspects of Russia s constitutional system by force. On 18 February 2005 reports following an expert examination of the language in the articles stated that they contained no calls to extremist action but rather statements aimed at inciting racial, national and social hostility associated with violence, and statements aimed at advocating exceptionality and superiority of the Chechens because of their ethnic origin. The authorities then decided to conduct a further investigation under Article 282 (2) of the Russian Criminal Code (incitement to hatred or hostility and humiliation of human dignity). By a judgment of 3 February 2006 the Sovetskiy District Court of Nizhniy Novgorod, on the basis of the reports of 18 February 2005, convicted the first applicant of a criminal offence punishable under Article 282 (2) of the Russian Criminal Code, namely of actions aimed at inciting hostility and humiliating the dignity of a group of persons on the grounds of race, ethnic origin and membership of a social group, in the mass-media and using his official position. The court excluded from the charges any reference to statements aimed at advocating exceptionality and superiority of the Chechens because of their ethnic origin. According to the court this element fell outside the definition of the offence punishable under Article 282 of the Russian Criminal Code. The first applicant was sentenced to two years imprisonment, suspended, and to four years probation. On 11 April 2006 the Nizhniy Novgorod Regional Court ( the Regional Court ) upheld the first-instance judgment on appeal.
DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 3 2. Dissolution of the fourth applicant (a) Prosecutor s request On 9 October 2006 the regional prosecutor lodged a claim against the first and fourth applicants with the Regional Court seeking to have the fourth applicant dissolved. He stated that the fourth applicant s activity involved gross breaches of the domestic law, and in particular that it had extremist leanings. The prosecutor pointed in particular to the first applicant s conviction under Article 282 (2) of the Russian Criminal Code for actions via the mass-media and using his official position aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, nationality and membership of a certain social group, in connection with the above-mentioned articles in the Pravo-Zashchita newspaper. The prosecutor argued, with reference to the definition of extremist activity (extremism) in section 1 of the Suppression of Extremism Act, that the first applicant s criminal offence was an extremist one. Therefore, according to section 15 of the Suppression of Extremism Act, within five days after the first applicant s conviction became final the fourth applicant should have publicly announced its disagreement with the actions of which the first applicant was convicted, but had failed to do so to date. This meant, in the prosecutor s opinion, that the fourth applicant itself had participated in the extremist activity, in gross breach of Article 29 of the Russian Constitution and the federal legislation on the suppression of extremism. Moreover, by virtue of section 19 of the Non-Governmental Organisations Act, the first applicant should have been banned from holding any office or being a member of any non-governmental organisation, as a person convicted of a criminal offence of an extremist nature. However, the fourth applicant had breached that provision as the first applicant had remained its executive director up to that time. The prosecutor went on to state that the fourth applicant was committing gross and systematic breaches of the tax legislation. In particular, a local tax inspection had fined it on several occasions for failure fully to pay a profit tax and to submit tax returns on time. The prosecutor also submitted that a check had established that the fourth applicant was not located at the address indicated in its charter and on its State registration certificate. The fourth applicant had not informed a competent authority about its change of address within the three-day period stipulated in section 29 of the Non-Governmental Organisations Act, and had therefore violated that provision. Lastly, the prosecutor argued that the fourth applicant was also in breach of the legislation on non-governmental organisations because although it was an inter-regional organisation, in its title it used words and expressions derived from the words Russia and Russian Federation, whereas under section 14 of the Non-Governmental Organisations Act only nationwide non-governmental organisations could use such derivatives.
