Behind bars for a “like”: the dissenting opinion of Judge Arkadii Bushchenko

Dissenting opinion of Judge Arkady Bushchenko to the decision of the Supreme Court Cassation Criminal panel of judges, 28 September 2023 in case No. 127/18004/22 (proceedings No. 51-3505км23)

Introduction

1. On 19 April 2023, the UNIAN agency reported in the “Russian World” section that in Russia, a pensioner was fined 40,000 rubles for “praising” the President of Ukraine. Earlier, on 22 December 2022, the same section reported that a Russian was fined 30,000 rubles for sharing a dream with Volodymyr Zelensky.

2. This could be perceived as a case study if it were not for the epidemic scale that such incidents have occurred in the Russian Federation, Belarus, and other states under the rule of authoritarian regimes.

3. The scale of the problem can be judged from the 174 statements against Russia transferred for communication by the European Court of Human Rights (ECHR) concerning punishments for discrediting the armed forces and spreading false information, also for military “fakes”, etc. with the question: “Was Article 10 of the Convention violated due to prosecuting the applicants for their expressive behavior?”

4. Or you can refer to the information in the report of the Special Rapporteur on the situation of human rights in the Russian Federation, Mariana Katsarova, in which it is mentioned that as of July 2023, at least 185 people were prosecuted under the Article, which punishes the dissemination of knowingly false information about the usage of the Russian Federation armed forces for the purpose of protecting the interests of the Russian Federation and its citizens, maintaining international peace and security, or about the activities of any Russian state bodies abroad.

4. The report mentions the sentencing to 8.5 years of imprisonment of opposition politician Ilya Yashin and Dmitry Ivanov, a university student and the founder of the Telegram channel “Protest TGU”; up to 7 years of imprisonment of independent municipal deputy Aleksey Horinov; and up to 6 years of journalist Maria Ponomarenko.

5. The report also accounts for the widespread use of the Criminal Code Articles 280.3 and 20.3.3 of the Code of Administrative Offenses, known as laws on “discrediting the armed forces” to suppress any anti-war sentiments or disagreement with the authorities’ official position regarding the war against Ukraine. As of August 2023, more than 7,683 cases were initiated under the administrative procedure and 110 cases under the Criminal Code. As the Special Rapporteur notes:

“These prohibitions are interpreted broadly and without any legal certainty. ... People were found guilty for displaying anti-war or pro-Ukrainian signs or clothing items; participating in anti-war demonstrations or “tacitly supporting” them, such as posting photos or comments, or “liking” anti-war messages on social networks; dissemination of information about the deaths of civilians, the destruction of civilian objects and statements about war crimes committed by the Russian army; expressing disagreement with the war in conversations; opposition to state-promoted pro-war symbols such as ‘Z’ and ‘V’; singing Ukrainian songs”. [1]

6. There is also the conclusion of the Working Group on Arbitrary Detention in the case of Horinov, who the Meshchansky District Court of Moscow sentenced to 7 years of imprisonment for

“in the presence of at least five people, he verbally reported, under the guise of reliable information, known false information about the use of the armed forces of the Russian Federation, namely:

about the conduct of aggressive military actions by the Russian Federation on the territory of another sovereign state, calling them not a special military operation but a war;

on sending the armed forces of the Russian Federation to the territory of Ukraine with the aim of seizing its territory, destroying its independence, and changing its political or social system;

about the daily death of children on the territory of Ukraine as a result of military operations by the Russian Federation;

that the actions of the armed forces of the Russian Federation on the territory of Ukraine, as one of the elements of the system of state power, are the actions of a ‘fascist state’”.

The Meshchansky District Court [of Moscow] decided that the content of these statements does not correspond to the content of the official position of the Russian Federation Ministry of Defense, and therefore they are false.

7. Of course, this practice in the Russian Federation gives rise to a feeling of extreme cruelty in the pursuit of any deviation from the official position of the Kremlin based on the arbitrary interpretation of already draconian laws.

8. It seems to me that precisely the abhorrence of such a state machinery, where only views that coincide entirely with the official ones are safe, where a homogeneous electoral mass replaces society, is one of the reasons why Ukraine chose a different path and took on the responsibility to adhere to the principles prevailing in the European communities.

9. That is why I cannot agree with the court’s decision, which upheld the conviction of a 70-year-old pensioner to 1 year in prison for “liking” a report about a Russian general.

