Users ask the ECHR to protect their rights to receive information

In a series of laws that provide more and more reasons for restricting access to sites, the most high-profile and widely debated was Federal Law No. 398-ФЗ , commonly known in RuNet as the “law on prosecutorial (instant) locks”, according to which the Prosecutor General’s got an exclusive right administratively block any sites on the Internet for posting "information containing calls for riots, extremist activities, participation in mass (public) events held violation of the established order "(st.15.3 №149-FZ" On Information ").

And the most odious case of applying the new law was the decision of the General Prosecutor's Office to block major online media and a blog in the Live Journal of the famous politician Alexei Navalny.

From that moment on, the decision of the Prosecutor General’s Office and the actions of Roskomnadzor were repeatedly the subject of proceedings in Russian courts. Grani.ru appealed the restriction of access to the site in the Tagansky District Court of Moscow. Kasparov.ru appealed the legality of the decision of state bodies in the Khamovnichesky District Court of Moscow. Alexey Navalny himself, the chairman of the Progress Party, appealed the blocking of his blog in the Lublin District Court of Moscow. An activist of the Pirate Party of Russia Pavel Rassudov and an activist of the Moscow Helsinki Group Vadim Karastelev appealed against the blocking of all resources in the Tverskoy District Court of Moscow.

Thus, the requirements on the illegality of decisions to terminate access of Russian Internet users to well-known network media were heard in at least 4 different courts of general jurisdiction, but in all cases, as was to be expected, the courts recognized the actions of prosecutors and officials as legitimate and denied the applicants complaints.

Despite the fact that most of those who read Navalny’s blog before restricting access to it by LJ himself could easily solve the blocking problem by using a VPN or proxy to bypass the blocking, and the Navalny’s team itself did everything to maximize the distribution of site mirrors, you must understand that technical means do not solve the problem of censorship in the Russian Internet. Censorship remains, even though users circumvented it.

Not many citizens appealed to the court for the protection of their violated rights, but among the users there were also those who were ready to go to the end in the struggle for their rights. The Gorbunov family from Anapa, having decided that such actions by state bodies violated their right to access information, found the strength to appeal against decisions to restrict access to a blog on which they regularly read about anti-corruption investigations of the Anti-Corruption Foundation, various resonant events of public life, as well as the personal position of a famous politician on significant socio-political events. As in all previous cases, the courts of all instances refused the Gorbunovs to satisfy the complaint and found the decision of the Deputy Prosecutor General of the Russian Federation illegal. After achieving justice in the Russian courts failed,RosKomSvobodu to obtain legal assistance in order to further appeal the decision of the Russian courts at the European Court of Human Rights.

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

The greatest indignation of users is thatrepresentatives of the prosecutor's office who supported the “Lugovoi law” themselves demonstrate a violation of the Federal Law “on information”, frivolously interpreting the letter of the law. At the same time, the Russian courts in their usual manner are ready to support even the most dubious decisions of law enforcement agencies, do not give a damn about the position of the UN and the judicial practice of the ECHR, which should undoubtedly be taken into account when deciding on restrictions on access to resources with a multimillion-dollar 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, indicating that the decision violated the right of users to freely receive information on Alexey Navalny’s blog about the Foundation’s anti-corruption investigations and the personal opinion of a well-known politician on significant socio-political issues.

The actions of law enforcement agencies and Russian courts contradict 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 of June 1, 2011.adopted by the UN, which emphasize the fundamental importance of free expression, including the principles of independence and diversity, both as a separate law and as an essential tool for protecting all other rights, as well as a fundamental element of democracy and a means to achieve development goals.

The United Nations Declaration finds a position that the right to freedom of expression may be subject to certain restrictions that are provided by law and are necessary, for example, to prevent crime and protect the fundamental rights of others, including children, but emphasizing that any such restrictions should be balanced and consistent with the norms and principles of international law regarding the right to freedom of expression.

According to clause a) of article 3 of this Declaration, the forced blocking of entire websites, IP addresses, ports, network protocols or certain types of Internet resources (for example, social networks) constitutes an extreme measure similar to banning newspapers or broadcasting, and may only be justified if such actions are in accordance with international standards, for example, in cases where 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 very beginning, 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 selection of a preventive measure against a citizen in respect of whom a criminal case has been instituted”.

