12 February 2025
The ECtHR has handed down a ruling regarding the amendments to the Criminal Code and Code of Administrative Offences adopted after the start of the Special Military Operation. Why can it not be taken on board and implemented?
by Leonid Nikitinsky
Source: Novaya Gazeta
On 11 February 2025, the European Court of Human Rights (ECtHR) heard what was probably to be its last major case ‘against Russia’. The court ruled in favour of a number of applications on the basis of Article 10 of the European Convention on Human Rights (ECHR) on freedom of expression. These appeals were from: Novaya Gazeta and Dmitry Muratov*, TV Dozhd** and Natalya Sindeeva*; seven individuals prosecuted for publishing ‘fake news about the armed forces’ (Article 207.3 of the Russian Criminal Code), and 128 citizens convicted on administrative charges for ‘discrediting’ the military (Article 20.3.3 of the Russian Code of Administrative Offences).
These ECHR violations occurred both before and after Russia’s exit from the Council of Europe on March 15 2022, up until September 16 2022, which marked the end of the ECtHR’s jurisdiction over Russia.
Among the seven individuals unjustly prosecuted by ECtHR standards are: Vladimir Kara-Murza*, Aleksandra Skochilenko, the journalist Mikhail Afanasiev from Abakan, the Ukrainian journalist Dmitry Gordon*, convicted by Russia in absentia, and others. Violations of ECHR Articles 3 (inhumane treatment) and 5 (detention without sufficient grounds) have also been established in the cases of Kara-Murza and Skochilenko, as well as a violation of Article 8 (disregard for personal and family life) in Afanasiev’s case.
In the case of Gordon, who criticised Russian actions on his Ukrainian TV channel in terms bordering on the obscene, the judges took into account objections they considered the absent Russian side may have made and the actual situation in which Gordon had made his statements.
128 applications concerned a range of prosecutions under Article 20.3.3 of the Code of Administrative Offences, including for the displaying the slogans “For Peace” and “*** ***” and the Ukrainian flag and defacement of the Z symbol. A separate part of the ECtHR’s ruling concerned two Crimeans convicted under Russian law at a time when, according to international law, Crimea was under Ukrainian jurisdiction.
The seven ECtHR judges chaired by Ioannis Ktistakis from Greece expressed regret that Russia was not participating in the hearing of the applications by its citizens, but took into account the opinion of Ukraine as an interested third party.
From the full ECtHR ruling it follows that the legal violations (including violations of the Russian constitution) were the inevitable consequence of de facto political censorship, implemented without a declaration of war or a state of emergency. However, possibly, it might be the other way round: the introduction of such severe censorship was one of the Kremlin’s goals when it took the decision to launch the Special Military Operation.
The ECtHR has effectively not said anything that we would not have written since the first days of the Special Military Operation.
It is however important to note : whether or not Russia is under the jurisdiction of European courts, the European decision has already been accepted on an international level.
The ECtHR has carefully dissected Article 207.3 of the Russian Criminal Code and Article 20.3.3 of the Russian Code of Administrative Offences, both of which were rushed through the State Duma, approved by the upper chamber, and signed by the president on 4 March 2022. The court carefully examined one specific phrase used in the Russian legislation, and to exclude any ambiguities even cited it in Russian: ‘socially significant information known to be untrustworthy presented as reliable communications’ [«заведомо недостоверная общественно значимая информация под видом достоверных сообщений»].
‘Truth’ is not a meaningless word in criminal and administrative law, and the insistence by the Russian State Communications Agency that only information from the Ministry of Defence be regarded as true is unlawful by definition. According to the ECtHR, Russian courts are in addition ignoring evidence of something being “known to be false” by the defendants themselves, handing down verdicts and sentences without taking into account either the degree of danger to society represented by the defendants nor the actual consequences of their actions, and also ordering disproportionate punishments.
In their ruling, the judges gave a general assessment of the practice of political repression in the Russian Federation, referring to statistics from OVD-Info*, according to which, as of May 2024, there have been 935 criminal, and 9,495 administrative, prosecutions on charges related to anti-war stances. To the picture of military censorship must be added the prosecution of ‘extremists’ and ‘foreign agents’, though these categories themselves were left out of the ruling of 11 February.
The majority of applicants listed in the ECtHR ruling did not claim damage to property, while some assessed such damage in the range of 5,000 –10,000 euros. This latter category should receive compensation, and in addition, the Russian treasury must pay 7,500 euros for moral damages, and 850 euros for legal costs to all applicants. The term for paying these sums does not ‘expire’, and from the perspective of international public and private law, it must be paid sooner or later, and if later, then with interest.
Following its exit from the Council of Europe, Russia officially declared its refusal to comply with ECtHR decisions, but even before that, it had only reliably paid compensation, rarely reviewing the corresponding rulings of Russian courts, and even more infrequently had made legislative changes based on the substantive content of ECtHR rulings. On 14 July 2015, the Constitutional Court established a basis for this, stating that in case of doubt, the president, the government, or the court reviewing the case may appeal to the Constitutional Court, which will issue a ruling on whether the decision of the ECtHR complies with or contradicts the Constitution of the Russian Federation, which has supreme authority within Russia.
This ruling of the Constitutional Court is controversial, but we will not delve into it now. In the ideal scenario that Russia had not only remained in the Council of Europe, but also adhered to the rules of the ECtHR, it would immediately have had to: cease all cases of ‘fake news’ and ‘discreditation’; release those held in custody and compensate them for damages; return money to those who were fined; and most importantly, revoke Article 207.3 of the Russian Criminal Code, 20.3.3 of the Russian Code of Administrative Offences, along with an array of others. But this would be a different country, and for now, it is impossible.
In translating from Russian to English and French, the languages in which ECtHR rulings are written, and vice versa, there arises a complexity deeply rooted in the history of these languages. In Russian, the word ‘pravo’ [право] refers to both legislation and to subjective rights, including freedoms and human rights as defined by the European Convention. In English and French these are words of different origins: in English, they are ‘law’ and ‘rights’ respectively.
Even in an ideal Russian court, when considering a criminal or administrative case, it primarily records (if not ideally, then rather carelessly) violations of law, while for the ECtHR, the focus is always centred on the violation of rights. Only in this way does a Person (with a capital letter) acquire the status of a legal subject in a legal capacity. In Russia, an individual is merely part of ‘the people’, a cog in the state machinery, which is declared to be identical to ‘the people’, or more precisely, its ‘correct part’. It is not enough to be a member of the Council of Europe, if the repressive machine is configured in ‘an Asian manner’.
Russia claimed to be part of Europe (considering its membership in the Council of Europe) from 28 February 1996 until 15 March 2022. But after the year 2000, this was more a formality or a ‘bluff’ – a European jacket on its shoulders, but Soviet military boots on its feet, in which the Russian Federation eventually went ‘its own way’. Perhaps one day it will return?
*Added by the authorities of the Russian Federation to the registry of ‘foreign agents’.
** Designated an undesirable organisation and a ‘foreign agent’ by the authorities of the Russian Federation (twice).
Translated by Friedrich Berg and Annabel Pedgley