4 DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS (b) Proceedings before the first-instance court At the hearing before the Regional Court the first applicant disputed the regional prosecutor s arguments. He contended, in particular, that the prosecutor s reference to the Suppression of Extremism Act in connection with his conviction was unfounded, as he, personally, had not made any extremist statements but had simply published in the Pravo-Zashchita newspaper statements made by third parties. As regards the regional prosecutor s argument that the fourth applicant had breached section 19 of the Non-Governmental Organisations Act because the first applicant had remained in post as the fourth applicant s executive director, the first applicant stated that the prosecutor was attempting to have this section applied retrospectively. The first applicant explained that his conviction had become final on 11 April 2006, whereas the aforementioned legal provision had not become operative in its amended version incorporating the wording referred to by the prosecutor until 18 April 2006. The first applicant further stated that the fourth applicant disagreed with the imposition of tax claimed by the tax authorities and had challenged it before a commercial court, where proceedings were pending at that time. The first applicant conceded that the fourth applicant had not complied with the requirements of section 29 of the Non-Governmental Organisations Act in so far as its address was concerned, but in the first applicant s opinion that was not a serious omission, as no damage had been caused to anyone as a result. As regards the presence of derivatives of the words Russia and Russian Federation in the fourth applicant s title, the first applicant argued that it was the State body that had ignored the presence of such derivatives in the fourth applicant s title when registering it that should be held responsible for that alleged breach. (c) Judgment of 13 October 2006 In a judgment of 13 October 2006 the Regional Court granted the regional prosecutor s request and ordered the fourth applicant s dissolution. It largely relied on the prosecutor s arguments. In particular, the court noted that the first applicant had been convicted under Article 282 (2) of the Russian Criminal Code, as it had been established that, acting deliberately and using his official position as chief editor, he had published two articles which, according to expert reports, had contained statements aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, ethnic origin and membership of a certain social group. It then had regard to the definition of extremism in section one of the Suppression of Extremism Act and concluded that the offence of which the first applicant had been convicted fell within that definition. Therefore, by virtue of section 15 of the Suppression of Extremism Act, the fourth applicant should have publicly declared its disagreement with the actions of which the first applicant had been convicted within five days of the conviction becoming final. However, the fourth applicant had made no such statement within the prescribed timelimit.
DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 5 Also, by virtue of section 19 of the Non-Governmental Organisations Act, the first applicant should have been banned from holding any office or being a member of any non-governmental organisation. The fourth applicant had breached that provision as the first applicant had remained its executive director in spite of his conviction. The Regional Court rejected the first applicant s argument concerning the retrospective application of section 19 of the Non-Governmental Organisations Act. It pointed out in this regard that, in so far as the aforementioned provision prohibited a person whose actions were found by a final court decision to comprise elements of extremist activity from being a founder or member of or participating in a non-governmental organisation, it had been operative since 10 January 2006, and therefore it had not been applied retrospectively, given that the first applicant s conviction had become final on 10 April 2006. The Regional Court further agreed with the prosecutor that the fourth applicant had breached tax legislation on several occasions. In this respect, the court referred to decisions of the tax authorities by which the fourth applicant had been fined for its failure fully to pay a profit tax for 2002 and 2004 and to submit tax returns for 2004 in good time. The court did not address the first applicant s argument that the fourth applicant had challenged the tax claims and that the proceedings were pending before a commercial court. It then agreed with the prosecutor that the fourth applicant had infringed section 29 of the Non-Governmental Organisations Act as it had failed to inform the competent authorities of its change of address and of its actual location. The court did not accept the first applicant s argument that this was not a serious violation. It stated that the aforementioned provision clearly listed the obligations of a non-governmental organisation, which comprised providing regular information on its activities, including its actual address; however, the fourth applicant had not complied with that obligation. The court also confirmed that the fourth applicant had infringed domestic law by using in its title, with no authorisation by a competent authority, the word Russian, a derivative of Russia, whereas under the relevant law only nationwide organisations could use such words in their titles without prior authorisation. The court considered this to be a gross violation. It also had regard to the fact