The circumstances of the case

10. If we squeeze out the emotional vocabulary from the sentence, PERSON_14 was convicted under Part 2 of Article 436-2 of the Criminal Code for the fact that on 2 April 2022, on the “Odnoklassniki” [Classmates] social network, she liked a post containing two photos of the general and such text:

“Hero of the Russian Federation Kobylash Sergey Ivanovich

Long-range aviation commander since 16 September 2016. Lieutenant General (22 February 2017). Honored military pilot of the Russian Federation (2018). Participant of the First and Second Chechen Wars, the war in South Ossetia in 2008.

Head of the 4th State Center for Aviation Personnel Training and Military Testing of the Ministry of Defense of the Russian Federation (Lipetsk Aviation Center) (12 August 2015-29 September 2016). Chief of Aviation of the Air Force (2012-2015).

He was born on 1 April 1965 in Odessa. In 1987, he graduated from the V.M. Komarov Eyskoye Higher Military Aviation School of Pilots, after which he served in the positions of pilot, senior pilot, unit commander, deputy squadron commander, squadron commander, deputy regiment commander, regiment commander, base commander of the 1st category.

In 1994, he graduated from the Air Force Academy, named after Yu.A. Gagarin, and participated in combat operations on the Chechen Republic territory, completing several dozen combat missions.

In August 2008, he participated in the armed conflict on the territory of South Ossetia as the commander of the 368th Assault Aviation Regiment stationed in Budyonnovsk. He flew personally on combat missions. During one of the Georgian military convoy attacks south of Tskhinvali, a rocket from a portable anti-aircraft missile complex hit the left engine of its Su-25 SM, after which Colonel Kobylash took the damaged plane out of battle and returned it to its airfield. However, over the city’s southern outskirts, precisely the same type of rocket disabled the plane’s right engine, resulting in the attack aircraft losing traction. In emergency conditions, Colonel Kobylash did everything so that his combat vehicle did not crash into civilians and, risking his life, drove it as far as possible from the city. As a result, the plane fell and exploded in a deserted mountain gorge, and the pilot managed to eject at the last moment and landed in a Georgian enclave. After some time, the search and rescue team managed to find and evacuate him by helicopter. Colonel Kobylash’s attack aircraft was one of six Russian planes shot down during the operation to force Georgia to make peace.

By decree of the President of the Russian Federation dated 5 September 2008, Colonel Kobylash was awarded the title of Hero of the Russian Federation for his courage and heroism in performing military duty. On 23 December 2008, at a solemn ceremony in the Kremlin, he was awarded a personal distinction — the “Golden Star” medal.

After the end of the armed conflict, he continued his service in the Air Force. He served as the head of the operational-tactical and army aviation department of the Air Force Main Command and deputy chief of Air Force aviation.

In 2012, Colonel Kobylash graduated from the Military Academy of the General Staff of the Armed Forces of the Russian Federation.

On 23 February 2012, he participated in the meeting of the President of the Russian Federation, PERSON_15, with the creators of the film “August. Osmogo” and veterans of combat operations in South Ossetia. During the meeting, he gave the film a positive assessment, separately noting its veracity and collection of images...

By decree of the President of the Russian Federation dated 13 November 2013, he was appointed to the post of Chief of Aviation of the Air Force...

By decree of the President of the Russian Federation on 13 June 2014, the military rank of “major general” was assigned to him.

On 18 May 2017, he made his first flight on a Tu-160 aircraft.

On 12 August 2015, he was appointed the head of the 4th State Center for Aviation Personnel Training and Military Testing of the Ministry of Defense of the Russian Federation (Lipetsk Aviation Center).

On 16 September 2016, he was appointed commander of long-range aviation.

By decree of the President of the Russian Federation on 22 February 2017, the military rank of “Lieutenant General” was assigned to him.

In December 2018, Lieutenant General Kobylash participated in the transatlantic non-stop flight of two Tu-160 aircraft from the Russian Olenya Airfield to the Maiketiya Airfield of the Bolivarian Republic of Venezuela. The flight took place over the Atlantic Ocean, Norwegian, and Caribbean Seas at 10,000-11,000 meters altitudes. The flight time was 13 hours and 15 minutes, and the route length was 10,459 km.

He qualifies as a “sniper pilot” and has the honorary title of “Honored Military Pilot of the Russian Federation”. The total flight time is more than 1,600 hours. He has mastered the following types of aviation equipment: L-29, Su-7, Su-17 and its modifications, Su-25, Su-30SM, Su-34, An-26.

He married; daughter PERSON_16”.

Are there elements of criminal “glorification” in the actions of the convicted?

