Opinion; Subjects: RUSSIAN FEDERATION, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.23-04104 (E) 170323 200323
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-fifth session, 14–18 November 2022
Opinion No. 78/2022 concerning Alexey Gorinov (Russian Federation)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work, 1 on 27 July 2022 the Working Group
transmitted to the Government of the Russian Federation a communication concerning
Alexey Gorinov. The Government replied to the communication on 23 September 2022. The
State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV)
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
* In accordance with paragraph 5 of the methods of work of the Working Group, Ganna Yudkivska did
not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/78
General Assembly
Distr.: General
20 March 2023
Original: English
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Submissions
Communication from the source
4.
Alexey Gorinov is a Russian national, born on 26 July 1961. He usually resides in
Moscow and he is currently being held in detention in Moscow.
5.
According to the source, Mr. Gorinov is an independent member of Krasnoselsky
Municipal Council in Moscow. He is also a human rights defender and active member of
Russian civil society who has given many lectures on political and civil rights matters
concerning, inter alia, how to behave during detention and how to observe elections. Mr.
Gorinov has participated in the organization of elections as member of the territorial election
commission and as an election observer. The source adds that Mr. Gorinov received the
“Defender of Free Elections” medal and collaborated with “Golos”, the biggest association
of Russian citizens for the independent observation of elections. He was also an organizer of
many peaceful assemblies throughout the years, including the March of Millions on 15
September 2012; the March of Truth on 13 April 2014; the all-Russian peace march on 21
September 2014; and several marches in memory of Boris Nemtsov. 2 Mr. Gorinov’s
activities as a human rights defender reportedly also included defending people detained at
rallies at police stations and courts for more than 15 years.
Context
6.
The source alleges that since the invasion of Ukraine on 24 February 2022, the
Russian Federation has widely used both established and new repressive mechanisms to
combat anti-war dissent. It notes that, as of 11 July 2022, more than 16,300 people have
reportedly been detained for peaceful anti-war protests in more than 100 Russian cities and
that 182 criminal cases have been initiated against people expressing anti-war opinions in
various forums.
7.
Moreover, the Russian authorities have allegedly blocked more than 5,300 websites,
including all independent media outlets reporting on the war. Moreover, the Federal Service
for Supervision of Communications, Information Technology and Mass Media,
Roskomnadzor, has informed media outlets that only official information about the armed
conflict in Ukraine is to be reported and has imposed a rule that the media must delete any
mentions of the words “war” or “invasion” instead of “a special military operation” in
publications. In addition, Roskomnadzor has threatened to block media outlets providing
reports on the shelling of cities or that claim Russian personnel losses and to fine them up to
$78,200.
8.
The source also alleges that several repressive laws have rapidly come into force,
including the newly established article 207.3 of the Russian Criminal Code, which has made
“public dissemination under the guise of reliable reports of deliberately false information
containing data on the use of the armed forces of the Russian Federation” or the activities of
government authorities outside the Russian Federation punishable by a fine or by corrective
labour for a term of up to 15 years in prison and is being used to prosecute anti-war speeches.3
2 Opposition politician murdered in 2015.
3 Article 207.3 of the Criminal Code of the Russian Federation:
1. Public dissemination under the guise of reliable reports of deliberately false information
containing data on the use of the armed forces of the Russian Federation in order to protect the
interests of the Russian Federation and its citizens, maintaining international peace and security, as
well as containing data on the exercise by State bodies of the Russian Federation of their powers
outside territory of the Russian Federation for the said purposes, shall be punishable by a fine in the
amount of 700,000 to 1,500,000 roubles, or in the amount of the wage or salary, or any other income
of the convicted person for a period of one year to 18 months, or by corrective labour for a term of up
to one year, or by compulsory labour for a term of up to three years, or by deprivation of liberty for
the same period.
2. The same act committed:
(a) By a person using his official position;
(b) A group of persons, a group of persons by prior agreement or an organized group;
(c) With the artificial creation of evidence for the prosecution;
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The source notes that article 207.3 was introduced on 4 March 2022 and expanded on 25
March 2022 to specifically target those who publicly criticize the Russian Government and
armed forces in connection with the war in Ukraine. The source also notes that emerging law
enforcement practice clearly demonstrates that the term “unreliable information” includes
any information that is not identical to the official position of Russian authorities. Allegedly,
these new laws have thus essentially established censorship.
9.
In this respect, the source refers to a cross-regional joint statement on human rights
and fundamental freedoms in the Russian Federation delivered on 21 March 2022 on behalf
of a group of over 50 States during the forty-ninth session of the Human Rights Council,
expressing “great alarm at recently adopted Russian legislation that would punish those who
contradict the Russian Government’s false narratives about its war against Ukraine with up
to 15 years imprisonment” and concerns about the “attempts made by Russian authorities to
silence all critical voices, including those of Russian citizens protesting Russia’s invasion of
Ukraine”. 4 The source also refers to a joint statement on the invasion by the Russian
Federation and importance of freedom of expression issued on 4 May 2022.5
Arrest, detention and trial
10.
The source reports that on 26 April 2022, the apartment of Mr. Gorinov and the
premises of the Council of Deputies of the Krasnoselsky District were searched on the basis
of a warrant by employees of the Main Investigation Department of the Investigative
Committee of the Russian Federation for Moscow. After the search ended, Mr. Gorinov was
arrested on the basis of a warrant issued by the Main Investigation Department. The legal
basis for the search and arrest were article 182 of the Criminal Procedure Code (Grounds and
procedure for conducting a search) and article 91 of the Criminal Procedure Code (Grounds
for the arrest of the suspect). Mr. Gorinov was subsequently taken from his apartment to the
Investigative Committee for interrogation.
11.
On the following day, 27 April 2022, the Presnensky District Court in Moscow, upon
the request of the Investigative Committee, reportedly imposed on Mr. Gorinov a measure of
restraint in the form of detention until 25 June 2022 (two months).
12.
According to the source, on 1 May 2022, Mr. Gorinov received a final indictment
order and a notice of completion of investigative actions, meaning that the investigation of
his case took exactly six days. The indictment order was issued by the investigator of major
cases of the Main Office of the Investigative Committee of the Russian Federation in
Moscow.
13.