that the fourth applicant continued unlawfully to use the aforementioned word in its title. As regards the first applicant s argument that it was the State registration authority that should be held responsible in that connection, as it had not informed the fourth applicant of the problem at the time of its registration, the Regional Court stated that this argument was not based on law and therefore could not be taken into account. The court also pointed out that in its warnings of 12 September 2005 and 21 August 2006 the State registration authority had drawn the fourth applicant s attention to this defect and set time-limits for its elimination. The Regional Court thus concluded that the fourth applicant had repeatedly and grossly breached federal legislation and other legal instruments in force, and therefore that, according to Article 61 (2) of the Russian Civil Code and section 44 of the Non-Governmental Organisations
6 DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS Act, there were grounds for its liquidation. The court ordered the first applicant to proceed with the fourth applicant s liquidation. (d) Appeal proceedings The first applicant appealed against the judgment of 13 October 2006. He argued that the Regional Court had ordered the fourth applicant s dissolution mainly because of his conviction in connection with the publication of the two articles in the Pravo-Zashchita newspaper. According to him the Regional Court s findings that the fourth applicant had breached section 15 of the Suppression of Extremism Act because it had not publicly declared its disagreement with the actions of which the first applicant had been convicted, and section 19 of the Non-Governmental Organisations Act because he had not resigned from his post as the fourth applicant s executive director after his conviction, had been based on incorrect interpretation of section 1 of the Suppression of Extremism Act. He pointed out that this latter provision defined as extremist activity, inter alia, actions aimed at inciting racial, ethnic, religious or social hostility associated with violence or calls to violence. He further stated that it was true that he had been convicted for actions aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, nationality and membership of a social group; however, the domestic courts had never found that those actions had been associated with violence or calls to violence. Moreover, the expert reports on the basis of which he had been convicted had clearly stated that in the articles in question there were no calls to extremism. The first applicant thus argued that the offence of which he had been convicted could not be regarded as an extremist one, as it did not fall under the notion of extremist activity as defined in section 1 of the Suppression of Extremism Act, and therefore the fourth applicant could not be said to have breached the aforementioned legal provisions. The first applicant also reiterated his arguments concerning the retrospective application of section 19 of the Non-Governmental Organisations Act. He further contended that the fact of the fourth applicant s breach of tax legislation could not be regarded as established given that the proceedings in which the fourth applicant had challenged the tax authorities claims were still pending. The first applicant also argued that the Regional Court had not been justified in holding that the fourth applicant had breached the law because of its failure to notify the competent authorities of its change of address. He referred to section 42 of the Non-Governmental Organisations Act, which allowed a non-governmental organisation a certain period to rectify a shortcoming and provided that if such an organisation failed to remedy the defect its activity could be suspended for a period of up to six months. In its warning of 26 September 2006 the competent authority had instructed the fourth applicant to rectify certain defects before 25 October 2006, and in particular to provide information about the fourth applicant s address. However, on 13 October 2006, that is twelve days before the expiry of that time-limit, the Regional Court had ordered the fourth applicant s dissolution, with reference to its failure to comply with the relevant provisions of domestic law. The first applicant also insisted that the
DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 7 shortcoming in question had actually already been rectified and he had informed the competent authority accordingly in a letter of 24 October 2006. Lastly, the first applicant argued in his appeal submissions that the fourth applicant s dissolution had violated Articles 10 and 11 of the European Convention on Human Rights. (e) Decision of 23 January 2007 In a decision of 23 January 2007 the Supreme Court of Russia ( the Supreme Court ) upheld the judgment of 13 October 2006 on appeal. It agreed with the first-instance court that the fourth applicant had repeatedly and grossly violated the federal legislation. In particular, the Supreme Court confirmed that the fourth applicant had breached the tax legislation. It rejected the first applicant s argument that the breach could not be regarded as established as proceedings were pending before a commercial court at that time. The Supreme Court noted that on the date of the examination of the first applicant s appeal against the judgment of 13 October 2006 the decision of the tax authorities holding the fourth applicant liable in connection with its failure to pay profit tax had not been set aside, and could therefore be regarded as evidence confirming the fourth applicant s failure to comply with the tax legislation. The Supreme Court