Russian Federation

European Court of Human Rights: Ukraine v. Russia (re Crimea)

IRIS 2024-8:1/17

Dirk Voorhoof

Human Rights Centre, Ghent University and Legal Human Academy

In its judgment in the case of Ukraine v. Russia, the Grand Chamber of the European Court of Human Rights (ECtHR) highlighted the repression of freedom of expression and media freedom in Russia-occupied Crimea since 27 February 2014. The Court’s finding of systemic violations of Article 10 of the European Convention on Human Rights (ECHR) is part of other gross or large-scale violations by Russia of several provisions of the ECHR and its additional Protocols, including of Article 2 (right to life), Article 3 (prohibition of inhuman treatment), Article 5 (prohibition of unlawful deprivation of liberty), Article 9 (freedom of religion) and Article 11 (freedom of peaceful assembly and association).

The Ukrainian Government’s complaints under Article 10 ECHR concerned, in particular, the alleged existence of an administrative practice of suppression of non-Russian media, including the closure of Ukrainian and Tatar television stations. The Ukrainian Government submitted that since the annexation of Crimea by Russia, legal issues regarding freedom of speech, information policy and the provision of information and communication on the territory of “temporarily occupied regions” had been unlawfully regulated by legal instruments of the Russian Federation.

The complaint also included “intimidation and harassment of journalists perceived as critical of the Russian occupation” and violation of the rights of political prisoners. The Russian authorities maintained before the ECtHR that the allegations by the Ukrainian Government were unsubstantiated. They stated that the Crimean authorities had taken an active role in supporting the development of public broadcasting, allowing all citizens, irrespective of their national background, to actively participate in the decision-making process and receive information in their native language without any restrictions.

In its assessment, the ECtHR recaps the general principles established in its case law concerning pluralism in the audiovisual media (Centro Europa 7 S.r.l. and Di Stefano v. Italy, IRIS 2012-7/2  and NIT S.R.L. v. the Republic of Moldova, IRIS 2022-6:1/13). With regard to the general principles concerning the question on whether an interference is “necessary in a democratic society”, the ECtHR referred to its case-law, in particular to Animal Defenders International v. the United Kingdom (IRIS 2013-6/1) and Delfi AS v. Estonia (IRIS 2015-7/1). The ECtHR also referred to its admissibility decision in which it found that the incidents and conclusions noted by several IGOs and NGOs (e.g. the UN HRC Concluding Observations of 2015 and the 2014 Human Rights Watch Report) provided sufficient prima facie evidence of the administrative practices curtailing media freedom and journalists’ rights: in March 2014 all Ukrainian television channels were shut down and the only Ukrainian-language newspaper (Krymska) was banned from distribution. In addition, some Tatar-language media outlets were denied either re-registration or licences to operate in accordance with Russian Federation legislation and had to cease operations on the peninsula. Official “warnings” by officers of the Federal Security Service of the Russian Federation (FSB) and the Crimea prosecutor’s office often preceded the closing down of a media outlet on the basis that its views, articles or programmes were deemed “extremist”, for example, for the use of the terms “annexation”, and “temporary occupation”.

For that purpose, the authorities used Russia’s "vaguely worded and overly broad anti-extremism legislation" to pressure Crimean Tatar media outlets into ceasing criticism of Russia’s “occupation” of Crimea. The IGOs and NGOs also reported harassment and intimidation of journalists, while the ECtHR observed that the above information was concordant with the additional evidential material submitted to the Court. The Russian Government neither contested nor explained the significant decline from 3,000 to slightly over 200 operating media outlets in Crimea since the Russian occupation. The ECtHR further observed that the Russian Government did not engage with the credible allegations of systematic intimidation and harassment of journalists, a particular aspect of the alleged practice of suppressing non-Russian media.

The ECtHR considered that there was sufficient evidence to prove to the requisite standard that, during the period under consideration (between 27 February 2014 and 26 August 2015), there were numerous and interconnected instances sufficient, under the Court’s case law, to constitute an administrative practice of interference with the freedom of expression, such as refusal to grant broadcasting licences, revocation of broadcasting licences, failure to allocate broadcasting frequencies, warnings, cautions and orders by the Russian authorities under “anti-extremism” legislation,  prosecutions, pre-trial detention and convictions on these grounds. Based on the finding that the regulatory nature of the alleged practice, its scale and its general application confirmed the existence of both the “repetition of acts” and “official tolerance”, the ECtHR found that these interferences with the right to freedom of expression and information could not be regarded as provided by “law” in the meaning of the ECHR. The Russian Government did not make any submissions. It did not provide any evidence to address, let alone refute, the alleged lack of foreseeability of their anti-extremism legislation that had been used to suppress the freedom of expression in Crimea during the period under consideration.

Furthermore, the ECtHR noted that the Russian Government did not provide any documentary evidence regarding any of the relevant procedures, such as the licensing of media outlets and the allocation of frequencies. Owing to this failure, the Russian Government failed to establish that the interferences complained of were necessary within the meaning of Article 10 ECHR. In particular, as regards the sending of “warnings” to journalists, their prosecution and detention for actions allegedly aimed at violating the territorial integrity of the Russian Federation, the Russian Government failed to prove that the publication of views aimed at preserving the territorial integrity of Ukraine included any incitement to violence or advocated recourse to violent action. The creation of a public Crimean Tatar television channel, a radio company and a Crimean Tatar editorial office could not be considered to offset the general decline in the number of independent television stations serving the Crimean Tatar population of Crimea. Assuming that certain media outlets remained available online could not be regarded as a sufficient substitute for the availability of print media and standard television channels. Against this background, the ECtHR found unanimously that during the period under consideration, there existed an administrative practice of suppression of non-Russian media, including the closure of Ukrainian and Tatar television stations, which was not only unlawful, but also, in any event, not necessary in a democratic society. There has, therefore, been a violation of Article 10 ECHR.

In its 347-page judgment, the ECtHR also found a violation of Articles 10 and 11 ECHR because of an administrative practice of unlawful deprivation of liberty, prosecution and conviction of Ukrainian political prisoners for exercising their freedom of expression, and peaceful assembly and association. It also found that there has been a violation of Article 18 ECHR in conjunction with Articles 10 and 11 ECHR on account of an ongoing administrative practice of restricting Ukrainian political prisoners’ rights and freedoms in Crimea for an ulterior purpose not prescribed by the ECHR.