Sergey Budylin
I. Introduction
As a practical matter, governments often want to have some control over what their citizens say to each other. This wish may originate either from selfish interests of government officials, like the desire to protect themselves against public criticism, or from legitimate concerns, like the desire to maintain social peace and stability. But even if the attempts to control speech are made in good faith, they well may be overreaching.
In the modern world the freedom of speech is viewed not only as a “natural right” of a human being, but also as an indispensable tool of social development. Indeed, to remediate social deficiencies, they first must be spoken of. Accordingly, many nations take steps to explicitly limit the governmental ability to control speech. Usually the relevant provisions are included in written constitutions. The freedom of speech may also be protected by international conventions, like the European Convention on Human Rights.
Although the free-speech-related constitutional provisions of various countries often look similar, in reality the practical application of such provisions may be very different. For example, in the U.S. the freedom to criticize, up to the level of a direct insult, a public figure is virtually unlimited.[1] On the other hand, In Germany, as in many other European countries, the freedom of expression is heavily counterbalanced by the political figure’s constitutional right for human dignity.[2] In Russia the “freedom to insult” is non-existent: insulting an official figure is a criminal offence against state power.[3] Controlling speech on the Internet is an especially challenging task for governments. The Internet allows a speaker to instantly address to, potentially, millions of listeners. At the same time, the Internet allows the speaker to retain at least a certain level of anonymity and, therefore, a certain level of invulnerability against governmental repression. These features make the Internet both very useful and, potentially, very dangerous tool. However, the practical possibilities for governments to control the Internet content are limited.
Besides or instead of repressing the speaker personally, the government often wants to remove from the web the Internet resource transmitting the undesired speech. This often appears to be practically difficult. Unless the web site is associated with some “offline” entity, like a hard copy magazine, straightforward actions against the site may be frustrating. Even if the site activity is enjoined by a court, the site hosting may simply move away from the court jurisdiction. Even if the site domain is deregistered upon a court order, the site may simply move to another domain.
In this article I discuss the problems related to free speech and its control on the Internet in Russia. The Russian section of the Internet (meaning the whole “ru” domain plus Russian-language sites in other domains) is informally known as the “Runet.” The Internet is a relatively new means of communication for Russians, but it is booming. Accordingly, the freedom-of-speech-related legal problems are increasingly becoming burning. I limit the discussion only to cases where the speech sought to be restricted by the government constitutes or includes critical comments related to state bodies or individual sate officials.
II. The Law
In this section I list the main Russian statutory law provisions and international treaty provisions related to the freedom of speech, plus the provisions of some legally binding RF Supreme Court rulings. None of them is Internet-specific.
According to the RF Constitution: “Everyone shall be guaranteed the freedom of ideas and speech.”[4] Further: “Everyone shall have the right to freely look for, receive, transmit, produce and distribute information by any legal way.”[5] Also: “The freedom of mass communication shall be guaranteed.”[6] On the other hand: “The rights and freedoms of man and citizen may be limited by the federal law only to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for ensuring defence of the country and security of the State.”[7] In particular: “The propaganda or agitation instigating social, racial, national or religious hatred and strife shall not be allowed.”[8] According to the European Convention on Human Rights (Rome 1950) (“Convention”), to which Russia is a party: “Everyone has the right to freedom of expression.”[9] On the other hand: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”[10] According to the RF Civil Code: “If a citizen has been caused moral harm (physical or mental suffering) by actions violating his personal non-property rights or infringing other non-material rights belonging to the citizen and also in other cases provided by a statute, a court hay impose upon a violator the obligation of monetary compensation for this harm.”[11] Also, the individual “has the right to demand in court the refutation of communications defaming his honor, dignity, or business reputation unless the person who disseminated such communications shows that they correspond to reality.”[12] According to the RF Law “On Mass Communication Media,” a journalist is obliged to “check the accuracy of the information he communicates,” and to “respect the rights, lawful interests, honor, and dignity of citizens and organizations.”[13] According to the law “On Information, Information Technologies, an Information Protection,” the distribution of information is generally free, but can be restricted by a federal law.[14] The restrictions are legally established for the protection of the constitutional order basis, rights of other persons, etc.