On 1 June 2022, the Meshchansky District Court extended Mr. Gorinov’s detention
until 19 November 2022, (for six months) on grounds that “if the measure of restraint is
changed for the accused, he may hide or put pressure on witnesses”. In addition, the court
(d) For selfish motives;
(e) For reasons of political, ideological, racial, national or religious hatred or enmity, for reasons
of hatred or enmity towards any social group, shall be punishable by a fine in the amount of three
million to five million roubles, or in the amount of the wage or salary, or any other income of the
convicted person for a period of three to five years, or by compulsory labour for a term of up to five
years, with deprivation of the right to hold certain positions or engage in certain activities for a term
of up to five years, or imprisonment for a term of five to ten years, with deprivation of the right to
hold certain positions or engage in certain activities for a term of up to five years.
3.
The acts provided for by the first and second parts of this article, if they caused grave
consequences, shall be punishable by deprivation of liberty for a term of ten to fifteen years, with
deprivation of the right to hold certain positions or engage in certain activities for a term of up to five
years.
4 Joint statement on human rights and fundamental freedoms in the Russian Federation, delivered by
the Permanent Representative of Poland on behalf of a group of over 50 States, at the forty-ninth
session Human Rights Council, 21 March 2022.
5 Joint statement on Russia’s invasion and importance of freedom of expression and information,
delivered by freedom of expression mandate holders from the United Nations, the African
Commission of Human Rights, the Inter-American Commission for Human Rights and the
Representative on Freedom of the Media of the Organization for Security and Cooperation in Europe,
Geneva, 4 May 2022.
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reportedly ignored Mr. Gorinov’s defence that he was not going to hide from the
investigation.
14.
On 8 July 2022, the Meshchansky District Court of Moscow reportedly found Mr.
Gorinov guilty, under article 207.3 of the Criminal Code, 6 of publicly disseminating
deliberately false information, under the guise of reliable reports, containing data on the use
of the armed forces of the Russian Federation in order to protect the interests of the Russian
Federation and its citizens, maintain international peace and security, by a person using his
official position, by a group of persons by prior agreement, by the motives of political hatred,
actions qualified as a crime under paragraphs “(a), (b) and (d)” of paragraph 2 of article 207.3
of the Criminal Code. The District Court imposed a sentence of imprisonment for a period of
seven years, to be served in a correctional colony of general regime, along with the
deprivation of the right to hold positions in State bodies, local self-government bodies and
State and municipal institutions related to the exercise of managerial functions, including the
performance of organizational and administrative and economic powers, for a period of four
years.
Internal steps, including domestic remedies
15.
The source reports that during the court sessions, the court did not take into account
any arguments of the defence, including Mr. Gorinov’s state of health or the conditions of
his detention.
16.
According to the source, the defence has appealed to the Federal Penitentiary Service,
but no measures have yet been taken on the appeal. Mr. Gorinov’s attorney reportedly
received a response on 8 June 2022, in which the Federal Penitentiary Service claimed that
sufficient medical care is being provided to Mr. Gorinov and that the conditions of his
detention are satisfactory.
17.
On 27 May 2022, the source reports that an appeal was sent to the Commissioner for
Human Rights of the Russian Federation, whose main task is to help individuals in protecting
their guaranteed rights and freedoms. However, no response to the complaint was received.
On 27 May 2022, an appeal was also sent to the Presidential Council for the Development of
Civil Society and Human Rights, a consultative body established under the President of the
Russian Federation to assist the head of State in exercising his constitutional powers in
ensuring and protecting human and civil rights and freedoms, informing him about the state
of affairs in this area and promoting the development of civil society institutions. However,
no response has been received. In addition, on 23 June 2022, a joint appeal of 60 deputies
was sent to the Prosecutor’s Office of the city of Moscow, the Commissioner for Human
Rights of the Russian Federation and the Commissioner for Human Rights in the city of
Moscow, but no replies have been received.
Analysis of violations
18.
The source submits that the arrest and detention of Mr. Gorinov is arbitrary under
categories II and III as established by the Working Group.
i.
Violation of the right to freedom of expression (category II)
19.
The source submits that the deprivation of liberty of Mr. Gorinov is the result of his
peaceful exercise of the right to freedom of expression. The source thus asserts that the
Russian Federation has violated article 19 of the International Covenant on Civil and Political
Rights and article 19 of the Universal Declaration of Human Rights by depriving Mr. Gorinov
of his liberty as the result of his peaceful exercise of the right to freedom of expression. It
has also violated his rights under the above articles by imposing an arbitrary limitation to his
freedom using a legal basis in Russian domestic law that grants officials unfettered discretion
to criminalize speech about the war, which is neither absolutely necessary nor proportionate,
and with no grounds that can justify silencing the peaceful expression of Mr. Gorinov about
the war in Ukraine.
6 See footnote 3 above.
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Deprivation of liberty is the result of peaceful exercise of right to freedom of expression
20.
The source refers to the case law of the Working Group, whereby article 19 of the
Covenant and article 19 of the Universal Declaration of Human Rights extend to ideas that
offend or disturb the State and “protect peaceful political discourse and commentary on
public affairs via the Internet, including the expression of ideas that may be regarded as
offensive”7 and concern the very core of political rights in a free and democratic society.8
21.
The source notes that in the case at hand, Mr. Gorinov was arrested, prosecuted,
sentenced and is currently being detained to punish him for publicly expressing his opinion
on the war in Ukraine.
22.
According to the source, the following actions are alleged against Mr. Gorinov:
“On 15 March 2022, from 1800 to 2100 hours, while on the premises of the Krasnoselsky
Municipal Council in Moscow [ … ], acting intentionally, realizing the illegal nature and
public danger of their actions, foreseeing the inevitability of the onset of socially
dangerous consequences in the form of undermining the authority and discrediting the
current state power and the armed forces of the Russian Federation, as well as the fact
that by their actions they will mislead an unlimited circle of persons regarding the
legality of the actions of the armed forces of the Russian Federation during a special
military operation, creating the appearance of illegal, violating international law,
activities of both the armed forces of the Russian Federation individually and the State
authorities of the Russian Federation as a whole, will cause citizens feelings of anxiety,
fear, unease and unprotectedness on the part of the State, guided by the motive of
political hatred, expressed in a dismissive, unfriendly, hostile and aggressive attitude
towards the current executive and legislative authorities of the Russian Federation, in the
presence of at least five persons who witnessed this event, verbally conveyed to those
persons, under the guise of reliable information, knowingly false information on the use
of the armed forces of the Russian Federation [ … ], namely:
• On the conduct of military aggressive actions by the Russian Federation on the
territory of another sovereign State, calling them not a special military operation, but
a war;
• About the direction of the armed forces of the Russian Federation to the territory of
Ukraine in order to seize its territory, eliminate its independence and change its
political or social system;
• About the daily deaths of children on the territory of Ukraine as a result of the conduct
of military operations by the Russian Federation;
• That the actions of the armed forces of the Russian Federation on the territory of
Ukraine, as an element of the system of state power, are the actions of the ‘fascist
State’…
At the same time, the content of the revealed statements of A.A. Gorinov and his
accomplice about the facts [ … ] does not correspond to the content of the official
position of the Ministry of Defence of the Russian Federation set out in official briefings
on 02/24/2022 and 02/26/2022. The statements of A.A. Gorinov and his accomplice
negatively characterize the actions of the armed forces of the Russian Federation carried
out on the territory of Ukraine. In the statements of A.A. Gorinov there are linguistic and
psychological signs of justification of the need to counter the use of the armed forces of
the Russian Federation on the territory of Ukraine.”
