Kasymakhunov and Saybatalov v Russia
Case No. 26261/05 and 26377/06
Judgment date: 14 March 2013
The applicants are Yusup Kasymakhunov, an Uzbek national, and Marat Saybatalov, a Russian national. They were both convicted by the Russian courts in November 2004 and October 2005 respectively for their membership of the radical Islamic organisation Hizb ut-Tahrir al-Islami. They were sentenced to seven years and four months’ and five years and six months’ imprisonment respectively.
The first applicant was convicted of aiding and abetting terrorism, and founding a criminal organisation (under Articles 205.1, as in force at the time, and 210 of the Russian Criminal Code (CC)), following the discovery of Hizb ut-Tahrir literature at his home. The second applicant was found guilty under Article 205.1 CC, and also under Article 282.2 CC, for founding and being a member of an extremist organisation which had been banned by a judicial decision. The convictions were pronounced after a judgment by the Russian Supreme Court during a closed trial on 14 February 2003 which banned a number of organisations, including Hizb ut-Tahrir, and declared them to be illegal and of a terrorist nature. The Supreme Court’s judgment was not published at the time and a list of banned organisations was only officially released in 2006.
The Court found that the first applicant’s convictions were not entirely determined by the 2003 Supreme Court’s judgment. The constitutive elements of the terrorism-related crimes were defined with reference to the relevant legislation, including the Anti-Terrorism Act, and as such were sufficiently accessible and foreseeable. However, Supreme Court judgment was found to be a direct factor in the second applicant’s conviction under Article 282.2 C, as required by the provision itself. Since the court order was not made public until after the second applicant’s conviction, he could not have foreseen that his membership of Hizb ut-Tahrir would make him criminally liable under Article 282.2 CC and therefore there was a violation of Article 7.
With respect to the complaints under Articles 9-11, the Court considered the activities of Hizb ut-Tahrir to be contrary to the spirit and values of the Convention under Article 17, and therefore held that Articles 9-11 could not be invoked. In particular, the Court referred to its anti-Semitic and pro-violence statements, its rejection of democratic process as a means of coming to power, and its proposals to introduce plurality of legal systems and Sharia law. It also held that leaflets seized at the applicants’ homes contained statements inciting violence.
This is the first judgment concerning trials of Hizb ut-Tahrir members in Russia. It effectively puts an end to any further Hizb ut-Tahrir related European Court litigation, except for those convicted for actions committed prior to August 2006, or if there are other issues related to criminal justice in Russia in general.