[15] Prohibited is the distribution of the information kindling ethnic hatred etc., and of any information the distribution of which is banned by criminal or administrative law.[16] In addition to statutory law, the RF Supreme Court Plenum issued two rulings concerning defamation cases.[17] Such rulings are legally binding for all general-jurisdiction courts (although not for economic or “arbitrazh” court) thus being an example of, effectively, court-made law in a civil-law country. The 1994 Ruling, in particular, specifies the concept of “moral harm” as [1] physical or moral suffering [2] inflicted by actions (omissions), [3] infringing non-material benefits belonging to the citizen by birth or under a law (life, health, personal dignity, business reputation, personal life inviolability, personal and family secret, etc.), or violating his non-material rights (right to use one’s name, right of authorship and other non-property rights under the laws on the protection of intellectual activity results [IP law]), or violating property rights of the citizen.[18] The 2005 Ruling points out that in cases for the protection of honor, dignity, and business reputation courts should apply not only the domestic legislation and the Russian Constitution, but also the Convention and the relevant European Court of Human Rights (ECHR) case-law. According to the RF Supreme Court, the Convention term “defamation” is equivalent to the “dissemination of false defaming communications” mentioned by the Civil Code.[19] Further, the Supreme Court specifies the necessary elements of defamation as “[1] the fact of dissemination of communications about the plaintiff, [2] the defaming character of these communications, and [3] the lack of their correspondence to the reality.” (The terms are further carefully explained by the Court.)[20] The Supreme Court also points out that political figures effectively agree to be an object of social political discussion and criticism in the mass media. Governmental officials may be subject to the mass media criticism in relation to their fulfillment of their obligations, because this is necessary for open and responsible application of their authorities.[21] The criminal law of Russia, the RF Criminal Code, contains certain provisions that may be viewed as direct restrictions on speech imposed with the purpose of protecting the rights of other people or national interests. In particular, the list of crimes under the Criminal Code includes the following: criminal defamation;[22] insult;[23] inciting hatred against or humiliating members of a sexual, racial, ethnic, religious, or social group,[24] insulting a representative of state power.[25] III. The Ways to Restrict Speech
Generally, governmental officials may be expected to take several different roots in restricting undesired speech. Some of the roots are legal, some are not.
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Criminal prosecution. The speaker may be criminally prosecuted on various charges envisaged by the RF Criminal Code (UK RF), e.g., the insult of a representative of state power.
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Civil defamation claim. A criticized official may file a civil libel claim against the speaker asking the court to award him damages and compensate for moral harm. As mentioned above, statutorily this is called a claim for the “protection of honor, dignity, and business reputation.”
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Governmental oppression. Instead of entering into an open legal dispute with the speaker, the unhappy officials may choose to oppress him or her in some other way. The means of oppression may be either legitimate, at least facially, such as a refusal of entry to Russia for a foreign journalist,[26] or, sometimes, blatantly illegal, such as ungrounded detention of journalists.[27]
The Internet-site-specific actions of unhappy officials may include the following.
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Civil injunction claim. Officials may file a civil claim for enjoining the web site activity because of its illegality. The resulting court order may be addressed both to the site owner and to the site hoster (the company providing physical facilities for maintaining the site and connecting it to the Internet).
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Deregistration claim. If the site is in the “ru” domain, officials may file a civil claim for the domain name deregistration on the grounds of the illegality of the site activity. (Although it is not certain that such a claim in fact has a legal ground.) The resulting court order would be addressed to the Russian company responsible for registering domains in the “ru” domain.
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Claim under mass media law. Certain web sites, usually associated with hard copy journals or magazines, are registered as mass media. Then officials may ask the court to deregister or otherwise sanction the mass medium because of a violation of mass media law. The other web sites are not legally mass media. Nevertheless, officials occasionally make attempts, sometimes successful, to enjoin their activity on the grounds of violations of mass media law.
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Informal pressure. Informal pressure may be put, e.g., upon hosting services providers to deny hosting to the undesirable site. Such actions are difficult to challenge in court because of no evidence left.
IV. The Ways to Run the Restrictions
As for the speaker, she also may be expected to counter the governmental actions against her in a number of ways. Again, some of the roots are legal, but some are not.