23.
The source adds that Mr. Gorinov is more specifically blamed for making the
following statements:
“I believe that all the efforts of civil society should be aimed only at stopping the war
and withdrawing Russian troops from the territory of Ukraine; to stop the war, withdraw
the troops from the territory of a neighbouring State, suspend aggressive actions;”
7 Opinion No. 44/2016, para. 29.
8 Opinion No. 13/2011, para. 9.
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“Children die every day, for information I will say that about 100 children died in
Ukraine, children become orphans;”
“When military operations are conducted on the territory of a neighbouring sovereign
State, our country carries out aggression;”
“I think this is the main issue now of the entire civil society – stop the war, withdraw
troops from the territory of a neighbouring State, suspend aggressive actions.”
24.
The source asserts that the speech of Mr. Gorinov is manifestly peaceful in its nature
and cannot be characterized as advocating violence. The source adds that the context, the
crime with which Mr. Gorinov was charged and the conduct of the subsequent trial clearly
evidence a reprisal for expressing a peaceful political opinion and speech related to human
rights, which therefore must receive heightened scrutiny and standards of review.9
25.
The source therefore submits that the deprivation of liberty of Mr. Gorinov is the sole
result of his peaceful exercise of his right to freedom of expression.
Arbitrary limitation to right to freedom of expression
26.
According to the source, the jurisprudence of the Working Group establishes that
although speech may be limited, according to article 19 (3) of the Covenant and article 29
(2) of the Universal Declaration of Human Rights, the sole fact that it may be criminalized
under domestic law does not deprive individuals of their right to freedom of speech under
international law.10 The source refers in particular to the Working Group’s deliberation No.
8 on deprivation of liberty linked to/resulting from the use of the Internet.11
27.
The source notes that the decision of the Meshchansky District Court of Moscow of 8
July 2022 considered that:
“It is necessary to note that article 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, along with the proclamation of the right of
everyone to freely express their opinion, proceeds from the fact that the exercise of
such freedom imposes duties and responsibilities and may be associated with certain
formalities, conditions, restrictions or sanctions that are provided for in the law and
are necessary in a democratic society in order to protect health and morals. The
proclaimed right to freely adhere to one’s beliefs and the right to freedom of
expression, including freedom to seek, receive and disseminate all kinds of
information and ideas by any means and regardless of State borders, simultaneously
correspond to the standards enshrined in international legal acts establishing that the
exercise of these rights and freedoms may be restricted, in particular, in the interests
of security or public order, the prevention of riots or crimes [articles 18, 19 and article
29 (2) of the Universal Declaration of Human Rights, article 19 of the Covenant and
articles 9 and 10 of the Convention for the Protection of Human Rights and
Fundamental Freedoms], therefore, the arguments of the defence about the absence of
the defendant’s actions the elements of the crime incriminated to him, about the
realization by A.A. Gorinov of the right to express his opinion, are unfounded.”
28.
The source asserts, however, that the fact that the exercise of the right to freedom of
expression may be restricted cannot grant the Russian Federation unfettered discretion to
criminalize the peaceful exercise of the right to freedom of expression. The source adds that
such restriction must indeed be necessary and proportionate, which is not the case at hand,
and there are no grounds that can justify silencing the peaceful expression of Mr. Gorinov
about the war in Ukraine.
a.
Legal basis in domestic law grants unfettered discretion to criminalize peaceful exercise of
right to freedom of expression
29.
The source refers to the jurisprudence of the Working Group, which establishes that
an offense shall not be too vague, too broad and too imprecise to grant officials unfettered
9 See opinions No. 64/2011, para. 20, and No. 19/2015, para. 18.
10 Opinion No. 39/2015, para. 22.
11 Deliberation No. 8 (E/CN.4/2006/7), para. 43.
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discretion to criminalize the peaceful exercise of the right to freedom of expression.12 The
source notes that such vague criminal offenses include that of “enemy propaganda”13 and
“broadcasting false or exaggerated news which would affect the morale of the country”.14
30.
In the case at hand, Mr. Gorinov was reportedly found “guilty of committing a public
dissemination under the guise of reliable reports of deliberately false information containing
data on the use of the armed forces of the Russian Federation […] by the motives of political
hatred, actions qualified as a crime under paragraph ‘(a)’, ‘(b)’ and ‘(d)’ of paragraph 2 of
article 207.3 of the Criminal Code of the Russian Federation”.15
31.
The source asserts that article 207.3 of the Criminal Code contradicts both the Russian
Constitution (namely article 13 concerning recognition of ideological and political diversity,
article 28 concerning freedom to choose, hold and disseminate one’s beliefs and act in
accordance with them, article 29 concerning freedom of thought and speech, prohibition of
compulsion to renounce one’s beliefs and prohibition of censorship, and article 54 concerning
prohibition of arbitrary criminal prosecution) and the international obligations of the Russian
Federation.
32.
Moreover, the source submits that the broad, vague and imprecise wording of criminal
article 207.3 does not make it possible to determine in advance which statements are
legitimate and which are prohibited, even more since it was adopted only a few days before
Mr. Gorinov’s speech and was solely intended to silence speeches on the war.
33.
The source thus submits that the criminal provision at hand is manifestly being used
to target persons engaged in peaceful critical expression, falls short of international standards,
aims to suppress debate on public interests concerning the war in Ukraine and creates a
chilling effect on freedom of expression.
b.