further agreed with the Regional Court that the fourth applicant had infringed federal legislation in so far as it had failed to provide timely information about its actual address. The court stated that the first applicant s reference to the time-limit fixed in a warning from the competent authority to rectify the defect imputed to the fourth applicant and his argument that that time-limit had not expired on the date when the firstinstance judgment ordering the fourth applicant s dissolution had been given, did not disprove the existence of the violation established by the Regional Court as regards the fourth applicant s activity. Moreover, the first applicant had not enclosed any documents in his appeal submissions indicating that this defect had effectively been remedied. The appellate court also upheld the Regional Court s finding that the fourth applicant was in gross breach of domestic law because it had the word Russian in its title, and that this breach had not been remedied to date despite repeated warnings by the competent authority. The Supreme Court further confirmed that the fourth applicant had breached section 19 of the Non-Governmental Organisations Act, as the first applicant had retained his post as the fourth applicant s executive director despite having been convicted of a criminal offence of an extremist nature, and also section 15 of the Suppression of Extremism Act because the fourth applicant had not publicly distanced itself from the actions of which the first applicant had been convicted. The Supreme Court rejected the first applicant s argument that the offence of which he had been convicted could not be regarded as an extremist one given that he had never been convicted of any actions associated with violence or calls to violence, a criterion necessary for an offence to fall within the scope of the definition of extremism under section 1 of the Suppression of Extremism Act. In this connection the Supreme Court stated:
8 DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS The [regional] court concluded that the criminal offence committed by [the first applicant] corresponds to extremist activity under section 1 of the Suppressions of Extremism Act, that is, activity aimed at inciting racial, ethnic or religious hostility, as well as social hostility, associated with violence or calls to violence. It is true that, as is clear from the text of the judgment [convicting him, the first applicant s] actions were not alleged to have been associated with violence or calls to violence. However, the wording of the corpus delicti of a criminal offence need not necessarily coincide with the wording of the notion of extremist activity as defined in the Suppression of Extremism Act. Section 15 (3) of the same Act establishes that if the head or a member of the governing body of a non-governmental, religious or any other organisation makes a public statement calling for extremist acts, without indicating that it is his personal opinion, and equally if such a person has been convicted of a criminal offence of an extremist nature by a final court decision, the relevant nongovernmental or religious organisation shall, within five days from the date when such statement was made, publicly declare its disagreement with the said statement or acts. If the relevant non-governmental, religious or any other organisation does not make such a public declaration, this can be regarded as evidence of the presence of elements of extremism in that organisation s activity. Since, as was rightly pointed out by the [regional] court, [the first applicant] had committed a criminal offence of an extremist nature, [and the fourth applicant] had not expressed its disagreement with his actions, the [regional] court was right to find elements of extremism in [the fourth applicant s] actions. Besides, [the first applicant s] actions could be qualified as extremism also in the light of [other elements] of the definition of extremist activities in section 1 of the aforementioned Act, such as humiliation of dignity on the grounds of ethnic origin; propaganda of exceptionality, superiority or inferiority of citizens because of their attitude towards religion, social position, race, ethnic origin, religion or language; or the creation and/or dissemination of printed, audio, audio-visual and other materials (works) designed for public use and containing at least one of the elements listed in this section. In such circumstances, the [regional court s] conclusion that the actions committed by [the first applicant] constituted extremist activities was correct. The Supreme Court also rejected the first applicant s argument concerning the retrospective application of section 19 of the Non- Governmental Organisations Act, stating that this provision had been applied by the first-instance court in respect of the fourth applicant rather than the first applicant, and that on the relevant date the provision in question had already been operative. The Supreme Court thus concluded that the Regional Court had been justified in ordering the fourth applicant s dissolution. B. Relevant domestic law and practice 1. Russian Civil Code Article 61 (2) of the Russian Civil Code provides that a legal entity may be liquidated by a court decision, inter alia, if it has been established that gross breaches of law were committed during the entity s foundation and if those breaches are of an irremediable nature; or if the entity carries out its activities without a special authorisation (licence), or activities prohibited by law, or in breach of the Russian Constitution, or together with other repeated or gross breaches of the law or other legal instruments.
DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 9 2. Suppression of Extremism Act The Federal Law of 25 July 2002 No. 114-FZ On Suppression of Extremist Activities (Федеральный закон 25 июля 2002 г. 114-ФЗ «О противодействии экстремистской деятельности», the Suppression of Extremism Act ), in its relevant parts, states as follows: Section 1: Basic concepts For purposes of the present Federal Law the following basic concepts shall apply: 1. Extremist activity (extremism) is: (a) activity of non-governmental, religious or other organisations, the media, editorial boards or individuals, consisting in planning, directing, preparing and committing acts aimed at: inciting racial, ethnic, religious or social hostility associated with violence or calls to violence; humiliation of dignity on the grounds of ethnic origin; propaganda of exceptionality, superiority or inferiority of citizens because of their attitude towards religion, social position, race, ethnic origin, religion or language; creation and/or dissemination of printed, audio, audio-visual and other materials (works) designed for public use and containing at least one of the elements listed in this section; 2. An extremist organisation is a non-governmental, religious or other organisation which has been liquidated or banned by a final court decision on the grounds provided for in the present Federal Law, as a result of its being involved in extremist activities,. Section 15: Responsibility of citizens of the Russian Federation, foreign citizens and stateless persons for extremist activities If the head or a member of the governing body of a non-governmental, religious or other organisation makes a public statement calling for extremist acts, without indicating that it is his personal opinion, and equally if such a person has been convicted, by a final court decision, of a criminal offence of an extremist nature, the relevant non-governmental, religious or other organisation shall, within five days from the date when such statement was made, publicly declare its disagreement with the said statement or acts. If the relevant non-governmental, religious or other organisation does not make such a public declaration, this can be regarded as evidence of the presence of elements of extremism in that organisation s activity. 3. Non-Governmental Organisations Act The Federal Law of 19 May 1995 No. 82-FZ On Non-Governmental Organisations (Федеральный закон от 19 мая 1995 г. 82-ФЗ «Об общественных объединениях», the Non-Governmental Organisations Act ), in its relevant parts, provides as follows:
10DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS Section 14: Territorial sphere of activities of Russian non-governmental organisations In the Russian Federation, nationwide, inter-regional, regional and local nongovernmental organisations may be founded and exercise their activities. A nationwide non-governmental organisation is defined as an organisation which exercises its activity within the territories of more than half of the regions of the Russian Federation An inter-regional non-governmental organisation is defined as an organisation which exercises its activity within the territories of fewer than half of the regions of the Russian Federation. Nationwide non-governmental organisations may use in their titles the words Russia, the Russian Federation and words and expressions derived therefrom without special authorisation by a competent State body. Section 19: Requirements for founders and members of and participants in nongovernmental organisations (as amended by the Federal Law of 10 January 2006 No. 18-FZ) A person, in whose respect it has been established by a final court decision that there have been elements of extremist activities in his actions, shall not be a founder or member of, or a participant in, a non-governmental organisation Section 29: Duties of a non-governmental organisation A non-governmental organisation is obliged: to comply with the legislation of the Russian Federation, the generally recognised principles and norms of international law concerning its sphere of activity, as well as norms established in its charter and other constituent instruments; to inform yearly the [State] body that registered the organisation about [the organisation s] activity, indicating the place of actual location of its permanent managing body A non-governmental organisation is also obliged to inform the [State] body that registered it of any change to the details listed in section 5 of the Law on State Registration of Legal Entities and Individual Entrepreneurs within three days from the moment when those changes took place Repeated failure by a non-governmental organisation to submit such updated details within the established time-limit shall be grounds for the [State] body that registered the organisation to request a court to terminate the activities of that organisation as a legal entity Repeated failure by a non-governmental organisation to submit the information listed in this section within the prescribed time-limit shall be grounds for the [State] body that registered the organisation to request a court to terminate the activities of that organisation as a legal entity
DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS11 Section 42: suspension of the activities of a non-governmental organisation In the event of a violation by a non-governmental organisation of the Constitution or legislation of the Russian Federation, or the commission of actions in contravention of the purposes defined in its charter, a federal or territorial entity of the State registration authority, or the General Prosecutor of the Russian Federation or a subordinate prosecutor, shall inform the governing body of that organisation of the violations concerned and fix a time-limit for their rectification. If the violations are not remedied within the prescribed time-limit, the State body or official concerned may decide to suspend the activities of the non-governmental organisation for a period of up to six months. The activities of a non-governmental organisation may also be suspended in the manner and on the grounds provided for in [the Suppression of Extremism Act]. Section 44: Liquidation of a non-governmental organisation and ban on its activities in the event of its violating the legislation of the Russian Federation The grounds for liquidating a non-governmental organisation or banning its activities are: repeated or gross breaches by the non-governmental organisation of the Constitution of the Russian Federation, federal constitutional laws, federal laws or other legal instruments Liquidation of a non-governmental organisation entails a ban on its activities irrespective of the fact of its State registration. A non-governmental organisation may be liquidated also in the manner and on the grounds provided for in [the Suppression of Extremism Act]. The Federal Law of 10 January 2006 No. 18-FZ On Amendments in Certain Legal Acts of the Russian Federation (Федеральный закон от 10 января 2006 г. 18-ФЗ «О внесении изменений в некоторые законодательные акты Российской Федерации»), which, inter alia, amended section 19 of the Non-Governmental Organisation Act, provided in its section 6 that it would become operative after the expiry of a ninetyday period from the date of its official publication. COMPLAINTS The applicants complain that the fourth applicant s dissolution violated their right to freedom of expression under Article 10 of the Convention and their right to freedom of association under Article 11 of the Convention.
12DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS The applicants claim that the main reason for the fourth applicant s dissolution was the first applicant s conviction for having published, in a newspaper of which he was chief editor, two articles by Akhmed Zakayev and Aslan Maskhadov, and that all the other grounds were invoked by the domestic courts in their decisions to dissolve the fourth applicant only to make it appear that the fourth applicant s liquidation was triggered by its breaches of various provisions of domestic law rather than by the publication of the aforementioned articles. The applicants allege that the interference with their aforementioned rights was not lawful, firstly because section 19 of the Non-Governmental Organisations Act, a breach of which by the fourth applicant was one of the reasons for its dissolution, was applied by the domestic courts retrospectively. The applicants argue that the aforementioned section in its version as applied by the domestic courts was signed by the Russian President on 10 January 2006, officially published on 17 January 2006 and, under the relevant law, should have become operative after the expiry of a ninety-day period from the date on which it was published, that is, on 18 April 2006. The first applicant s conviction became final on 11 April 2006, that is before section 19 of the Non-Governmental Act became operative, and therefore that provision should not have been applied to justify the fourth applicant s dissolution. Secondly, the applicants argue that the legal provisions which served as a basis for the fourth applicant s dissolution were not sufficiently clear, precise and foreseeable in their application to meet the quality-of-law requirement established in the Convention. They claim, in particular, that it was impossible to foresee that the actions of which the first applicant was convicted would be found by the domestic courts to constitute extremist activity, with the result that the fourth applicant would be found to have violated section 15 of the Suppression of Terrorism Act and section 19 of the Non-Governmental Organisations Act. The applicants point out in this regard that section 1 of the Suppression of Extremism Act defines as extremist activities, inter alia, actions aimed at inciting racial, ethnic, religious or social hostility associated with violence or calls to violence. While it is true that the first applicant