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Defense on statutory grounds. If criminal or civil procedures are instituted against the speaker she of course may straightforwardly defend her case on the ground of applicable statutory provisions, e.g., proving in a criminal case that she had not in fact incited social hatred, or proving in a civil defamation case that her statements were true.
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Constitutional defense. The speaker may argue that even if her speech is formally actionable under a relevant criminal or civil-law statute, the speech is subject to protection under the free-speech article of the Constitution. In theory, the Constitution has a direct force, that is, may be applied by any court.[28] In practice, in criminal cases courts rarely, if ever, accept the constitutional defense. If the case relates to the propaganda of social, ethnic, etc. hatred, such propaganda is directly prohibited by the Constitution itself; as for other criminal charges, courts normally simply take it for granted that all Criminal Code provisions correspond to the Constitution, unless, of course, the Constitutional Court held otherwise. In a civil defamation claim the constitutional defense may be more useful. As mentioned above, the RF Supreme Court expressly ruled that courts should apply in civil defamation cases the free-speech provisions of the Constitution, and that the criticism in relation to official figures is welcome.
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Constitutional complaint. If the speaker is not satisfied by how courts interpreted criminal or civil law in her case, she may file a complaint to the RF Constitutional Court, challenging the constitutionality of relevant criminal or civil law provisions, as interpreted by courts. The freedom of speech does not appear to be in the center of the current Constitutional Court jurisprudence, though.
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Conventional defense. The European Convention protects the freedom of expression in much the same way as the RF Constitution. The big difference is that for the conventional provision extensive interpretation is available in ECHR case-law. As mentioned above, the RF Supreme Court explicitly ruled that courts should take into consideration both the black-letter conventional provisions and ECHR case-law.
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Conventional complaint. If the speaker’s expression is suppressed and she can not get remedy from domestic courts, she may file a claim with the ECHR in accordance with the terms of the Convention. However, the ECHR is overloaded; the case, even if accepted by the Court, is likely to be waiting for its turn for years.
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Challenging oppressive actions in court. If governmental officials take oppressive actions against the speaker while avoiding to enter into a direct legal dispute with her, she of course may challenge in court such actions as illegal.
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Disobedience. Sometimes a person simply refuses to obey the authorities’ orders, such as a court order enjoining the site activity. In particular, if the site itself is physically out of the court’s reach, it may be practically difficult to compel the site owner to comply with the injunction. What is much worse, in extreme cases in response to perceived oppression by governmental officials some people slip into illegal violent actions against such officials (in fact, avoiding such a result is one of major rationales for the state protection of free speech). Of course, both variants of disobedience are highly unsatisfactory in terms of establishing the rule of law in Russia (of course, equally unsatisfactory are the illegal oppressive actions of the authorities).
The Internet-site-specific ways of responsive actions include the following.
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Jurisdictional defense. If the site is hosted outside Russia (even if being in the “ru” domain), the site owner may state in response to a civil claim that the case is out of the Russian court jurisdiction. Sometimes it works; although sometimes it does not (the examples will follow).
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Moving the site. If a hoster shuts down he site on informal “advise” of authorities, it is usually no problem to move the site to another hoster. If the authorities get tough, the site moves abroad. If the “ru”-zone domain name is deregistered, the site can be moved to another zone. Of course, this does not exclude the potential liability of individuals authoring and publishing the site materials, provided they are within the Russian courts reach.
Most of the roots mentioned above will be exemplified by the cases to be discussed in a moment.
V. Case-Law
In this section I review several recent high-profile cases related to free speech on the Russian Internet. While Russia is a civil-law country and no court judgment is precedential in the common-law sense, the case law is indicative of how judges read the written law.
In Russia both criminal cases and civil defamation cases in relation to physical persons are in the province of general-jurisdictional courts (rather than “arbitrazh,” that is, economic, courts). Other criminal cases are also considered by general-jurisdiction courts. Jury trial in Russia is available only in certain especially serious criminal cases, not relevant here. Accordingly, the cases under consideration are resolved by a judge.