The restriction imposed is neither necessary nor proportionate
34.
The source refers to the jurisprudence of the Working Group, whereby the necessity
requirement is a strict standard meaning that restrictions must be “absolutely necessary in a
democratic society”.16 Hence, the source notes that if the legitimate purpose of the State can
be achieved through different means that do not violate freedom of expression, the necessity
test cannot be met. A detention must be a proportionate response to the threat posed by the
expression in question, taking into consideration both the form of the expression, the means
of its dissemination, but also the alleged threat posed by it in the light of the powers of the
State.17
35.
The source submits that regarding the purpose of Mr. Gorinov’s speech, its content,
its context, its intent and its veracity, the Russian Federation has manifestly not struck the
appropriate balance.
c.
No ground can justify silencing the peaceful expression about the war in Ukraine
36.
According to the source, the Working Group in its jurisprudence consistently finds
that States cannot rely pretextually on the enumerated grounds in article 19 (3) of the
Covenant and article 29 (2) of the Universal Declaration of Human Rights and that States
must show in a specific and individualized fashion the nature of the threat posed by the speech
in question and a direct and immediate connection between this threat and the expression in
question.18
37.
The source also refers to the Working Group’s deliberation No. 8 on deprivation of
liberty linked to/resulting from the use of the Internet, whereby a vague and general reference
to the interests of national security or public order, without being properly explained and
12 Opinion No. 38/2015, para. 73.
13 Opinion No. 1/1998, para. 13 (a).
14 Opinion No. 10/2008, para. 25.
15 See footnote 3 above.
16 Opinion No. 15/2004, para. 14.
17 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on
Civil and Political Rights, principle 10 (d), see also opinion No. 24/2008, para. 22
18 Human Rights Committee, general comment No. 34 (2011), para. 35, quoted in opinion No. 23/2011,
para. 24.
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documented, is insufficient to convince the Working Group that the restrictions on the
freedom of expression by way of deprivation of liberty are necessary.19 The jurisprudence of
the Working Group consistently establishes that peaceful political and social discourse
cannot be restricted on the basis that it represents a threat to national security,20 and that the
right to freedom of expression cannot be restricted merely to muzzle advocacy of democratic
tenets or human rights.21 As with the national security limitation, limitations on free speech
cannot be justified by merely referencing disturbances to public order. The documentation
must show that the restriction is necessary to preserve the interest of maintaining public
order,22 detention as a response to peaceful expression being invalid.23 Finally, the source
notes that the Working Group has consistently stated that government institutions such as the
military are not immune from criticism and found on multiple occasions detentions to be
arbitrary when they serve as punishment for criticizing24 or demoralizing the military.25
38.
The source therefore submits that the right to freedom of expression, guaranteed by
article 19 (2) of the Covenant and article 19 of the Universal Declaration of Human Rights,
has been violated by the arrest, detention and criminal prosecution of Mr. Gorinov by the
Russian Federation, rendering his deprivation of liberty arbitrary.
ii.
Violation of the right to participate in public affairs (category II)
39.
With reference to article 25 of the Covenant and article 21 of the Universal
Declaration of Human Rights, the source notes that according to the Human Rights
Committee, article 25 protects the right to freedom to engage in political activity, but also
criticism of the Government, expression containing political content and engaging in
meetings or debates concerning political affairs.26
40.
The source recalls that, on 8 July 2022, the Meshchansky District Court of Moscow
found Mr. Gorinov guilty of committing a public dissemination under the guise of reliable
reports of deliberately false information “using his official position” during the Council of
the Krasnoselsky Municipal District of Moscow and deprived him of his “right to hold
positions in State bodies, local self-government bodies, State and municipal institutions
related to the exercise of managerial functions, the performance of organizational and
administrative and economic powers for a period of four years”. The court confirmed the
qualifying attribute of “using his official position” (subsection 2 (a) of article 207.3) and
noted that the documents submitted revealed that Mr. Gorinov had “exercised the powers of
an elected official of local government and performed the functions of a representative of the
authorities, and used his position to commit the specified crime”.
41.
The source notes that Mr. Gorinov, as a member of Krasnoselsky Municipal Council
in Moscow (“municipal deputy”), benefits from immunity, which under the Russian law
follows from the content of part 1 of article 40 of the Federal Law on the general principles
of organization of local self-government and guarantees the municipal deputy “unhindered
exercise of powers”, implying that a municipal deputy cannot be held liable for political
statements.
42.
The source thus submits that, with regard to the political purpose of Mr. Gorinov’s
speech, its content advertising for peace, its context at the meeting of the Krasnoselsky
Municipal Council in Moscow and the fact that it was delivered in his capacity as an
independent member of the said Council, the Russian Federation has manifestly violated Mr.
Gorinov’s right to participate to public affairs by arresting and detaining him for the said
speech and depriving him of his right to hold positions in State bodies, local self-government
bodies, State and municipal institutions related to the exercise of managerial functions and
19 E/CN.4/2006/7, para. 43, and opinions No. 4/2005, para. 13, and No. 48/2011, para. 21.
20 See opinion No. 50/2015, para. 22.
21 Opinion No. 9/2015, para. 26.
22 Opinion No. 23/2011, para. 25.
23 Opinions No. 20/1996, para. 7, and No. 25/2011, para. 29.
24 Opinions No. 50/2011, No. 53/1992 and No. 28/1998.
25 Opinion No. 3/1994.
26 Aduayom, et al. v. Togo (CCPR/C/57/D/422 to 424/1990), 29 July 1996; see also Human Rights
Committee, general comment No. 25 (1996), para. 8.
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the performance of organizational and administrative and economic powers for a period of
four years.
iii.
Violation of the general rule against pretrial detention (category III)
43.
The source refers to Human Rights Committee general comment No. 35 (2014), in
which the Committee noted that article 9 (3) of the Covenant requires an individualized
determination that it is reasonable and necessary, taking into account all the circumstances
and whether less restrictive measures are available to ensure a criminal defendant’s
appearance at trial.27 The source notes that the Working Group’s practice is aligned with the
Committee’s rules limiting pretrial detention, as reiterated several times, that pretrial
detention must be an individualized exception rather than a default mechanism, affirming
that “release must be the rule and provisional detention the exception”.28
44.