11. I have no doubt that one year behind bars for “liking” an unknown user under such a message is a highly disproportionate punishment. The sense of disproportionality in itself should have forced the court to take a more careful approach to this case and consider all its essential aspects.

12. We are dealing here with punishment for speech. Moreover, this case is not just about speech but also about “liking” another person’s speech.

13. Criminal prosecution for speech is always at the limit. It always tends to cross this limit, turning from a means of protecting essential public interest into a means of intimidation and tyranny.

14. Uncertainty is one of the tools of tyranny. A person in the atmosphere of a dictatorship should not have confidence within the limits of what is permissible and should understand that they can be punished for reading the wrong books, for not reading the right book, and for applauding the wrong speaker, or not applauding, when it was “correct” to applaud.

15. In a free society, only narrow categories of speech are subject to criminal laws. However, they require an extremely meticulous attitude since they constitute the most severe limitation of freedom of expression.

16. The criminal law and the practice of its application must comply, among other things, with the Convention on Human Rights and the Covenant on Civil and Political Rights, and the courts must interpret its provisions in such a way that the state will not be held responsible for violating international obligations. The interpretation of the provisions of the law on punishment for speech should be the narrowest.

17. I understand that freedom of expression can be limited, and times of war create many legitimate reasons for this. However, war does not erase everything. Moreover, war obliges courts to scrutinize state intentions, which often find support in public sentiment, and to extend restrictions further than the situation warrants.

18. Therefore, times of war do not turn restrictions on freedom of expression into a rule; it remains an exception to the rule, and accordingly, any measures, including punishments for expressing opinions, must be analyzed from the point of view of:

• Was such restriction based on law, including the requirement of availability and foreseeability;
• Had such restriction a legitimate purpose;
• Was the restriction proportionate to that legitimate aim?

19. I think the question of a legitimate goal does not arise here. In the preparatory documents of the Parliament to Article 436-2 of the Criminal Code and several other provisions, the goal of protecting the “national information space of Ukraine” is declared, which cannot but be considered justified in the conditions of a war against an aggressor.

20. Of course, the question may arise as to whether it was worth having 45 security militaries, including Security Service officers, and many support personnel pursuing for a long time a woman who “liked” the general. However, if the state believes that the security situation in the country allows such resources to be diverted, the criminal court is unlikely to interfere with such prioritization.

21. The question in this case is whether this criminal punishment was based on the law and whether it was proportionate.

22. The legality of the restriction in the context of Article 10 of the Convention here actually coincides with the question of the presence of the crime in the actions of the convicted person for which she was sentenced. Therefore, it is essential to analyze what the legislator understood when he added this component of the crime to the criminal legislation.

Who and what is forbidden to glorify?

23. The circle of such persons is defined by the title of Article 436-2 of the Criminal Code: “Justification, recognition as legitimate, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants.” Thus, the object of glorification is “participants of the armed aggression of the Russian Federation against Ukraine.” The text of the Article gives a more detailed definition of such “participants”, which include, among others, “representatives of the armed forces of the Russian Federation”, “who carried out the armed aggression of the Russian Federation against Ukraine”.

24. Determining the status of “participant” is closely related to the next element.

25. It is clear from the Article’s content that the subject of glorification is not any actions of the “participant” but only those related to the armed aggression of the Russian Federation against Ukraine. Approving actions and qualities, a deed or an achievement unrelated to these events are irrelevant from the point of view of this Article.

26. Thus, glorifying persons for actions related to aggression against Ukraine is prohibited since, quite clearly, such glorification is one of the means of justifying armed aggression.

The method of glorification?

27. A story with facts about a person cannot glorify him alone.

28. If someone perceives facts about a person as glorifying that person, this is a matter of interpretation by the recipient, for which the facts themselves and their communication bear no responsibility. If the facts give the recipient grounds for a favorable assessment, then glorification occurs in their mind but cannot be attributed to the one who reported such facts.

29. The announcement that PERSON_17 is the Minister of Defense or PERSON_11 is the President of the Russian Federation or that a particular person has the rank of general cannot be a method of glorification, as it is simply a statement of fact.

30. Even celebrating the enemy’s courage, cunning, and military skill is not always glorified. Only “sofa” experts are allowed to underestimate the enemy because a safe sofa in a safe place is securely protected by those for whom underestimating the enemy can cost them their lives.

31. Recognition of the enemy’s strengths is generally a condition for survival and victory. That is why the Commander-in-Chief of the Armed Forces of Ukraine, PERSON_9, praised the talent and professionalism of his counterpart, General PERSON_18, a prominent participant in the armed aggression against Ukraine. However, this comment can hardly be considered glorification.