General-jurisdiction court judgments are almost never published officially (except for selected RF Supreme Court cases) and their materials are unavailable to general public. The whole discussion below is mostly based on media reports, often incomplete in legal terms. (Fortunately for legal scholars, sometimes high-profile case materials are published by a party or a third person.) Nevertheless, these incomplete accounts arguably characterize the state of Russian free-speech law much better than volumes of sophisticated constitutional law textbooks.
A. Rakhmankov Case
In this case a journalist, also being the publisher, was found criminally liable for the insult of the Russian President.
Vladimir Rakhmankov is the editor of a small web news service “Cursiv” based in Ivanovo, Russia (cursiv.ru). On 18 May 2006 he published on the site of the Cursiv his own feuilleton “Putin as a Phallic Symbol of Russia.” There Rakhmankov, iter alia, discussed in a satiric form a recent address of then-President Vladimir Putin to the Russian parliament. In his address President urged Russians to solve demographic problems of the country by drastically increasing the birth rate. Rakhmankov characterized the president’s speech as “semi-delirious” and called Putin “a phallic symbol of the country.”
Rakhmankov was prosecuted for “insulting a representative of state power.”[29] He was sentenced to a fine of 20,000 rubles (about US$800). A defendant’s appeal was dismissed by Ivanovo Region Court. The materials of the case have not been published but apparently no constitutional issues have been tested by courts. The case has never reached either the Supreme Court or the Constitutional Court. Even before the court decision, several different hosters in turn closed the site, reportedly upon an informal advice of the Federal State Security Service (FSB) officers; finally the site moved to the US. The domain name remained to be in the “ru” zone.
Notably, the text of the article is still widely available on the Internet, albeit not on the Cursiv site itself.
B. Luzhkov v. Kommersant
In this case, the magazine was found civilly liable for the defamation of the Moscow Mayor. The case is not exactly Internet-specific: here the Mayor sued for libel a “hard copy” magazine Kommersant-Vlast. However, when calculating damages, the court took into consideration that the magazine reproduced the article on its web site (kommersant.ru). I think the case is sufficiently instructive to be reviewed here.
In October 2007 the magazine published a two-paragraph article “Yuri Luzhkov will help his wife with cement.”[30] The article quoted a statement of the Mayor’s office, which explained the “galloping increase” of cement prices by the monopolistic character of the cement market, controlled by the company named Evrocement. The article also quoted Mayor himself, who stated that costly cement might harm the governmental national project “Accessible Residence” and promised to ask the Federal Anti-Monopoly Service (“FAS”) to look into the problem. The article went on to inform readers that “by coincidence” the company Inteco, controlled by Luzhkov’s wife Elena Baturina, had recently released its plans to drastically expand its cement business. “It is obvious that now, with assistance of Luzhkov and, possibly, the FAS, it will be easier for Inteco to reaches its goals,” alleged the article. Believing the quoted allegation, as well as the article title, is libelous, Luzhkov filed a civil suit for protection of his honor, dignity, and business reputation to the general-jurisdiction Tverskoy District Court in Moscow. In the judgment Judge Fedoseyeva of the Tverskoy Court stated the facts, cited to the Civil Code, to the Law “On Mass Communication Media,” and to the 2005 Ruling, although, notably, not to the Constitution and the Convention, and found that the disputed allegation “in the context of the article forms a reader’s opinion that the actions of the Moscow Mayor on decreasing the cement prices are inseparably connected with the interest of his spouse in the business of cement production.” The judgment goes on to indicate that in his oath the Mayor declares: “I swear . . . to observe the RF Constitution, federal legislation, Charter and laws of Moscow, honestly and in god faith to fulfill the duties I am entrusted with.” “Therefore, the disseminated communications allows concluding that the [Luzhkov] acts with the purpose of creating favorable conditions for the development of the business of his spouse, Elena Baturina, in breach of good-faith fulfillment of the duties entrusted to him, against the interests of the public service, functions and authorities of the Moscow Mayor.” The magazine failed to present any proof that the allegations in question were true; therefore, the magazine is liable.
To determine the amount of damages, Judge Fedoseyeva listed a number of factors, such as “large circulation of the weekly, [and] publishing the article on the [publishing house] internet-site,” all aggravating the liability. Somewhat surprisingly, immediately after listing the aggravating factors, the judge reduced the amount of the original claim from RUR500,000 to RUR5,000 (that is, by 100 times). This is about $200. The publishing house was also directed to refute the relevant statements.