The source notes that in the case at hand, on 27 April 2022, the Presnensky District
Court imposed on Mr. Gorinov a measure of restraint in the form of detention until 25 June
2022 (two months), and on 1 June 2022, the Meshchansky District Court extended the
detention until 19 November 2022 (six months), on the grounds of “if the measure of restraint
is changed for the accused, he may hide or put pressure on witnesses”.
45.
According to the source, the court ignored Mr. Gorinov’s defence that he was not
going to hide from the investigation and did not seek less restrictive measures. Moreover, the
court ignored Mr. Gorinov’s state of health and his detention conditions. On 30 April 2022,
three days after entering the pretrial detention centre, Mr. Gorinov fell ill with a cough and
fever, but he received no adequate medical care or treatment. His defence reportedly appealed
to the Federal Penitentiary Service, but no health-care measures have yet been taken. On 8
June 2022, his attorney received a response from the Federal Penitentiary Service claiming
that sufficient medical care is being provided to Mr. Gorinov and that the conditions of his
detention are satisfactory.
46.
However, according to two letters sent by Mr. Gorinov to his counsel, no adequate
medical care or treatment has been provided: the staff only gave him five bromhexine tablets
and nothing else, despite the fact that prior to his detention, he was diagnosed with
tuberculosis, as a result of which part of his lung was removed. In addition, he was reportedly
subjected to harsh pretrial conditions in overcrowded cells in violation of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
47.
The source thus submits that the measure of restraint in the form of detention and its
extension was neither reasonable nor necessary and was therefore in violation of the general
rule against pretrial detention guaranteed by article 9 (3) of the Covenant.
iv.
Disproportionate and excessive sentencing (category III)
48.
According to the source, the established practice of the Working Group affirms that
detentions that are in response to the exercise of the freedom of opinion and expression
require a “particularly vigilant review of the application of fair trial guarantees”.29 More
specifically, laws that restrict freedom of speech may have legitimate means but are prone to
abuse, and violation of such laws that stifle freedom of expression should not be punished by
detention at all, as such the punishment is disproportionate.30 On this issue, the Human Rights
Committee, in its general comment No. 34 (2011), is unambiguous: “imprisonment is never
an appropriate penalty”.31
49.
The source recalls that on 8 July 2022, the Meshchansky District Court of Moscow
“imposed a sentence of imprisonment for a period of seven years to be served in a correctional
colony of general regime, along with a deprivation of the right to hold positions in State
bodies, local self-government bodies, State and municipal institutions related to the exercise
27 Human Rights Committee, general comment No. 35 (2014), para. 38.
28 Opinion No. 24/2015, para. 37.
29 Opinion No. 4/2010, para. 21.
30 Opinion No. 35/2008, para. 36; Lohé Issa Konaté v. The Republic of Burkina Faso, Application No.
004/2013, Judgment, African Court on Human and Peoples’ Rights, 5 December 2014; and Herrera-
Ulloa v. Costa Rica, Judgment, Inter-American Court of Human Rights, 2 July 2004.
31 Human Rights Committee, general comment No. 34 (2011), para. 47.
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of managerial functions and the performance of organizational and administrative and
economic powers for a period of four years”.
50.
The source thus submits that the sentencing of Mr. Gorinov is disproportionate and
excessive and renders his detention arbitrary.
Response from the Government
51.
On 27 July 2022, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group requested
the Government to provide, by 26 September 2022, detailed information about the current
situation of Mr. Gorinov and to clarify the legal provisions justifying his continued detention,
as well as its compatibility with the obligations of the Russian Federation under international
human rights law, and in particular with regard to the treaties ratified by the State. Moreover,
the Working Group called upon the Government of the Russian Federation to ensure his
physical and mental integrity.
52.
On 23 September 2022, the Government submitted its reply, in which it explains that,
on 25 April 2022, the Central Investigation Department for Moscow, a unit of the
Investigative Committee of the Russian Federation, opened a criminal case against Mr.
Gorinov and a Ms. K.
53.
The case was brought on the basis of evidence of offences under article 207.3 (2) (a),
(b) and (d) (Public dissemination, under the guise of credible reports, of knowingly false
information containing data on the use of the armed forces of the Russian Federation to
protect the interests of the Russian Federation and its citizens and to maintain international
peace and security, by a person using his or her official position or by a group of persons by
prior conspiracy, for reasons of political hatred) of the Criminal Code of the Russian
Federation.
54.
It was established that, on 15 March 2022, at a videorecorded meeting of the Council
of Deputies of the Krasnoselsky Municipal District, Ms. K, for reasons of political hatred,
using her official position, being aware that her actions were illegal and constituted a danger
to society and foreseeing the inevitability of socially dangerous consequences, namely, that
she would undermine the authority of and discredit the current Government and the armed
forces of the Russian Federation, by prior conspiracy with Mr. Gorinov, publicly
disseminated, under the guise of credible reports, knowingly false information containing
data on the use of the armed forces of the Russian Federation.
55.
On 17 March 2022, with the prior knowledge of Ms. K and Mr. Gorinov, in order to
publicize the aforementioned knowingly false information, a video recording of the meeting
was posted online on the YouTube channel of the Krasnoselsky Municipal District, which is
accessible to an unlimited number of users, under the title “Fifth meeting of the Council of
Deputies of the Krasnoselsky Municipal District on 15 March 2022”.
56.
The decision of the Investigative Committee to initiate criminal proceedings was
recognized as lawful by the Prosecutor’s Office of the city of Moscow.
57.
On 26 April 2022, Mr. Gorinov was detained under articles 91 and 92 of the Code of
Criminal Procedure of the Russian Federation. On the same day, he was charged under the
above-mentioned articles of the Criminal Code.
58.
On 27 April 2022, the Presnensky District Court in Moscow remanded Mr. Gorinov
in custody, by way of a preventive measure, until 25 June 2022. The petition of the accused
and his counsel for him to be placed under house arrest, with bail set at 2.5 million roubles
or prohibited from engaging in certain activities was rejected by the court (this decision was
upheld by the Moscow City Court on 8 June 2022).
59.
As a result of the fact that Ms. K absconded from the authorities conducting the
preliminary investigation on 1 May 2022, a separate criminal case was opened against Mr.
Gorinov, also under article 207.3 (2) (a), (b) and (d) of the Criminal Code.
60.
On 19 May 2022, the case was sent for trial by the Meshchansky District Court in
Moscow, a bill of indictment having been duly approved.
61.
On 1 June 2022, at the request of the public prosecutor, the court extended Mr.
