The author of the communication is Pavel Tolmachev, a national of the Russian Federation born in 1988. He claims that the State Party has violated his rights under articles 17 (1) and 19 (2) of the Covenant. The Optional Protocol entered into force for the State Party on 1 January 1992. The author is represented by counsel.
Facts as submitted by the author
Between 2011 and 2013, the author was actively engaged in social activism in Mari El and also organized public meetings at which he criticized the work of the local government. On 8 September 2012, in a speech at a public meeting (with fewer than 30 participants) in the city of Ioshkar-Ola, the author called L.M., the head of the government of Mari El, a “bandit” and stated that he had committed several criminal offences but could not be prosecuted because of his functional immunity. On 2 October 2012, a criminal investigation against the author was opened under article 128.1 (2) of the Russian Criminal Code (slander in a public speech, in a publicly displayed piece of work or in the mass media). On 24 July 2013, the author was found guilty of slander by the Justice of the Peace of Ioshkar-Ola judicial district No. 2 and sentenced to 80 hours of compulsory work.
On 2 August 2013, the author lodged an appeal with Ioshkar-Ola City Court. He claimed that he had criticized the actions of L.M. as head of the government of Mari El and not L.M. personally, that his criticisms were based on the information he had read in the mass media and had heard from third persons, and that he had not intended to damage the reputation or dignity of L.M. He noted that he had publicly apologized to L.M. for his remarks and notified the latter’s press service. On 17 September 2013, Ioshkar-Ola City Court rejected the author’s appeal.
On 27 September 2013, the author submitted a cassation appeal to Ioshkar-Ola City Court. On 3 October 2013, Ioshkar-Ola City Court dismissed the appeal on the basis that it lacked jurisdiction. In its ruling, the Court explained that the cassation appeal needed to be submitted to the Supreme Court of Mari El.
On an unspecified date after his conviction, during the review of the evidentiary materials in his criminal case, the author and his counsel discovered that, on 6 April 2012, a judge of the Supreme Court of Mari El had authorized his personal telephone to be wiretapped. Later, on 12 September 2012, the Supreme Court issued another authorization to the Counter-Terrorism Centre of the Ministry of Internal Affairs of Mari El to wiretap the author’s telephone. The author notes that he did not know that his telephone had been wiretapped until after the trial. He also notes that, under domestic law, judicial decisions authorizing wiretapping, along with any related documents, are considered confidential and can be kept only by those law enforcement authorities that conduct the wiretapping. The author submits that, on 10 November 2012, he petitioned the Supreme Court of Mari El to provide information about any authorizations given by domestic courts to conduct operative and surveillance activities against him. On 23 November 2012, the Deputy Chairman of the Supreme Court of Mari El informed the author that the Supreme Court of Mari El did not have such information and that any decision by the court authorizing surveillance is considered confidential and issued in a single copy, which is provided only to the authority requesting authorization.
The author submits that there are no effective remedies available to him to appeal the Supreme Court’s decision authorizing the wiretapping, owing to the secret nature of the decision. Therefore, he claims to have exhausted all domestic remedies.
Complaint
The author claims that his rights under article 17 (1) of the Covenant were violated by the State Party, as the illegal wiretapping was an arbitrary interference with his private life.
He claims that his rights under article 19 (2) of the Covenant were violated because he was subjected to criminal prosecution and sanctioned solely on the basis of L.M.’s position as the head of the government of Mari El and not as an ordinary citizen. The author submits that, as the head of the government of Mari El, L.M. was legitimately subject to heightened criticism and that, by charging him with slander, the domestic courts took his public remarks completely out of context.
State Party’s observations on admissibility and the merits
On 21 June 2018, the State Party submitted its observations on admissibility and the merits of the communication. The State Party notes that the federal act on operative and investigative activities permits a telephone to be tapped upon the basis of a court order, if information has been received about: (a) a crime that is being or has been committed that requires a preliminary investigation; (b) persons who are preparing to commit or have committed a crime; or (c) events or actions that pose a threat to the state, military, economic, information or environmental security of the Russian Federation. It further notes that a person who believes that the wiretapping against them has violated their rights and freedoms has the right to lodge an appeal against such actions with a higher investigative authority, a prosecutor or a court, in accordance with article 125 of the Code of Criminal Procedure. The State Party submits that, based on the documents submitted, it does not appear that the author filed a complaint against unlawful or unjustified wiretapping upon learning about the wiretapping during the review of the evidentiary materials in his criminal case. Therefore, the author’s claim under article 17 (1) of the Covenant is inadmissible, as the author failed to exhaust domestic remedies.