The issue of the availability of political figures for criticism was not touched in the judgment. In fact, no Constitution- or Convention-related issue was ever mentioned.
As mentioned above, general-jurisdiction court judgments are usually unavailable to the public. However, a graphic copy of this one was published by the defendant magazine. Journalists marked all factual, grammatical, orthographic, stylistic, and punctuation mistakes made in the judgment, with a red pen. More than thirty ones were found in the two-page document. In particular, mistakes were made in the name of the defendant (a letter is missing); in the nature of the publication (the magazine is called a “newspaper”); in the name of the plaintiff (initials without periods); in the status of the plaintiff (“Sir of Moscow” instead of “Mayor of Moscow”; in Russian the difference is in one letter); in the amount of the claim (RUR5 mln instead of RUR500,000), and in the word “Constitution” (put in plural in the text of the Mayor’s oath: “RF Constitutions”).
Notably, during the 16 years in the Mayor’s office Yuri Luzkov filed 49 defamation suits against various persons, including the ex-USSR President Mikhail Gorbachev. At least three defamation suits were filed against Luzhkov, including that by Moscow gays. Luzhkov prevailed in all cases.[31] According to the Russian version of the Forbes magazine, Elena Baturina (Luzhkov’s wife) in 2007 was the only female billionaire in Russia.[32] C. Terentiev Case
This is the first known case of the criminal prosecution of a private blogger rather than a news agency or a magazine. The blogger was found criminally liable for inciting hatred against the police.
Savva Terentyev is a musician residing in Syktyvkar, Komi Republic, Russia. In February 2007 he left a comment in a blog of his acquaintance (located at livejournal.com). The comment was a response to a post entitled “Cyberpolice is being Used in Elections.” The original post related to the search conducted by the Department “K” (the police department responsible for computer crimes) in the editorial office of the local newspaper Iskra (six computer hard disks had been seized). While formally the police had been looking for counterfeited software, the post suggested that in fact the police had attempted to discontinue the circulation of the newspaper because of upcoming elections. In response, Terentyev in his comment made several extremely negative remarks in relation to the police. In particular, he stated (the translation is approximate): “I hate f------ cops.” He also suggested that “wrong cops” should be publicly burned on central squares of all Russian cities in “Auschwitz-like ovens.”
Terentyev was prosecuted on charges of “inciting hatred against and humiliating the dignity of members of a social group,” the social group being - the police. He was found guilty and sentenced to one year of imprisonment, but the punishment was made “conditional” with the one-year probation period. To be sure, this means that Terentyev will not go to jail unless he commits another violation in one year.
The text of the judgement is available on a private blog.[33] It appears that the discussion in court mostly related to (1) whether “cops” and “wrong cops” meant the police as a whole, or only unscrupulous or corrupt police officers, as the defense insisted (the court decided that both terms referred to the police as a whole); and (2) whether the police is a “social group” within the meaning of the statute protecting such groups from inciting hatred and humiliating (the court decided that the police is a social group). While Terentyev’s attorneys raised the constitutional/conventional defense in court, the judge succinctly dismissed the argument, simply pointing out that both the Constitution and the Convention allows restricting human rights by law where this is necessary for state security, the protection of other people’s rights, etc. D. Ingushetiya.ru Case
By far the most infamous and perhaps the most instructive story concerning the freedom of speech on the Russian Internet is the case, or rather a series of court cases and out-of-court events, related to a web site of the Ingush opposition, Ingushetiya.ru. After a number of contradictory judgments in various civil and criminal processes, the site activity was finally enjoined and the domain name deregistered. Moreover, the site owner was detained and shot dead by the Ingush police. The authorities say the shot was accidental. Nevertheless, shortly after that the Ingush president was dismissed from the office by President Medvedev.