Gorinov’s remand in custody until 19 November 2022, explaining that no new circumstances
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11
had arisen that would entail the application of another, milder, preventive measure in respect
of the accused and that no relevant evidence in that regard had been presented by the defence
(this decision was upheld by Moscow City Court on 12 July 2022).
62.
On 8 July 2022, the Meshchansky District Court in Moscow found Mr. Gorinov guilty
of publicly disseminating, under the guise of credible reports, knowingly false information
containing data on the use of the armed forces of the Russian Federation to protect the
interests of the Russian Federation and its citizens and to maintain international peace and
security, by a person using his or her official position or by a group of persons by prior
conspiracy, for reasons of political hatred.
63.
The court found that Mr. Gorinov, acting with an accomplice, had used his official
position as a member of the Council of Deputies of the Krasnoselsky Municipal District to
criticize the actions of the armed forces of the Russian Federation in Ukraine and had
knowingly posted online a related video recording, which, as a result, had been viewed by
about 43,000 people.
64.
In substantiation of its finding of guilt, the court referred to the testimony of witnesses
who were present at the meeting of the Council of Deputies, the conclusions of forensic
examinations of Mr. Gorinov’s statements and the testimony of experts questioned in court.
65.
The court sentenced Mr. Gorinov to seven years’ deprivation of liberty, with forfeiture
of the right to occupy positions in central and local government bodies and in State and
municipal institutions that involve carrying out managerial functions or exercising
organizational, administrative or executive authority for a period of four years.
66.
On the basis of article 72 (3) (1) (b) of the Criminal Code, the time spent by Mr.
Gorinov on remand between 26 April 2022 and the date on which his sentence becomes
enforceable will be counted towards the period of deprivation of liberty, with one and a half
days on remand credited as one day served in a general regime correctional colony.
67.
As at 19 September 2022, the sentence had not become enforceable owing to its appeal
by the defence.
68.
Mr. Gorinov is being held at remand centre No. 1, a federally funded institution under
the department of the Federal Penal Service for the city of Moscow. He has been provided
with an individual sleeping place. According to the results of ad hoc checks carried out on
17 August 2022 by a specialist from the State Public Health Inspectorate, a federally funded
health institution under the Federal Penal Service, the condition of the cell where Mr. Gorinov
is being held is satisfactory and the available living space complies with approved
requirements. The cell is cleaned, contact surfaces treated with disinfectants and hand
sanitizer is available. In addition, during a personal interview on the same day, Mr. Gorinov
stated that he had no complaints about his conditions of detention.
69.
Mr. Gorinov is receiving medical care in accordance with the procedure for the
provision of medical care to remand prisoners and persons serving custodial sentences,
approved by Order No. 285 of the Ministry of Justice of 28 December 2017. During his
detention, he has been examined on multiple occasions and seen by medical specialists. No
violations of the requirements of Federal Act No. 323-FZ of 21 November 2011 on the
principles of health care for citizens of the Russian Federation have been identified in his
case.
70.
In order to prevent the outbreak and spread of new infections resulting from the
coronavirus disease (COVID-19) pandemic, a set of essential public health (preventive)
measures have been introduced in the institutions of the Federal Penal Service in Moscow,
in accordance with the relevant decisions of the Service’s Chief State Medical Officer.
However, according to the Prosecutor’s Office, from 19 to 28 May 2022, Mr. Gorinov was
held in cells at the remand centre that provided less than four square metres of living space
per inmate, in breach of article 23 of Federal Act No. 103-FZ of 15 July 1995 on the custody
of suspects and accused persons. Moreover, contrary to article 33 of the Act, from 28 May to
3 June 2022, Mr. Gorinov was held in a cell with a person accused of organizing a criminal
association (organization). In connection with the violations identified, on 30 June 2022, a
recommendation was made to the head of the local agency of the Federal Penal Service,
which was considered and complied with under established procedures.
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71.
At present, Mr. Gorinov is accommodated in a cell measuring 22 square metres and
equipped with four bunks, in which four people are being held, including himself.
Additional comments from the source
72.
On 27 September 2022, the response of the Government was sent to the source for
further comments, which it provided on 6 October 2022.
73.
The source argues that the Government had not refuted the allegations listed in the
complaint, demonstrating that Mr. Gorinov’s arrest and detention were arbitrary. The
Government’s recitation of the facts and procedures followed, as well as the conditions of
detention and the medical care supposedly provided, did not undermine the allegations made
by the source.
74.
The source notes, in particular, that the Government did not contest that Mr. Gorinov
was convicted based on the statements reported in the complaint. The source states that the
procedural recitation in the Government’s response was accurate apart from its omission to
mention that on 19 September 2022, the appellate instance of the Moscow City Court
changed the sentence. In this respect, the source adds that the court of appeal found that
“despite the fact that Mr. Alexey Gorinov’s statements were not factual statements, but his
opinions, it is still irrelevant, because his opinions were not corresponding to the official
position of the Russian Government” and “lowered” his sentence from seven years of
imprisonment to six years and 11 months.
75.
In relation to Mr. Gorinov’s conditions of detention and medical care, the source
argues that the Government’s response acknowledges two violations of Russian Federal Law,
first with respect to holding him, from May 19 to May 28, in the cells of the pretrial detention
centre in a space providing less than 4 square meters per person; and second for holding him,
from 28 May to 3 June 2022, in a cell room together with another detainee accused of
organizing a criminal association.
76.
The source states that Mr. Gorinov remains held in remand centre No. 1 of the city of
Moscow, “Matrosskaya Tishina”, in a cell adapted for the housing of four people, but that an
additional place has been installed in this cell and that five people are kept inside.
Discussion
77.
The Working Group thanks the source and the Government for the submissions. In
determining whether Mr. Gorinov’s deprivation of liberty is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has established a prima facie case for breach of the international law constituting
arbitrary detention, the burden of proof should be understood to rest upon the Government if
it wishes to refute the allegations. Mere assertions by the Government that lawful procedures
have been followed are not sufficient to rebut the source’s allegations.32
i.
Category II
78.
With regard to category II, the source submits that the deprivation of liberty of Mr.
Gorinov is the result of his peaceful exercise of the right to freedom of expression under
article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights, and
his right to engage in political activity under article 25 of the Covenant and article 21 of the
Universal Declaration of Human Rights. Conversely, the Government argues that he was
convicted, together with another individual, for publicly disseminating information that he
knew to be false under the guise of credible reports, which contained “data” on the use of the
armed forces of the Russian Federation.