The State Party notes that, in accordance with article 401.2 (1) of the Code of Criminal Procedure, appeals against court decisions that have entered into force can be lodged with the courts of cassation. It further notes that the author did not lodge a cassation appeal against the decision of the Justice of the Peace of Ioshkar-Ola judicial district No. 2 or against the appellate decision of Ioshkar-Ola City Court. According to the State Party, on 3 October 2013, Ioshkar-Ola City Court dismissed the author’s cassation appeal because article 401.3 of the Code of Criminal Procedure requires such appeals to be submitted to the presidium of the Supreme Court of Mari El instead of Ioshkar-Ola City Court. However, despite the dismissal, the author did not lodge another cassation appeal with the correct court. Therefore, the State Party argues that the author’s claim under article 19 (2) of the Covenant is also inadmissible, as the author failed to exhaust domestic remedies.
With regard to the merits of the communication, the State Party submits that the author was found guilty of wilfully and knowingly disseminating, during a speech at a public meeting, false information about the alleged affiliation of the head of the government of Mari El with organized crime groups. During the author’s trial, the court heard the testimony given by the head of the government of Mari El, L.M., during the pretrial investigation, in which he testified that the author’s public speech had defamed his honour and dignity and undermined his business reputation. The State Party submits that other witnesses testified at the trial that they had heard the author calling L.M. a “bandit”. The event was recorded on video, and the author did not challenge the content of the recording at the trial. The State Party notes that a linguistic examination concluded that the author’s speech had contained allegations of L.M.’s contacts with organized crime and of criminal cases initiated against him. The State Party also notes that, during the pretrial investigation, the author testified that he had used the word “bandit” as a general statement about the characteristics of L.M.’s personality and his behaviour in society. According to the author, he formed this opinion from his exchanges with a large number of acquaintances who had spoken negatively about L.M. The State Party notes that the law enforcement authorities are not aware of information that would implicate L.M.’s involvement with organized crime groups. The State Party concludes that the author’s rights under article 19 of the Covenant were not violated because his criminal conviction was not due to the critical assessment of L.M.’s work as the head of the government of Mari El but rather because the author knowingly disseminated false information that L.M. was connected with organized crime groups. The State Party argues that the exercise of the rights provided for in article 19 (2) may be subject to restrictions, including to protect the rights or reputations of others.
As to the author’s allegations concerning unlawful interference in his private life owing to the wiretapping, the State Party submits that, in 2012 and 2013, the CounterTerrorism Centre of the Ministry of Internal Affairs of Mari El conducted an inquiry into information about the author’s possible involvement in several crimes. On 4 April and 11 September 2012, the Supreme Court of Mari El authorized the wiretapping of the author’s telephone. The State Party notes that domestic law permits the wiretapping of individuals suspected of committing crimes of medium gravity, as well as grave and especially grave crimes, when such wiretapping has been authorized by the courts. In the case of the author, he was suspected of making public calls to commit terrorist activities and of publicly justifying terrorism or its propaganda, which constitute crimes of medium gravity under article 205.2 (2) of the Criminal Code.
Author’s comments on the State Party’s observations on admissibility and the merits
In a letter dated 22 October 2018, the author rejected the State Party’s arguments that he could have submitted a complaint against the unlawful wiretapping upon learning about the wiretapping during the review of the evidentiary materials in his criminal case. He argues that he did not learn about the wiretapping until after the trial court had already handed down a verdict in his case. He notes that, in accordance with article 125 of the Code of Criminal Procedure, once the pretrial investigation is completed, a decision authorizing wiretapping can be appealed only during the trial or as part of the regular or cassation appeal. The author also notes that the Deputy Chairman of the Supreme Court of Mari El informed him that the Supreme Court did not have any information about the wiretapping (see para. 2.4), and since he did not have any evidence that his telephone was tapped, he could not lodge an appeal against it.