Ingushetia is a Russian Federation constituency in the North Caucuses, neighboring with Chechnya, North Ossetia, and Georgia. Ingushetia is one of Russia’
s poorest regions. In recent years it saw numerous anti-government protests, terrorist attacks, military excesses and deteriorating human rights situation.[34] Ingushetiya.ru was an independent news service web site, being extremely critical towards the current Ingush authorities and then Ingush President Murat Zyaikov in particular. The Ingush authorities, in turn, accused the site of extremism and repeatedly tried to stop its activity. This appeared to be somewhat difficult because the site owner Mahomed Yevloev had moved to Moscow, and the site, while being located in the Russian top-level domain, was physically hosted in the U.S.
In July 2007 criminal proceedings were instituted in Moscow on the occasion of publishing on the site in 2005 certain materials allegedly kindling ethnic hatred.[35] This criminal case has never reached the court. In November 2007 the site accused the Ingush authorities of blocking the access to the site for Ingush residents. According to the site, following a secret instruction of the Internal Affairs Ministry of Ingushetia, two major Ingush Internet providers redirected the users trying to access the site to an English-language porn site.[36] Both providers, however, denied blocking the access to the site.[37] The Ingush General Attorney filed a petition to the Ingushetia Supreme Court asking to enjoin the site activity. (The Ingushetia Supreme Court belongs to the system of federal general-jurisdiction courts, with the RF Supreme Court as its higher instance.) In February 2008 the Ingushetia Supreme Court dismissed the case for the lack of jurisdiction. The court reportedly advised the Ingush Attorney General to file his claim in the U.S., where the site was “registered.” In March 2008 the RF Supreme Court affirmed the Ingushetia Supreme Court decision.[38] Instead of turning to U.S. court assistance, the Ingush General Attorney Office continued filing various claims against the site to Russian courts, including ones in Ingushetia and Moscow. According to the site, in one of the civil claims filed in Ingushetia the Ingush Deputy Attorney General asked to annul the site domain name registration.[39] The claim was addressed to the domain name registrant Mahomed Yevloev, the site Editor-in-Chief Roza Malsagova, and the two Russian organizations responsible for the “RU” top-level domain administration. While the domain administrator organizations are located in Moscow, the claim was filed in Nazran, Ingushetia, at the place of the permanent residential registration (“propiska”) of Roza Malsagova. The plaintiff argued that some of the site materials contain “public calls for committing extremist actions and terrorist acts, kindling hatred or hostility, and also humiliating the dignity of a person or a group of persons.” In support of the claim, three materials were cited. First, an interview with a former federal inspector for Ingushetia Musa Keligov, reprinted on the site from a Moscow newspaper “Vremya Novostey.”[40] The interview allegedly contains knowingly false accusations of President Zyazikov of financing terrorist combatants. According to the law “On Counteracting Extremist Activity,” financing terrorism is extremism by definition, and a knowingly false public accusation of a governmental official of extremism is in itself extremism.[41] Earlier, in April 2008, the Nazran District Court, following a petition of the Ingush Attorney General Office, held this material to be extremist. (The site representatives argued that that court decision had been illegal, inter alia, because of being adopted secretly, without any notice to the defendants.)[42] Notably, the claim cited to the provision of the law “On Counteracting Extremist Activity” prohibiting the dissemination of extremist materials by a “mass communication medium,”[43] whereas the site apparently did not fall into the legal definition of a “mass medium,” and at any rate was not registered as such. Second, some materials were alleged to kindle hatred (hostility), and humiliate the dignity of persons by ethnic origin principle. Apparently as an example of such materials, the claim cites to an article by Khadzhimurat Kostoev “Ingushes do not Want to Live in Ossetia, but Strive to Move Home – to Ingushetia,” published on the site in 2005 (which resulted in the institution of the above mentioned criminal proceedings in Moscow in 2007).[44] Third, the site published a call for a public meeting in Ingushetia, the meeting allegedly being of extremist character. (As for the meeting organizers themselves, they identified its goals as “the support of [then RF President] Vladimir Putin’s policy against the terrorism and corruption.”)[45] The claim addresses the constitutional issue of the freedom of speech,[46] but points out that the Constitution disallows the abuse of the freedom of speech where it infringes the rights of other citizens.[47] In particular, the Constitution disallows racial or ethnic superiority propaganda.[48] The claim concludes by asking the court to hold that the administration of the ingushetiya.ru domain violates the rights of an “uncertain circle of persons,” the interests of Russia and Ingushetia, and to annul the domain registration.