79.
The Working Group recalls that that freedom of opinion and freedom of expression
as expressed in article 19 of the Covenant are indispensable conditions for the full
development of the person and are essential for any society and in fact constitute the
foundation stone for every free and democratic society.33 Freedom of expression includes the
right to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
and this right includes the expression and receipt of communications of every form of idea
32 A/HRC/19/57, para. 68.
33 Human Rights Committee, general comment No. 34 (2011), para. 2.
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13
and opinion capable of transmission to others, including political opinions.34 It protects the
holding and expression of opinions, including those which are critical of, or not in line with,
government policy.35
80.
The Government refers to the fact that Mr. Gorinov was convicted on the basis of a
law, specifically article 207.3 of the criminal code, which made “public dissemination of
deliberately false information about the use of the Russian armed forces or government
authorities’ activities outside the Russian Federation” punishable with a penalty of up to 15
years in prison. However, the Working Group notes that, whereas speech may be limited
according to article 19 (3) of the Covenant and article 29 (2) of the Universal Declaration of
Human Rights, the sole fact that it may be criminalized under domestic law does not deprive
individuals of their right to freedom of speech under international law. In this respect, the
Human Rights Committee has emphasized that the form of expression is highly relevant in
assessing whether a restriction is proportionate. As stipulated by the Human Rights Council,
certain types of expression should never be subject to restrictions, such as “discussion of
government policies and political debate [ … ] peaceful demonstrations or political activities,
including for peace or democracy”.36 The Committee has also called on States to refrain from
imposing restrictions under article 19 (3) of the Covenant that are not consistent with
international human rights law. 37 Moreover, the Working Group recalls that in a joint
declaration on freedom of expression and “fake news”, disinformation and propaganda,
adopted in Vienna on 3 March 2017, several experts (including the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expression) stated that
general prohibitions on the dissemination of information based on vague and ambiguous
ideas, including false news or information, are incompatible with international standards for
restrictions on freedom of expression and should be abolished.38
81.
The Working Group considers that Mr. Gorinov’s statements fall within the right to
freedom of opinion and expression protected under article 19 of the Universal Declaration of
Human Rights and article 19 of the Covenant and that he was detained for exercising this
right. Mr. Gorinov’s statements, as reported, did not call for violence or war. To the contrary,
they highlighted the harmful impacts of war and called for its end. It is difficult to imagine
an issue falling more squarely within the protective ambit of the right to freedom of
expression. Indeed, prohibiting this type of speech would turn the Covenant on its head,
particularly article 20 (1), according to which: “Any propaganda for war shall be prohibited
by law”.
82.
The right to take part in the conduct of public affairs is protected under article 21 of
the Universal Declaration of Human Rights and article 25 (a) of the Covenant. The Human
Rights Committee has stated that citizens may take part in the conduct of public affairs by
exerting influence through public debate.39 This right is also applicable when the citizen is a
publicly elected or appointed official. It protects the freedom to engage in political activity,
including criticism of the Government and its policies and engaging in meetings or debates
concerning political affairs.40
83.
The Working Group notes that Mr. Gorinov is an independent member of
Krasnoselsky Municipal Council in Moscow and an active member of Russian civil society
engaged in political and civil rights issues. He has clearly been detained for statements made
in relation to his participation in public life. His detention will impede his ability to exercise
his rights in this respect. The Working Group considers that this constitutes a violation of
article 21 of the Universal Declaration of Human Rights and article 25 (a) of the Covenant.
84.
The Government did not present any argument or evidence to the Working Group
justifying limitations on these rights and freedoms permitted under the Universal Declaration
of Human Rights and the Covenant in the present case, nor did it demonstrate why bringing
charges against Mr. Gorinov was a legitimate, necessary and proportionate response to his
34 Ibid., para 11.
35 Opinions No. 79/2017, para. 55, and No. 8/2019, para. 55.
36 A/HRC/14/23, para. 81(i).
37 Human Rights Committee resolution 12/16, para. 5 (p).
38 https://www.ohchr.org/Documents/Issues/Expression/JointDeclaration3March2017.doc, para. 2.a; see
also Opinions No. 46/2020, para. 54, and No. 77/2020, para. 73.
39 Human Rights Committee, general comment No. 25 (1996), para. 8.
40 Ibid., para. 25.
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anti-war statements. To the extent that Mr. Gorinov’s comments were portrayed as criticisms
of the actions of the Russian Federation and its armed forces, this does not remove them from
the protection of the right to freedom of expression. The Working Group has repeatedly stated
that the State and its military is not immune from criticism.41 Similarly, the Human Rights
Committee has explicitly confirmed that “States parties should not prohibit criticism of
institutions, such as the army or the administration”.42
85.
Noting all of the above, the Working Group concludes that the detention of Mr.
Gorinov resulted from the legitimate exercise of his right to freedom of expression and his
right to participate in public life, as protected by articles 19 and 25 of the Covenant and
articles 19 and 21 of the Universal Declaration of Human Rights. His detention is therefore
arbitrary, falling under category II. The Working Group refers the present case to the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and
expression, for appropriate action.
ii.
Category III
86.
Given its finding that the deprivation of liberty of Mr. Gorinov is arbitrary under
category II, the Working Group wishes to emphasize that no trial of Mr. Gorinov should have
taken place. However, the trial did take place, and Mr. Gorinov was sentenced to a lengthy
term of seven years imprisonment (subsequently reduced to six years and 11 months). The
source has submitted that there were severe violations of the fair trial rights of Mr. Gorinov,
especially with regard to his pretrial detention, and that his subsequent detention was
disproportionate, and thereby his detention falls under category III. The Government, for its
part, disputes that Mr. Gorinov was deprived of his due process rights and provides details
as to the various stages of the proceedings against him and the laws under which those
proceedings were undertaken. Regarding his pretrial detention, it points out that this was
ordered on the basis that he might “hide or put pressure on witnesses”.
87.
The Working Group recalls that article 9 (3) of the Covenant provides that “it shall
not be the general rule that persons awaiting trial shall be detained in custody”. The Human
Rights Committee has confirmed that pretrial detention should be an exception, should be as
short as possible and must be based on an individualized determination that it is reasonable
and necessary taking into account all the circumstances, for such purposes as to prevent flight,
interference with evidence or the recurrence of crime. Courts must examine whether
alternatives to pretrial detention, such as bail, electronic bracelets or other conditions would
render detention unnecessary in the particular case.43
88.
