Application Number 4439/11
European Court of Human Rights
[Request for referral to the Grand Chamber pending]Application by journalist/politician regarding criminal conviction and ban on journalistic activities for statements made against non-Russians referring to them as, inter alia, criminals (with no calls for violence). Court found no violation of Article 10 due to the damaging nature of generalized racist statements.
Link: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-200839%22]}
Theme(s): Ethnic Hatred
Date: 11 February 2020
Description of applicant(s): Journalist, founder of newspaper, politician: Leader of the local branch of the Democratic Party of Russia. He also occasionally published articles in other local newspapers as a freelancer.
Brief Description of facts: In his article, the applicant claimed to present his arguments for his decision not to vote in the coming election. His reasoning led him to enquire about the notion of “the people” whose wealth, he argued, had been growing. His ensuing reasoning could be perceived as suggesting that the people of Russian ethnicity suffered and non-Russian groups were to blame. His article ended with an appeal to an incoming President of Russia to tackle related issues. The applicant affirmed, with reference to “ethnic characteristics,” that members of those groups had engaged in criminal activities and that while residing in Russia they continued to behave in a criminal manner, getting “their hands into others’ pockets” and conspiring against the “Kuban people.” The applicant affirmed that the members of those groups would “slaughter, rape, rob and enslave, in line with their barbaric ideas” and that they “participate[d] in the destruction” of Russia.
The applicant was convicted for his article which, as adjudged by the domestic courts, incited hatred and enmity and debased the dignity of a group of people on account of their ethnicity, language, origin and religion. For each publication of the article, the applicant was sentenced to a fine of RUB 200,000 (some EUR 5,086 at the time) and was also prohibited from exercising any journalistic or publishing activities for two years.
(Alleged) target(s) of speech: Non-Russians: while he had not named any specific group, it was clear from the context that he meant (essentially non-Slavic) ethnicities of Central Asia, Northern Caucasus and Transcaucasia; from certain parts of the text it became clear that he was talking about the Armenian ethnicity.
The Court’s assessment of the impugned speech: Speech does not have to incite/justify violence/hatred or intolerance for it to be prohibited:
Important paragraph(s) from the judgment:
Para 51: In assessing whether the statements could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance, the Court has been particularly sensitive towards sweeping statements attacking or casting in a negative light entire ethnic, religious or other groups.
Para 52: Inciting hatred does not necessarily involve an explicit call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner
ECHR Article: Article 10
Decision: No violation
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para.67: Although sentencing is in principle a matter for the national courts, the imposition of a custodial sentence (even a suspended one) for a media‑related offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech.
Para 52: reference to ‘xenophobic or otherwise discriminatory speech.’