32. Thus, to determine whether the message contains glorification, the courts must consider the entire context of the situation, including whether the message includes only facts or, with the help of specific methods for presenting information, such a message perpetuates and glorifies a participant in aggression.

Area of distribution

33. Article 436-2 prohibits the dissemination of “glorifying” messages to the audience, which is a component of the information space of Ukraine. This follows from the explanatory note to the relevant draft law, which aims to protect Ukraine’s “national information space”.

34. But even without this explanation, it is clear that the criminal legislation of Ukraine does not apply to statements circulating in the information space of another state, which is regulated by the respective state.

35. Here, we are not discussing the cross-border application of the Ukrainian criminal law. In this case, we are talking about the composition of the crime itself, the element of which is the focus on the information space of Ukraine.

Application to the circumstances of this case

36. Based on this interpretation of the components of glorification under Article 436-2 of the Criminal Code, I cannot see the elements of a crime in the actions of the convicted person.

37. Kobylash’s participation in the armed aggression against Ukraine is not mentioned in the message she “liked”. However, the biographical sketch’s hero is definitely a Russian Federation military man.

39. The objections may be that belonging to the Russian Federation’s armed forces already means participation in aggression against Ukraine.

40. However, I am not sure that such an interpretation corresponds to the text of the law, which limits its effect to the “glorification” of representatives of those armed formations of the Russian Federation that carried out armed aggression of the Russian Federation against Ukraine.

41. From the post, it is impossible to understand whether he was alive when the post was read. Considering the title of the column “Memory of the Fallen” and the fact that his biography ended in 2018, it is quite possible to perceive the message as an obituary, as some of the commentators actually perceived it.

42. The Court, in substantiating Kobylash’s participation in the aggression, referred to the fact that in Ukraine, he is “recognized as a war criminal in connection with his direct participation in the armed aggression of the Russian Federation against Ukraine. He personally carried out active actions for the destruction of the Ukrainian civilian population, the destruction of Ukrainian cities and villages, the destruction of the military and civilian infrastructure of our state."

43. However, the prosecution did not present any evidence that at the time of “liking” this message on 2 April 2022, the convict or any other person was reliably aware that he was or is a participant in armed aggression within the meaning of Article 436-2 CC.

44. Therefore, the court’s conclusion here is factually incorrect. Let’s ignore the fact that Kobylash is not recognized as a war criminal in Ukraine. Even if it is assumed that the court used the everyday meaning of the word “criminal”, bearing in mind that the participation of Kobylash in the war against Ukraine is generally known. However, even in this case, the court made a factual error.

45. On 2 April 2022, the convict put a fatal “like” on the biographical reference about Kobylash. However, for the first time, information about Kobylash’s participation in the war against Ukraine appeared on the website of the Main Directorate of Intelligence of the Ministry of Defense (GUR) on 20 April 2022. Similar information appeared on the Ukrainian-language Wikipedia and the “ Mirotvorets” [Peacemaker] website on the same day.

46. It would be incredible to assume that the convicted woman reliably knew about his involvement in criminal acts against Ukraine a few weeks earlier than the GUR or a few months before the SBU (Security Services), which only on 28 December 2022 found grounds to suspect Kobylash of this.

47. Thus, at the time of “liking” the post about Kobylash, PERSON_14 could know that he is a participant in the armed aggression of the Russian Federation against Ukraine within the meaning of article 436-2 of the Criminal Code neither from the post nor from another source.

48. Under such circumstances, discussing whether the message constitutes “glorification” by its nature does not make sense, as it does not relate to the circumstances relevant to applying Article 436‑2 of the Criminal Code.

49. But even if we forget about the absence of this element of the crime, the very nature of providing information cannot be considered as “glorification” within the meaning of Article 436-2 of the Criminal Code.

50. The courts did not analyze this aspect but relied only on the conclusion of the SBU linguist about the presence of “glorification” in the message.

51. However, “glorification” is not a linguistic term. It is a legal concept, the applicability of which to the case’s specific circumstances should be determined by the court, not by a linguist. Linguistic analysis of the text is insufficient to conclude about the presence or absence of “glorification” since such a conclusion depends not only on the choice and sequence of words and phrases but also on the context in which they are used.

52. For example, in this case, the expert believed that the message contains “glorification” because, among other things, it emphasizes:

• high-ranking positions, titles of the highest officer rank, and the highest state awards;
• military gains;
• personal qualities and professional achievements;
• awards and titles.

