Users ask the ECHR to protect their rights to receive information

In a series of laws introducing more and more new grounds for restricting access to sites, Federal Law No. 398- , widely known in RuNet as the “law on prosecutorial (instant) blocking”, became the most prominent and widely discussed, according to which the Prosecutor General’s Office received an exclusive right administratively block any websites on the Internet for posting “information containing calls for mass riots, extremist activities, participation in mass (public) events held by violation of the established order "(st.15.3 №149-FZ" On Information ").

And the most odious case of the new law was the decision of the General Prosecutor’s Office to block major online media and blog in LiveJournal of the famous politician Alexei Navalny.
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Since then, the decision of the Prosecutor General’s Office and the actions of Roskomnadzor have been the subject of litigation in the Russian courts more than once. Grani.ru appealed against the restriction of access to the site in the Tagansky District Court of Moscow. Kasparov.ru challenged the legality of the decision of state bodies in the Khamovnichesky District Court of Moscow. Alexey Navalny himself, chairman of the Progress Party, appealed against blocking his blog in the Lyublinsky District Court of Moscow. Pavel Rassudov , an activist of the Pirate Party of Russia, and Vadim Karastelev, an activist of the Moscow Helsinki Group, appealed against the blocking of all resources in the Tverskoy District Court of Moscow.

Thus, claims about the illegality of decisions to stop Russian Internet users accessing well-known online media were heard in at least 4 different courts of general jurisdiction, but in all cases, as might be expected, the courts recognized the actions of prosecutors and officials as legal and denied the applicants complaints.

Despite the fact that most of those who read Navalny’s blog prior to restricting access to it with the solution of the LiveJournal themselves, they easily coped with the blocking problem, using a VPN or proxy to bypass blockages, and the Navalny team did everything to maximize the distribution of site mirrors, that technical means do not solve the problem with censorship in Runet. Censorship remains, even though users have bypassed it.

Not many citizens appealed to the court for the protection of their violated rights, but among the users there were those who were ready to go all the way in the struggle for their rights. The Gorbunov family from Anapa, having decided that such actions of state bodies violated their rights to access information, found the strength to appeal against decisions to restrict access to a blog where they regularly read about anti-corruption investigations of the Anti-Corruption Foundation, various resonant events of public life, as well as personal positions of a famous politician on significant social and political events. As in all previous cases, the courts of all instances denied Gorbunov the satisfaction of the complaint and the decision of the Deputy Prosecutor General of the Russian Federation to be illegal. After they failed to achieve justice in the Russian courts, the Gorbunovs applied to RosKomSvoboda for legal aid in order to further appeal against the decision of the Russian courts in the European Court of Human Rights.

By supporting civilized civic activism and satyagraha in the digital age, we could not refuse to help those who decided to fight in international court for the interests of each user of Runet. And the point here is not even Mr. Navalny, who was recently let down by all the dogs. It is a matter of that vicious law-enforcement practice, which was formed in connection with riotous online censorship in the Russian Internet space. Internet users want to access important social and political information through social networks and a blog platform.

The greatest indignation of users is caused by the fact that representatives of the prosecutor's office, who supported the “Lugovoi law”, themselves demonstrate a violation of the Federal Law “on information” by frivolously interpreting the letter of the law. At the same time, the Russian courts are ready to support even the most dubious decisions of law enforcement agencies, spitting on the position of the United Nations and the judicial practice of the ECHR, which should undoubtedly be taken into account when deciding on the restriction of access to resources with a multimillion audience.



On January 20, we sent a complaint to the European Court of Human Rights about the unlawful restriction of access to the blog of oppositionist Navalny in LiveJournal , pointing out that the decision violated the right of users to freely receive information on Alexey Navalny’s blog on anti-corruption investigations of the Foundation and about the personal opinion of the well-known politics for significant socio-political reasons.

The actions of law enforcement agencies and Russian courts are contrary to the UN approach to blocking information on the Internet. In their decisions, the Russian courts did not take into account the provisions of the Joint Declaration on the Freedom of Expression and Opinion on the Internet dated June 1 , 2011, adopted by the United Nations, which emphasize the fundamental importance of free expression, including the principles of independence and diversity, both as individual rights and as important a tool to protect all other rights, as well as a fundamental element of democracy and the means to achieve development goals.

The said UN Declaration finds a position that the right to freedom of expression may be subject to certain restrictions, which are provided for by law and are necessary, for example, in order to prevent crimes and protect the fundamental rights of others, including children, but emphasize that any such restrictions must be balanced and comply with the norms and principles of international law regarding the right to freedom of expression.

According to paragraph 3 (a) of this Declaration, the forced blocking of entire websites, IP addresses, ports, network protocols or certain types of Internet resources (for example, social networks) is an extreme measure similar to banning newspapers or broadcasting, and It can only be justified if such actions comply with international standards, for example, in cases when it is necessary to protect children from sexual violence. However, neither during the blocking itself, nor during the court proceedings in the case, the Prosecutor General’s Office did not provide evidence that any materials posted on Navalny’s blog violate the requirements of Article 15.3.FZ “On Information”.