With regard to the State Party’s submission that an appeal can be lodged with the courts of cassation against court decisions that have entered into force, the author argues that the cassation appeal cannot be considered an effective domestic remedy. The author notes that the cassation review procedure does not provide for a direct examination of the merits of the case and concerns the review, on points of law only, of court decisions that have entered into force. Moreover, in order for the cassation court, in its full composition, to review the case, one of the judges of the cassation court must first agree with the arguments submitted in the cassation appeal and allow for it to be examined by the full court. Therefore, cassation appeals are, in practice, subject to the discretionary power of a single judge. The author notes that, on 27 September 2013, he submitted a cassation appeal to the Supreme Court of Mari El; however, on 3 October 2013, his appeal was returned without examination by IoshkarOla City Court.
The author further notes that, in Kashlan v. Russia, the European Court of Human Rights came to the conclusion that the new cassation review procedure under the Russian Code of Criminal Procedure, as amended in 2014, did not constitute an ordinary remedy within the meaning of article 35, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and therefore did not have to be exhausted by the applicants before lodging a complaint with the European Court of Human Rights.3
- The author refers to European Court of Human Rights, Kashlan v. Russia, Application No. 60189/15, Decision, 19 April 2016, para. 29. ↩
Lastly, the author rejects the State Party’s argument that the law enforcement authorities acted lawfully when wiretapping his telephone and notes that he was never suspected of, charged with or accused of making public calls to commit terrorist activities or publicly justifying terrorism or its propaganda under article 205.2 (2) of the Criminal Code, as submitted by the State Party. He suggests that the State Party is intentionally trying to mislead the Committee to justify the length of the wiretapping authorized by the domestic courts.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
In accordance with article 5 (2) (b) of the Optional Protocol, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes the State Party’s submission that, with regard to his claim under article 17 of the Covenant, the author has not exhausted all available domestic remedies, as he did not lodge an appeal against the decision authorizing the wiretapping of his telephone with a higher investigative authority, prosecutor or court in accordance with article 125 of the Code of Criminal Procedure. The Committee also notes the author’s submission that the Deputy Chairman of the Supreme Court of Mari El informed the author that the Supreme Court did not have any information about the wiretapping and that a decision by the court authorizing surveillance is considered confidential and is issued in a single copy, which is provided only to the authority requesting the wiretapping. According to the author, since he learned about the wiretapping only after the trial court had already handed down a verdict in his case, he was not able to submit a complaint about its illegality to the prosecutor’s office or the trial court, as suggested by the State Party. In this regard, the Committee has consistently held that the State Party must describe in detail which legal remedies would have been available to an author in the specific case and provide evidence that there would be a reasonable prospect that such remedies would be effective.4 The Committee notes that, in respect of the author’s claim in the present case, the State Party has failed to explain which judicial and administrative avenues could have provided redress when the author was refused access to the court decision that he wanted to appeal, owing to the decision’s alleged confidentiality. In view of the above, the Committee concludes that there were no effective remedies that the author could have pursued concerning his claim under article 17 of the Covenant.
- For example, Bratsylo v. Russian Federation (CCPR/C/140/D/3022/2017), para. 7.6. ↩
At the same time, the Committee notes the State Party’s submission that, on 4 April and 11 September 2012, owing to the Counter-Terrorism Centre’s inquiry into the author’s possible involvement in several crimes, the Supreme Court of Mari El authorized the wiretapping of the author’s telephone. According to the State Party, domestic law permits the wiretapping of individuals suspected of committing crimes of medium gravity, as well as grave and especially grave crimes, when such wiretapping has been authorized by the courts. In the case of the author, he was suspected of making public calls to commit terrorist activities and of publicly justifying terrorism or its propaganda, which constitute crimes of medium gravity under article 205.2 (2) of the Criminal Code. Since the author has not provided any other information that would lead the Committee to conclude that the interference with his privacy, family and home was arbitrary, the Committee considers that the author has insufficiently substantiated his claim under article 17 of the Covenant for the purposes of admissibility and therefore considers it inadmissible under article 2 of the Optional Protocol.
