| Applicant name | NEPOMNYASHCHIY AND OTHERS |
| Applicant type | Natural Persons |
| Number of applicants | 4 (one of them no longer wishing to pursue the claim) |
| Country | Russia |
| Application no. | 39954/09 3465/17 |
| Date | 30/05/2023 |
| Judges | Pere Pastor Vilanova, President, Georgios A. Serghides, Yonko Grozev, Darian Pavli, Peeter Roosma, Ioannis Ktistakis, Andreas Zünd |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation (Article 8+14) |
| Reason | Negative/positive obligation |
| Type of privacy | Bodily privacy |
| Keywords | Defamation LGBTI community; victim status; abuse of right; balancing Article 10 ECHR & Article 8 ECHR |
| Facts of the case | The ECtHR has merged two applications in this judgement. In the first application, three persons belonging to the LGBTI community and identifying as LGBTI activists complained about a publication in a national newspaper of an interview with Governor Betin, in which he stated: ‘Damn it! Homos must be torn to pieces. And the pieces thrown to the wind!’ The applicants lodged a criminal complaint, but the Investigations Committee found that Mr Betin’s interview did not contain any insults or foul language, nor called for violence. Article 282 § 1 of the Criminal Code (incitement to hatred or enmity and the humiliation of human dignity) punishes actions aimed at inciting hatred or enmity and humiliating the dignity of an individual or a group of individuals on the grounds of sex, race, ethnic origin, language, background, religious beliefs or membership of a social group, committed publicly or through the mass media, including on Internet. However, the Committee found that although the interview contained emotional evaluations and negative attitudes against people of a “non-traditional sexual orientation”, those statements did not fall under Article 282 CC because, according to social science, homosexuals were not a social group. In subsequent appeals, the claims of applicants were also denied. The second application concerned a person who was also an LGBTI rights activist, and who was attacked and shot in the back several times. A colleague lost an eye. That colleague posted a blog in which several politicians were partly responsible for these attacks, as they had incited violence against the LGBTI community. In an interview, one of these responded by stating that the loss of an eye was regrettable, but that the community was asking for a response, that they were perverts and sickos, and that homosexuality was equal to other immoral acts such as murder. The complaint of applicant under Art 282 CC was denied. The politician claimed that he did not know the interview would be published, that his words were taken out of context, and that he spoke metaphorically about booting homosexuals. An expert commissioned by the investigator found that the interview contained humiliating descriptions and negative emotional evaluations of, and negative attitudes towards, a specific social. However, criminal proceedings were not started, because the Investigations Committee found that homosexuals could not be considered a ‘social group’ for the purposes of Article 282 CC and that it not possible to prove that the politician had a direct intent to incite hatred or enmity against, or to violate the dignity of, homosexuals, given that the journalist had not warned him that the interview would be recorded and published verbatim in the press. In appeal, other bodies found that the applicant had not suffered from an interference in his private life. Civil proceedings were also unsuccessful. |
| Analysis | Several points are relevant: 1. First, there is discussion over whether the ECtHR has jurisdiction, now Russia has pulled out from the Convention mechanism. Yes, the ECtHR finds, because the conduct complained of happened prior to the date on which Russia ceased to be a party to the Convention. 2. One of the three applicants of the first application no longer wished to pursue his complaints. The Court strikes out the part of the application that relates specifically to him, yet pursues the other parts of the application. 3. The government suggests that the applicants cannot claim to be personally affected by the statements complained of, as they were directed at the LGBTI community at large. The Court, however, points out that negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. Thus, a person can claim to be harmed directly and individually by virtue of membership to a group. 4. The government suggests that to the extent the claimants could be said to be affected personally by the statements, such did not amount to significant harm significant (indirectly referencing the de minimis principle). The Court repeats the three relevant criteria for answering this question, namely: (a) the characteristics of the group (e.g. its size, degree of homogeneity, particular vulnerability or history of stigmatisation, and position vis‑à‑vis society as a whole), (b) content of the negative statements (e.g. the degree to which they convey a negative stereotype about the group), and (c) the form and context in which the statements were made, their reach, the position and status of their author, and the extent to which they could be considered to have affected a core aspect of the group’s identity and dignity. As to point (a), the ECtHR repeats that gender and sexual minorities require special protection from hateful and discriminatory speech because of the marginalisation and victimisation to which they have historically been, and continue to be, subjected. Given the history of public hostility towards the LGBTI community in Russia and the increase in homophobic hate crimes, the Russian LGBTI community is a particularly vulnerable group in need of heightened protection. As to point (b), the Court points out that the statements were evidently homophobic, hostile and aggressive. As to point (c), the ECtHR emphasizes that the statements were made by influential politicians in popular newspapers with a large readership. The interference therefore reached the “threshold of severity” required to affect the “private life” of members of the group. 