The Nazran court, however, refused to consider the claim on the merits, indicating that although Roza Malsagova is registered in Nazran, she in fact resides in Moscow, where she has a temporary registration. Accordingly, the court passed the case to the Cheremushkinskiy District Court in Moscow. Apparently, the Cheremushkinskiy court has not considered the case.
Another claim was filed by the Ingush Attorney General Yuri Turygin to the Moscow City Court (“Mosgorsud”). The details of the claim are unknown, but apparently instead of asking the court to deregister the domain, the plaintiff asked to shut down the site as a “mass medium.” In April 2008 Mosgorsud refused to consider the case on the merits, and passed it to the Kuntsevskiy District Court in Moscow (at the place of residence of Mahomed Yevloev, the site owner). [49] In May 2008 the Kuntsevskiy Court preliminarily enjoined the activity of the site.[50] Judge Lidia Sorokina issued an unprecedented order to “restrict the access to the site by filtering IP addresses.”[51] The order was apparently directed to all Russian internet providers, although did not mention any one of them by name. (The site, however, remained available on the web.) Finally, on 6 June 2008 the Ingush General Attorney had his day in court: Judge Sorokina agreed that the site has published extremist materials and ordered “to cease the activity of the mass communication medium – the ‘Ingushetiya.ru’ site.”[52] The judgment is rather disputable, both because of constitutional issues and because of the formal argument that the site is not legally “mass medium.” The defendants appealed to Mosgorsud, but it affirmed the lower court.[53] Note that, strictly speaking, this judgment does not order deregistering the site domain name, which is technically easily realizable. Instead the judgment calls for “ceasing the activity” of a web site physically hosted abroad, which is practically somewhat difficult to enforce. Apparently the court considers “filtering IP addresses” as a way to put the decision into practice. Perhaps this method is more effective against such obvious circumvention technique as simply moving the site to another domain. However, to put the decision into effect, any single internet provider in Russia must obey to it. This of course raises some questions because the providers were not parties to the dispute, and the site materials are not on the list of the officially banned extremist literature (currently consisting of 151 items).[54] By that time both the site owner (Mahomed Yevloyev) and its Editor-in-Chief moved abroad. Roza Malsagova petitioned for a political asylum in France. However, in August 2008 Yevloyev decided to make a one-day visit to Ingushetia.
On August 31, 2008, Yevloyev’s flight from Moscow landed in the Magas airport in Ingushetia. As it happened, President Zyazikov arrived from Moscow on the same aircraft. Minutes upon Zyazikov’s depart four armored police cars approached the aircraft. Police officers, led by the Ingush Internal Affairs Minister Musa Medov, seized Yevloyev and hustled him to a car. A group of Yevloyev’s relatives and friends tried to liberate him, but the police kept them off by firing machine guns. Yevloyev’s friends, fearing for Yevloyev, followed the police motorcade. They managed to block and stop a police car, but Yevloyev was not there. They beat up the policemen and headed for the regional police department, apparently intending to storm it and liberate Yevloyev. But Yevloyev was not there either. As later appeared, he was shot in the head right in the car and later that day died in a hospital during a surgical operation. According to some reports, he was thrown out of the police car near the hospital.[55] The police say Yevloyev was trying to overpower a policeman and to grab a machine gun. The prosecutor office instituted criminal proceedings on “negligent homicide” charges.[56] According to media reports, the negligent homicide charges were brought against a police officer Ibrahim Yevloyev (only a namesake, not a relative, of the killed).[57] The opposition representatives opine that Yevloyev was killed intentionally. In accordance to Ingush mountaineers’ customary law (also informally known as “mountain law”), Yevloyev’s relatives may kill the person or persons responsible for the killing, or their relatives.[58] While the blood feud tradition is of course not supported officially, in Ingushetia it is still has a very real force. Several persons have already publicly sworn to avenge for Yevloyev’s death.