was convicted of actions aimed at inciting hostility and humiliating the dignity of a group of persons on the grounds of race, nationality and membership of a social group, it was never found that those actions had been associated with violence or calls to violence. Therefore the offence of which he was convicted did not fall under the notion of extremist activity as defined in section 1 of the Suppression of Extremism Act. The applicants further argue that in the absence, for the aforementioned reasons, of any evidence that the fourth applicant was ever engaged in any extremist activities, its dissolution cannot be said to have been in pursuit of any legitimate aim. They also insist that the measure complained of was not necessary in a democratic society. They reiterate in this respect that the fourth applicant never committed, and none of its members or leaders were ever convicted of, any actions associated with violence or calls to violence that could be regarded as extremist activities; therefore there were no legitimate grounds to dissolve the fourth applicant. The applicants further state that the measure
DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS13 in question was disproportionate, as, even if there were certain shortcomings in the fourth applicant s activity, the fourth applicant should have been given a chance to remedy those shortcomings, pending which, in accordance with section 42 of the Non-Governmental Organisations Act, its functioning could have been suspended rather than terminated. The applicants complain that they were in fact punished for their assistance in disseminating the views of the other party to the conflict in the Chechen Republic. QUESTIONS Has there been a violation of the fourth applicant s rights secured by Articles 10 and 11 of the Convention? In particular, was the fourth applicant s dissolution justified within the meaning of Articles 10 2 and 11 2 of the Convention? More specifically: (a) Was it prescribed by law? Was the law applied in the present case sufficiently clear, foreseeable and specific? When did section 19 of the Non- Governmental Organisations Act, in its version applied during the examination of the case concerning the fourth applicant s dissolution, become operative? Was this provision applied retrospectively in the examination of the case concerning the fourth applicant s dissolution? (b) Did the measure complained of pursue a legitimate aim, and what was that aim? (c) Was the measure complained of necessary in a democratic society? Was it proportionate to the legitimate aim pursued? In particular, were the shortcomings established by the domestic courts in the fourth applicant s activity sufficiently serious to warrant its dissolution? Were the reasons adduced by the domestic courts relevant and sufficient to justify the measure complained of? Regard being had, on the one hand, to the fact that the first applicant was convicted of having performed actions, in the mass-media and using his official position, aimed at inciting hostility and humiliating the dignity of a group of persons on grounds of race, ethnic origin and membership of a social group, and on the other, to the definition of extremism as comprising, inter alia, acts inciting racial, ethnic, religious or social hostility associated with violence or calls to violence, was the domestic courts finding, in the case concerning the fourth applicant s dissolution, that the offence of which the first applicant was convicted fell within that definition and was therefore an extremist one, reasonable and non-arbitrary? In particular, was the Russian Supreme Court s finding in its decision of 23 January 2007, in so far as it suggested that the wording of the corpus delicti of the criminal offence of which the first applicant was convicted
14DMITRIYEVSKIY AND OTHERS v. RUSSIA STATEMENT OF FACTS AND QUESTIONS need not necessarily coincide with the wording of the definition of extremism in section 1 of the Suppression of Extremism Act, reasonable and non-arbitrary? Also, was the Russian Supreme Court s finding in its decision of 23 January 2007, in so far as it suggested that the first applicant s actions could also be qualified as extremism in the light of the other elements in the definition of extremism in section 1 of the aforementioned Act such as, for instance, propaganda of exceptionality, superiority or inferiority of citizens on various grounds reasonable and non-arbitrary, regard being had to the fact that this latter element was expressly excluded by the trial court from the charges on which the first applicant was convicted? Also, were the violations by the fourth applicant of the domestic legislation referred to by the domestic courts sufficiently serious to be the grounds for its dissolution? Regard being had to the provisions of section 42 of the Non-Governmental Organisations Act, could the shortcomings listed by the domestic courts be rectified without the fourth applicant s liquidation being ordered?