5. Interestingly, although the ECtHR is increasingly focussed on the quality of the legal regime, assessing whether a state’s legal regime incorporates adequate checks and balances, in this case the Court finds that in principle, Russia’s legal regime is in conformity with the Convention. The Court finds that a country’s Criminal Code does not need to make explicit mention of sexual minorities per sé, as long as general prohibitions against discrimination, hate speech and violations of private life contained therein are interpreted by executive and judicial authorities in a way that account is had of the rights of sexual minorities. The ECtHR, however, acknowledges that it was presented with no example of judicial practice in which a person’s gender identity and sexual orientation as a protected aspect of their right to respect for human dignity and private life or as an element of the offence of hate speech was recognised. Although the Court oftentimes emphasises that victims must have effective, not merely theoretical or illusory remedies at their disposal, in this case, the ECtHR is willing to accept the adequacy of the legal regime, without either the legal text or the legal practice suggesting that the remedies were effective in cases such as brought by the applicants. 6. The Court distinguishes between expressions that promote or justify violence, hatred, or intolerance in its gravest forms, to which Article 17 ECHR applies, meaning that such speech is in its entirety excluded from the protective scope of the Convention, and ‘normal’ hate speech, which falls under the protective scope of Article 10 ECHR. Apparently finding that Article 17 ECHR is not applicable in this case, the Court emphasizes that domestic authorities must balance the right to freedom of expression against the right to privacy, according to the principles as laid down in the ECtHR’s jurisprudence. Although the ECtHR often emphasizes that politicians have a particularly wide freedom of expression, given that they must be allowed to discuss controversial social and legal issues, in this judgement, the Court picks up on another line in its case law, namely that it is of crucial importance for politicians to avoid making statements promoting hatred or intolerance, given their special role as defenders of democracy. Here, the ECtHR, links the respect for the rule of law and minority rights to the democratic system. 7. Turning to this case, the ECtHR finds that the domestic authorities did not embark on a balancing exercise between the competing Convention rights. By refusing to regard LGBTI people as a “social group”, the domestic authorities simply ignored the applicants’ legitimate rights to protection of their private life, gender identity and freedom from discrimination. Also, the ECtHR is unconvinced that in the second application, the politician could not foresee the impact of his statements, as he did not know they would be published or because they had been taken out of context. ‘While being careful not to hold that each and every utterance of hate speech against a vulnerable group must, as such, attract criminal prosecution and criminal sanctions, the Court is unable to subscribe to the conclusions of the domestic courts in the present case. It finds that the domestic authorities in the criminal proceedings failed to strike a fair balance between the applicants’ right to respect for their private life and the public interest in protecting freedom of expression in the light of the principles resulting from the Court’s well‑established case‑law. (§83)’ Turning to the civil proceedings, again, the Court finds that no adequate balancing of the various interests had taken place by the domestic authorities. 8. The Court finds a violation of Article 8+14 ECHR. It is unclear why it also includes a reference to the latter provision. It has often issued rulings solely under the right to privacy as such, also when cases contained discriminatory aspects. In this case, there is no reference to Article 14 ECHR other than in the finding of a violation and the ECtHR at no point refers to standards following from its established case law on the prohibition of discrimination. |
| Other Article violation? | Yes article 14; Article 17 ECHR not applicable |
| Damage awarded | (i) EUR 7,500 (seven thousand five hundred euros) to Mr Nepomnyashchiy, Mr Bayev, and Ms Krikkerik each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 7,834 (seven thousand eight hundred and thirty-four euros) to Mr Bayev, plus any tax that may be chargeable to him, in respect of costs and expenses; |
| Documents | Judgment |