[59] In less than two months from Yevloyev’s death three assassination attempts were undertaken against relatives of Zyazikov. Bekkhan Zyazikov was murdered,[60] two other attempts were unsuccessful.[61] A suicide bomber undertook an unsuccessful assassination attempt against Musa Medov (the Ingush police head).[62] The murderers have not yet been detected. The opposition and Yevloyev’s relatives deny their involvement. Meanwhile, the site Ingushetiya.ru published a list of persons allegedly responsible for Yevloyev’s death, naming it “Yevloyev murderers.” No formal action against the site followed. However, on 25 September 2008 the Russian Regional Domain Name Registration Center (Center) deregistered the site. In a relevant notice the Center refers to the above-discussed Kuntsevskiy Court judgment. The site editors’ attorney Musa Pliev argues that the deregistration is illegal, because the Kuntsevskiy Court decision was not addressed to the Center specifically, and did not call for the site deregistration. As for the site, it simply moved to Ingushetia.org.[63] On 30 October the Russian President Dmitry Medvedev signed a decree dismissing Murat Zyazikov form the office of the Ingush president. He was replaced by the Colonel Yunus-Bek Yevkurov.[64] Ingushes responded by a kind of a mass celebration with dances in the streets.[65] The new Ingush President made it clear that he did not shre the views of Zyazikov on the opposition activities. President Yevkurov met with Yevloyev’s family and promised to secure an objective investigation of the Yevloyev’s death. He also met with opposition leaders and they declared their support to the new president.
On 7 November the Supreme Court of Ingushetia reversed the April 2008 decision of the Nazran court holding the Ingushetia.ru site materials “extremist.” The case was remanded back to the district court for further proceedings. The site representatives express the hope that the site will soon be able to continue its activities under its old name.
VI. Conclusion
The situation with the freedom of speech in the Russian Internet appears to be unsatisfactory. In all or most high-profile cases where somebody was sued, whether criminally or civilly, for or in relation to the critical comments concerning governmental bodies of individual officials, the speakers lost. This does not necessarily mean that all those cases were decided erroneously, but the current court practice seems to give much more weight to the interests of governmental bodies and officials as compared to the constitutionally protected free speech right. In fact, courts usually either do not consider constitutional issues at all, or formally dispose of them by simply pointing out that the constitutional free-speech right is counterbalanced by other constitutionally protected rights and interests. While this statement is of course legally true, the issue definitely deserves a more thorough analysis. The Constitutional Court is yet to say his word in striking the balance; currently free-speech issues do not seem to be in the center of its jurisprudence. The insufficient free-speech protection is unfortunate: this may be highly detrimental for the development of the Russian society.
[1] See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). [2] See, e.g., BVerfGE 75, 369 (1987). [3] RF Criminal Code, art. 319. [4] RF Constitution, art 29(1). [9] Convention art 10(1). [11] RF Civil Code art 151. [13] RF Law of 27 December 1991 N 2124-1 (last amended 24 July 2007), at art 49, RG, N 32, 08.02.1992. [14] Federal Law of 27 July 2006 N 149-FZ, at art. 15(5), SZ RF, 2006, N 31 (pt. 1), item 3448. [17] RF Supreme Court Plenum Decisions of 20 December 1994 N 10 (last amended 6 February 2007), RG, N 29, 08.02.1995 (“1994 Ruling”); of 24 February 2005, RG, N 50, 15.03.2005 (“2005 Ruling”). [22] RF Criminal Code art. 129. [28] RF Constitution, art. 15(1). [29] RF Civil Code, art 319. [39] http://www.ingushetia.org/news/14342.html. This is a rare case where the text of the claim, if not of the judgment, is publicly available (here, because of having been published by the defendant), so the legal argumentation of at least one party is known. [41] Federal Law of 25 July 2002 N 114-FZ (last amended 29 April 2008), art 1(1), SZ RF, 2002, N 30, item 3031; SZ RF, 2007, N 31, item 4008 (new edition); SZ RF, 2008, N 19 (correction). [43] Federal Law, supra n. 7, at art. 11. [46] RF Const. art 29(1). [56] RF Criminal Code art 109. [58] See, e.g., Austin Jersild, Orientalism and Empire: North Caucasus Mountain Peoples and the Georgian Frontier, 1845-1917, at 89-109 (McGill-Queen's Press, 2003).