From the outset, Roskomnadzor stated that access to the blog is limited due to the fact that “the functioning of this web page violates the provisions of the court decision on the choice of a preventive measure to a citizen in relation to whom a criminal case has been initiated.”

Subsequently, the RKN refused this position, and the representatives of the prosecutor’s office in the courts themselves justified the decision to restrict access to the blog by saying that “a significant part of the materials posted on the websites contain calls for citizens to participate in mass (public) events held in prohibited places and without coordination with the executive and local authorities. From the photos and videos presented on the site, it was seen that during these events there was resistance to the legitimate demands of the police, public order was disturbed and public safety was threatened. ”

According to the statement of the authorized body that made the decision to restrict access to the site, a sufficient basis for making a decision was the “bias in assessing the actions of participants in unauthorized actions, due to which the site’s audience is convinced of the acceptability of the wrongful acts.”

This statement sounds, at least, strange, because according to Art. 15.3 of the Law. CALLS for taking actions specified in the Law are illegal. In Russian, an appeal is an appeal with a request, a request to take part in any business, in any activity. The semantic meaning of a word means a plea or request for someone else to act in the future. Thus, photographs and videos published on the site at the time of the decision of the General Prosecutor’s Office cannot fall under the concept of conscription, since narrated about events that happened in the past. Visual materials that were presented in the form of screenshots as evidence of the illegitimacy of the content were accompanied by journalistic notes expressing the authors ’subjective position on a number of events, but none of the disputed“ tendentious materials ”contained the announcement, illegal advertising or prompting to commit illegal actions, h participation in events held in violation of the law.

In order to prove their legitimacy, the representatives of the prosecutor's office in all the courts for some reason showed printskriny from the site vk.com. It is also noteworthy that the very conclusion about the presence in information materials of appeals to participate in mass (public) events held in violation of the established procedure, on the basis of which the Deputy Prosecutor General of the Russian Federation Malinkovsky V.V. It was subsequently decided to restrict access to the blog, made a senior prosecutor for the supervision of the implementation of laws on federal security, interethnic relations, countering extremism and terrorism I.V. Volkhov. The court did not take into account that the said person does not have independence, since is in a working relationship with the authority that made the decision, and also does not have the skills of an expert in the field of linguistics for the correct comprehensive study of blog pages in order to draw conclusions about the meaning of the text content of the disputed Internet page.

At the same time, the requirements of the General Prosecutor’s Office of the Russian Federation and the notification of Roskomnadzor did not contain specific page pointers (url) on the Internet, which allow identifying such information so that the authors of the blog navalny.livejournal.com could delete these pages themselves or moderate the content the entire information resource on the domain name and IP-address instead of a specific page.

According to the UN’s elaborated position, restrictions on the fundamental rights and freedoms of citizens can be implemented (1) by federal law and (2) only to the extent necessary (3) in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons ensuring the country's defense and state security (triple test).

In one of its rulings (in the “Handyside v. United Kingdom” case (p.49) regarding the right to freedom of speech, the European Court of Justice noted that “freedom of speech is one of the main pillars of a democratic society; subject to the requirements of Article 10 para. 2 it applies not only to “information” or “ideas” that are favorably perceived in society or considered harmless or not worthy of attention, but also to those who are shocking, insulting or worried s from the State or part of the population. At the same time, freedom of expression is subject to exceptions, which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see. the decision on the case , "the Observer and Guardian v. the United Kingdom" , p. 59 ).

In accordance with international law, the Prosecutor General’s Office of the Russian Federation and Roskomnadzor, blocking LJ Navalny, should assess compliance with the law and the proportionality of the measures taken, as well as provide convincing evidence of the need to block restricting the rights of the author of the blog and millions of readers. No such evidence was provided. A ban on the dissemination of information that does not violate the rights of others and does not represent a public danger cannot be considered as necessary in a democratic society.

The practice of the European Court of Human Rights and the recommendations of the United Nations were not taken into account when deciding, despite the fact that the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 21 of June 27, 2013 “On the application by courts of general jurisdiction of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and the Protocols to it ”has already explained that the legal positions of the European Court are taken into account when applying the legislation of the Russian Federation. In particular, the content of the rights and freedoms provided for by the legislation of the Russian Federation must be determined by taking into account the content of similar rights and freedoms disclosed by the European Court when applying the Convention and the Protocols thereto.

Alexey Navalny himself, with the help of Agora’s lawyers, last week also appealed against the decisions of the Russian courts to the ECHR, referring to the violation of his rights as an author to the free production, transfer and distribution of information.

Of course, we do not create illusions about the fact that the ECtHR will be able to influence prosecutors to comply with their own laws. Prosecutors demonstrate that in fact they do not need any special laws to restrict access to sites on the network. Yes, and taking into account the collapse of the Strasbourg Court by complaints from the Russians, this question may be appointed for a hearing not very soon. However, this is the last opportunity to protect the rights of users, who are obviously dissatisfied with the unreasonable censorship of online, in a legal manner. We very much hope for a positive decision of the international impartial court on both complaints. Otherwise, such blockages, without any explanation of the reasons, may become commonplace for the Russian authorities, which will lead to even tougher self-censorship of blog platforms and even more restriction of freedom of speech and expression in the Russian-language space of Runet.