Subsequently, the ILV refused this position, and the prosecutors themselves in the courts justified the decision to restrict access to the blog by saying that “a significant part of the materials posted on the websites contains calls for citizens to participate in mass (public) events held in prohibited places and without coordination with executive authorities and local self-government. From the photos and video materials presented on the website, it was seen that during these events the lawful requirements of the police are resisted, public order is violated and a public safety threat is created.

According to the authorized body that made the decision to restrict access to the site, a sufficient basis for making a decision was "biased assessment of the actions of participants in unauthorized actions, because of which the audience of sites is convinced of the acceptability of illegal acts."

Such a statement sounds, at least, strange, becauseaccording to Art. 15.3 of the Law, the CALLS for the implementation of the 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 the word means a prayer or a request for someone to take action in the future. Thus, photographs and videos published on the site at the time of the decision by the Prosecutor General’s Office cannot fall within the concept of conscription, as narrated about events that happened in the past.The visual materials, which were presented as screenshots as evidence of the illegality of the content, were accompanied by journalistic notes expressing the subjective position of the authors on a number of events, however, none of the disputed “biased materials” contained an announcement, illegal advertising or an incitement to commit illegal actions, in t .h. participation in events held in violation of the law.

In order to prove the legitimacy of their claims, representatives of the prosecutor's office in all courts for some reason showed printscreens from vk.com. It is also noteworthy that the very conclusion that there are calls for participation in mass (public) events in informational materials in violation of the established procedure, on the basis of which V.V. Malinkovsky, Deputy Prosecutor General of the Russian Federation it was subsequently decided to restrict access to the blog, made by the senior prosecutor for the supervision of the implementation of laws on federal security, interethnic relations, countering extremism and terrorism I.V. Volkhovskaya. The court did not take into account that this person does not have independence, because is in a working relationship with the authority that made the decision,

At the same time, the requirements of the Prosecutor General’s Office of the Russian Federation and the notification of Roskomnadzor did not contain specific page indexes (url) on the Internet that could identify such information so that the authors of the blog navalny.livejournal.com could delete these pages on their own or moderate the content, and telecom operators did not have to block the entire information resource by domain name and IP address instead of a specific page.

According to the UN position developed, restrictions on fundamental rights and freedoms of citizens can be implemented (1) by federal law and (2) only to the extent that it is necessary (3) in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of others persons ensuring national defense and state security (triple test).

In one of its judgments (in the Handyside v. United Kingdom case (para. 49)) regarding the right to freedom of speech, the European Court 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 to be harmless or not worthy of attention, but also to those that shock, offend, or cause concern 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 caseObserver and Guardian v. United Kingdom , paragraph 59).

In accordance with international law, the Prosecutor General’s Office of the Russian Federation and Roskomnadzor, blocking LJ Navalny, had to assess compliance with the law and the proportionality of the measures taken, as well as provide convincing evidence of the need for blocking, restricting the rights of the author of the blog and millions of readers. No such evidence was provided. And the prohibition of the dissemination of information that does not violate the rights of others and does not constitute 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 UN were not taken into account when making the decision, 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 the courts of general jurisdiction of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and the Protocols thereto ”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 should be determined taking into account the content of similar rights and freedoms disclosed by the European Court when applying the Convention and its Protocols.

Alexey Navalny himself, with the help of Agora lawyers, also appealed against the decision last week.I am a Russian court at the ECHR, referring to a violation of his rights as an author on the free production, transmission and dissemination of information.

Of course, we are not building illusions that the ECHR will be able to influence prosecutors to comply with its own laws. Prosecutors are demonstrating that in fact they do not need any special laws to restrict access to sites on the network. And taking into account the overwhelming Strasbourg court with complaints from the Russians, this issue may not be scheduled for hearing very soon. However, this is the last opportunity to protect the rights of users, obviously dissatisfied with unjustified online censorship, legally. We look forward to a positive decision by the international impartial court in both complaints. Otherwise, such locks without any explanation may become commonplace. for the Russian authorities, which will lead to even more stringent self-censorship of blog platforms and even more restriction of freedom of speech and expression in the Russian-speaking space of Runet.