As to the claim raised by the author under article 19 of the Covenant, the Committee notes the State Party’s submission that the author has not exhausted all available domestic remedies, as he did not lodge an appeal against the decision of the Justice of the Peace of Ioshkar-Ola judicial district No. 2 dated 24 July 2013 or against the appellate decision of Ioshkar-Ola City Court dated 17 September 2013 with the presidium of the Supreme Court of Mari El in accordance with the cassation appeal procedure. The Committee also notes the author’s argument that the cassation appeal procedure is not an effective legal remedy because it does not provide for a direct examination of the merits of the case and concerns the review, on points of law only, of court decisions that have entered into force. Moreover, for the cassation court to review the case, a judge of the cassation court must first agree with the arguments in the cassation appeal and allow for it to be examined by the full court; thus, the entire procedure is subject to the discretionary power of a single judge. These characteristics lead the Committee to believe that the cassation review contains elements of an extraordinary remedy. The State Party must therefore show that there is a reasonable prospect that such a procedure would provide an effective remedy in the circumstances of the case.5 However, the Committee notes that, in the present case, the State Party has not provided any information on the effectiveness of the cassation review procedure in cases similar to the present one. In these circumstances and in the absence of any further relevant information, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the claim under article 19 of the Covenant.
- Voronkov v. Russian Federation (CCPR/C/136/D/2951/2017), para. 9.3. ↩
The Committee considers that the author has sufficiently substantiated his claim under article 19 of the Covenant for purposes of admissibility. It therefore declares the claim admissible and proceeds with its examination on the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes that the decision of the domestic courts to sentence the author to 80 hours of compulsory work for slander constituted a restriction on the author’s right to freedom of expression, as guaranteed by article 19 (2) of the Covenant. The Committee must therefore examine whether the imposed restriction was justified under the criteria provided by article 19 (3) of the Covenant.
The Committee refers to its general comment No. 34 (2011), according to which freedom of opinion and freedom of expression are essential for any society and constitute the foundation stone for every free and democratic society.6 According to article 19 (3) of the Covenant, the right to freedom of expression can be subject to certain restrictions, but only such as are provided by law and are necessary: (a) for respect for the rights or reputations of others; or (b) for the protection of national security or public order, or of public health or morals.7 All restrictions imposed on freedom of expression must be provided by law. They may only be imposed on the grounds set out in subparagraphs (a) and (b) of article 19 (3) and they must conform to the strict tests of necessity and proportionality.
In the present case, the Committee notes the State Party’s argument that the judgments of the domestic courts were based on the relevant provisions of Russian legislation, and that their application pursued the legitimate aim of the protection of the reputation or rights of others, namely L.M. Therefore, the restriction imposed on the author was provided for by law. The Committee must therefore decide whether the limitation of the author’s right to freedom of expression, as provided by the Russian Criminal Code, was necessary and proportionate.
The Committee notes the author’s argument that he was subjected to criminal prosecution and sanctioned solely on the basis of L.M.’s position as the head of the government of Mari El and not as an ordinary citizen. The Committee recalls that in circumstances of public and political debate concerning public figures and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high.8 The mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant.9 The Committee considers that defamation laws must be crafted with care to ensure that they comply with article 19 (3) of the Covenant and that they do not serve, in practice, to stifle freedom of expression.10 With regard to comments about public figures, States Parties should give consideration to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice.11 In this regard, the Committee notes the author’s submission that his remarks were based on the information he had read in the mass media and had heard from third persons, and that he publicly apologized to L.M. for his remarks and notified the latter’s press service.
The Committee further observes that, as the author made his contested speech during a public event attended by fewer than 30 people, any damage to L.M.’s reputation was of only a limited nature. The Committee further observes that the State Party has advanced no justification that, under those circumstances, bringing criminal charges against the author for slander and sentencing him to perform compulsory work was necessary. In addition, the State Party has not explained why no other means were available to protect L.M.’s reputation. Taking into account the nature of the penalty imposed on the author in the present case and considering the impact and the context of the remarks made by the author, the restriction of his right to freedom of expression has not been shown to be a necessary and proportionate measure to protect the honour and the reputation of others.12 Accordingly, the Committee concludes that the facts before it disclose a violation of the author’s rights under article 19 (2) of the Covenant.
- Kozlov v. Belarus (CCPR/C/111/D/1986/2010), para. 7.6. ↩
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses a violation by the State Party of the author’s rights under article 19 (2) of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. In the present case, the State Party is obligated to provide the author with adequate compensation. The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.
Bearing in mind that, by becoming a party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the official language of the State Party.