53. However, all this information is only a statement of facts, which cannot in itself constitute “glorification”. The same facts are contained in the report about Kobylash on the GUR website or on the website of the system patriots “Myrotvorets”, which mentions with slight variations that Kobylash:

— chief of the 4th State Center for Aviation Personnel Training and Military Tests of the Ministry of Defense of the Russian Federation, Chief of Aviation of the Air Force; commander of long-range aviation of the Air Force of the Armed Forces of the Russian Federation; Lieutenant General, Hero of the Russian Federation; a participant in the first and second Chechen wars, a participant in the war in Georgia (i.e., positions, ranks);

— pilot, senior pilot, unit commander; deputy squadron commander, squadron commander, deputy regiment commander; 1st rank air base commander (i.e., gains and formation).

54. Thus, these messages fully fall under the criteria defined by the linguist. The “Myrotvorets” site even liked and shared on its site the same photo that incriminated the convicted as an element of glorification.

55. Thus, I believe the post’s content also did not give grounds for applying Article 436-2 of the Criminal Code.

56. Even if we turn a blind eye to this, there are also no other crime elements. PERSON_14 is accused of distributing the mentioned message. As I have already mentioned, Article 436-2 of the Criminal Code protects the information space of Ukraine. At the same time, the prosecution persistently claimed that access to the social network “Odnoklassniki” [2] was blocked. That is, Internet users in Ukraine do not have the opportunity to use it. The prosecution also claimed that PERSON_14 reliably knew about this circumstance.

57. However, asserting the unavailability of this network for the Ukrainian audience, the prosecution did not provide any evidence that, despite this unavailability, the information “liked” by PERSON_14 got into the information space of Ukraine. If so, PERSON_14, knowing that the information from the network cannot get into the information space of Ukraine, took action to overcome this obstacle.

58. Therefore, the circumstances of the case do not give grounds for the conclusion that the information received at least minimal circulation in the information space of Ukraine.

59. If, contrary to a common interpretation, we assume that Article 436-2 of the Criminal Code also protects the information space of the Russian Federation, then it should have been convincingly shown that the “liking” of PERSON_14 was worthy competition with the central television channels or other media of the Russian Federation in justifying aggression against Ukraine.

60. Thus, I believe that the act for which PERSON_14 was convicted, although it may cause disapproval, does not form the crime stated by Article 436-2 of the Criminal Code.

Proportionality of Punishment

61. I have already said that I consider the punishment in this case to be grossly disproportionate.

62. It is possible to refer to the developed practice of the ECHR, which, in the context of Article 10 of the Convention, considered several cases related to punishment for unwanted statements. In many cases, although the ECHR recognized that the incriminated statements contained an apologia for terrorism and, therefore, there was an “urgent public need” to limit the applicant’s freedom of expression, it considered imprisonment a disproportionate measure. [3]

64. In the case of Glukhin, the ECHR found the administrative fine disproportionate, as the authorities did not show the necessary tolerance for the action, which did not cause any violation of public order. [4] In the Dickinson case, the ECHR noted that even the criminal prosecution of the applicant for a severe criminal offense was a disproportionate interference since, although it ended with a fine, it could make the applicant (and other people) numb and silent [5].

65. In the Melike case, the ECHR considered disproportionate, not even a criminal punishment, but the dismissal of a teacher of an educational institution for a “like” on Facebook. [6]

66. You can cite even more examples. However, this case is one in which justification does not strengthen but only weakens and rationalizes the apparent irrationality of the punishment.

67. Even if PERSON_14 mirrored the Moscow pensioner and “praised” PERSON_11 himself, sending 45 security officers to pursue her and sentencing her to prison is not acceptable.

Judge Arkadii Bushchenko

[1] CCPR/C/RUS/CO/8, paras. 28=29.

[2] The decision of the National Security and Defense Council of Ukraine dated 28 April 2017, “On the application of personal special economic and other restrictive measures (sanctions)”, put into effect by the Decree of the President of Ukraine No. 133 dated 15 May 2017 and extended based on the decision of the National Council of Security and Defense of Ukraine dated 14 May 2020, approved by Decree of the President of Ukraine dated 14 May 2020 No. 184

[3] Stomakhin v. Russia, no. 52273/07, §§ 127-132, 9 May 2018; Rouillan v. France, no. 28000/19, §§ 74-76, 23 June 2022

[4] Glukhin v. Russia, no. 11519/20, 4 July 2023

[5] Dickinson v. Turkey, no. 25200/11, 2 February 2021

[6] Melike v. Turkey, no. 35786/19, 15 June 2021