SAVVA TERENTYEV v. RUSSIA JUDGMENT
25
public or influential figure (contrast, Osmani and Others v. the former
Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001,
and Féret, cited above, §§ 75 and 76), which fact could have attracted
public attention to his comment and thus have enhanced the potential impact
of the impugned statements. In such circumstances the Court considers that
the potential of the applicant’s comment to reach the public and thus to
influence its opinion was very limited.
82. Turning to the reasoning of the domestic courts, the Court observes
that they focused on the nature of the wording used by the applicant,
limiting their findings to the form and tenor of the speech. They did not try
to analyse the impugned statements in the context of the relevant discussion
and to find out which idea they sought to impart. Whilst holding that that
the applicant’s offence was particularly “blatant and dangerous for national
security” as running against “the fundamentals of the constitutional system
and State security”, the courts provided no explanation for the reasons for
that conclusion. They made no attempt to assess the potential of the
statements at hand to provoke any harmful consequences, with due regard to
the political and social background, against which they were made, and to
the scope of their reach. The Court thus finds that, in reaching their
conclusions, the domestic courts failed to take account of all facts and
relevant factors. Therefore the reasons cannot be regarded as “relevant and
sufficient” to justify the interference with the applicant’s freedom of
expression.
83. It further observes that the applicant was convicted in criminal
proceedings and given a suspended sentence of one year’s imprisonment.
The Court reiterates in this connection that a criminal conviction is a serious
sanction, having regard to the existence of other means of intervention and
rebuttal (see Perinçek, cited above, § 273). Moreover, although sentencing
is in principle a matter for the national courts, the imposition of a prison
sentence for an offence in the area of a debate on an issue of legitimate
public interest will be compatible with freedom of expression as guaranteed
by Article 10 of the Convention only in exceptional circumstances, notably
where other fundamental rights have been seriously impaired, as, for
example, in the case of hate speech or incitement to violence (see Otegi
Mondragon v. Spain, no. 2034/07, §§ 59-60, ECHR 2011); the Court has
already found (see paragraph 78 above) that the applicant’s text was not
likely to encourage violence.
84. The Court has noted in paragraph 66 above that it is the interplay
between the various factors rather than any of them taken in isolation that
leads it to a conclusion that a particular statement constitutes an expression
which cannot claim protection of Article 10. In the present case, although
the wording of the impugned statements was, indeed, offensive, insulting
and virulent (for which the applicant eventually apologised), they cannot be
seen as stirring up base emotions or embedded prejudices in an attempt to