In addressing the claims under category III, it is important to bear in mind the
underlying conduct for which Mr. Gorinov was prosecuted consisted of several statements.
There is no indication that he engaged in or called for any kind of violence; in fact his
statements indicate the opposite. In this respect, the Human Rights Committee has observed
in related to prosecutions concerning speech and expression that:
“Restrictive measures must conform to the principle of proportionality; they must be
appropriate to achieve their protective function; they must be the least intrusive
instrument amongst those which might achieve the desired result; and they must be
proportionate to the interest to be protected.
The principle of proportionality has to be respected not only in the law that frames the
restrictions, but also by the administrative and judicial authorities in applying the
law.”44
89.
Given that the allegations against Mr. Gorinov concerned speech, with no indication
of violent threats, the onus was on the Government to demonstrate, on an objective and
substantiated basis, another accepted justification for the imposition of exceptional pretrial
detention. However, the Working Group does not consider that the Government’s speculative
and vague statement that he “may hide or put pressure on witnesses” is a sufficient basis
41 Opinions No. 50/2011, para. 18, and No. 28/1998, para. 13.
42 Human Rights Committee, general comment No. 34 (2011), para. 38.
43 Human Rights Committee, general comment No. 35 (2014), para. 38.
44 Human Rights Committee, general comment No. 27(1999), paras. 14–15; reiterated by the Committee
in relation to freedom of expression in its general comment No. 34 (2011), para. 34.
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explanation for his pretrial detention. The Government’s reference to another person (“Mrs.
K”) allegedly “absconding” is similarly vague, lacking an explanation as to its relevance to
Mr. Gorinov, and, in any event, is insufficient to constitute an individualized assessment of
the necessity for Mr. Gorinov’s pretrial detention.
90.
In the light of the circumstances set out above, as well as Mr. Gorinov’s sentence,
which the Working Group discusses in the following section, and bearing in mind the context
of Mr. Gorinov being criminally prosecuted for demonstrably non-violent statements, the
Working Group concludes that the violation of Mr. Gorinov’s due process rights are of such
gravity as to give Mr. Gorinov’s deprivation of liberty an arbitrary character under category
III.
iii.
Category V
91.
In the present case, the Working Group has found under category II that Mr. Gorinov’s
detention resulted from the legitimate exercise of his right to freedom of expression and his
right to participate in public life. When a detention results from the active exercise of civil
and political rights, there is a strong presumption that the detention also constitutes a violation
of international law on the grounds of discrimination based on political or other views.45
Accordingly, the Working Group will examine the allegations under category V.
92.
In this respect, the source has demonstrated that Mr. Gorinov was detained and
sentenced to imprisonment under article 207.3 for expressing anti-war sentiments. The source
has also demonstrated that many thousands of people in the Russian Federation have been
imprisoned for expressing anti-war views and that article 207.3 has been used to target those
who criticize the Russian Government and armed forces regarding the war in Ukraine. For
its part, the Government acknowledges that Mr. Gorinov’s statements were political in
nature, by referring to them as “political hatred”. However, it offers no explanation as to why
detention was a necessary and proportionate measure and instead simply asserts that it was
done “to protect the interests of the Russian Federation and its citizens and to maintain
international peace and security”. Such claims cannot override international human rights
law obligations, including the obligation not to discriminate against people based on their
political opinions. Consequently, the Working Group concludes that his detention has been
conducted on a discriminatory basis, namely due to his anti-war political opinion, and
constitutes a violation of articles 2 and 7 of the Universal Declaration of Human Rights and
articles 2 (1) and 26 of the Covenant. It is accordingly arbitrary under category V.
iv.
Concluding remarks
93.
In relation to his sentence, the Working Group notes that Mr. Gorinov has been
sentenced to seven years imprisonment (reduced to six years and 11 months). The
Government indicates that once Mr. Gorinov’s sentence becomes enforceable, the number of
days that he has been held in detention will be taken into consideration. However, he is still
due to be detained for a lengthy period of time, merely for exercising his human rights and
on the basis of the flawed application of the judicial procedures. While the appropriate
sentence is a matter for domestic judicial bodies to determine, the Working Group has
previously noted its concern about custodial sentences for matters related to freedom of
expression. As noted, Mr. Gorinov’s statements, as reported, did not call for violence or war,
but instead highlighted the harmful impacts of war and called for its end. The Working Group
has already concluded that prosecuting this speech constituted a violation of, inter alia, Mr.
Gorinov’s right to freedom of expression. It considers that the imposition of a custodial
sentence on Mr. Gorinov for exercising his freedom of expression and participating in public
life indicates that the violations of his rights set out above, were particularly aggravated. This
further reinforces the arbitrariness of his detention.
94.
Additionally, the Working Group noted with concern the allegations that inadequate
medical care and treatment was provided to Mr. Gorinov, that he was diagnosed with
tuberculosis, as a result of which part of his lung was removed, and that he was reportedly
subjected to pretrial conditions in overcrowded cells. The Working Group feels obliged to
remind the Government that in accordance with article 10 of the Covenant, all persons
deprived of their liberty must be treated with humanity and with respect to the inherent
dignity of the human person and that denial of medical assistance constitutes a violation of
45 Opinions No. 88/2017, para. 43, No. 13/2018, para. 34, and No. 59/2019, para. 79.
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the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules), rules 1, 24, 25, 27 and 30 in particular.
Disposition
95.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mr. Gorinov, being in contravention of articles 2, 3, 7,
9, 19 and 21 of the Universal Declaration of Human Rights and articles 2 (1), 9 (3),
19, 25 and 26 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories II, III and V.
96.
The Working Group requests the Government of the Russian Federation to take the
steps necessary to remedy the situation of Mr. Gorinov without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights.
97.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Gorinov immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
98.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Gorinov and to take appropriate measures against those responsible for the violation of his
rights.
99.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, for appropriate action.
100.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
101.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Gorinov has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Gorinov;
(c)
Whether an investigation has been conducted into the violation of Mr.
Gorinov’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Russian Federation with its international obligations
in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
102.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
103.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action would
enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
104.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
A/HRC/WGAD/2022/78
GE.23-04104
17
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.46
[Adopted on 16 November 2022]
46 Human Rights Council resolution 51/8, paras. 6 and 9.