October 09, 2018
By Dirk Voorhoof (Human Rights Centre, Ghent University and Legal Human Academy)
In Savva Terentyev v. Russia the ECtHR has applied a very high level of free speech-protection for aggressively insulting and hostile comments about police officers, published on a weblog. The ECtHR observes that some of the wording in the blog post was offensive, insulting and virulent, but it found that the (emotional and sarcastic) comments as a whole could not be seen as inciting to hatred or violence. In contrast with the findings by the Russian authorities, the ECtHR is of the opinion that Terentyev’s blog did not pose “a clear and imminent danger” and could not be seen as stirring up “base emotions or embedded prejudices” attempting to incite hatred or violence against Russian police officers.
Controversial police action and conviction for inciting hatred and enmity
The applicant in this case, Savva Terentyev (not to be confused with the applicant in the 2017 judgment in the case of Terentyev v. Russia), living in the Komi Republic of Russia, had a blog hosted by livejournal.com, a popular blog platform. A police action in the premises of a local newspaper journal had resulted in sharp criticism on social media and websites. The official version was that the police found illegal software on the newspaper’s computers, and that this justified the seizure of the hard disks in the newspaper’s office. The police action against the newspaper however took place only short time before regional elections in the Komi Republic, and therefore the search and seizure by the police was linked to the election campaign, especially because the newspaper was in opposition to the current authorities of the Komi Republic and was actively supporting a well-known local politician who had a long-standing conflict with those authorities. In a press release by an NGO and in several blogs, the police action was considered as a political intervention in order to silence the newspaper. One comment labelled the police as “‘the regime’s faithful dogs’ (..) with the mentality of a repressive hard stick in the hands of those who have the power”. Also Savva Terentyev posted a comment entitled “I hate the cops, for fuck’s sake”, in which he compared police officers with pigs and filth, and he suggested that it would be great if in the centre of every Russian city, on the main square “there was an oven, like at Auschwitz”, in which ceremonially “infidel cops” would be burnt.
Criminal proceedings were brought against Terentyev under Article 282 § 1 of the Russian Criminal Code. The blogger was found guilty for “having publicly committed actions aimed at inciting hatred and enmity and humiliating the dignity of a group of persons on the grounds of their membership of a social group”. The court based its findings on, among other evidence, two expert reports and it found that Terentyev had negatively influenced public opinion “with the aim of inciting social hatred and enmity, escalating social conflict and controversy in society and awakening base instincts in people”, calling for the “physical extermination” of police officers by ordinary people. According to the trial court “the text did not allow for any ambiguous interpretation of its content and meaning”. It considered that the crime committed by Terentyev was “particularly blatant and dangerous for national security” as it ran against the fundamentals of the constitutional system and State security. The domestic court found that a sentence involving the deprivation of liberty should be imposed on Terentyev, but given his positive references at his place of residence and work and the absence of a criminal record, Terentyev was imposed a suspended sentence of one year’s imprisonment. The Supreme Court of the Komi Republic rejected Terentyev’s appeal and endorsed the Town Court’s conclusions, confirming that he had publicly called for violence against police officers. Terentyev lodged a complaint with the ECtHR, alleging in particular that his criminal conviction for a comment on the Internet had violated his right to freedom of expression under Article 10 ECHR.
The Court’s judgment
The ECtHR assumes that the interference with Terentyev’s right to freedom of expression was “prescribed by law” and aimed at the protection of the rights of others, namely Russian police personnel. With regard to the assessment of the necessity in a democratic society, the ECtHR first recalls that
“there is little scope under Article 10 § 2 ECHR for restrictions on political speech or on debate on questions of public interest. It is the Court’s consistent approach to require very strong reasons for justifying restrictions on such debate, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned”.
The ECtHR accepts that it may be necessary in democratic societies to sanction or even prevent forms of expression which spread, incite, promote or justify violence or hatred based on intolerance provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued. Next, the ECtHR examines the nature and wording of the impugned statements, the context in which they were published, their potential to lead to harmful consequences and the reasons adduced by the Russian courts to justify the interference in question.
The ECtHR reiterates that offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration. The use of vulgar phrases in itself is however not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes: style constitutes part of the communication as the form of expression and is as such protected together with the substance of the ideas and information expressed. The ECtHR stresses that not every remark which may be perceived as offensive or insulting by particular individuals or groups justifies a criminal conviction in the form of imprisonment. It is only by a careful examination of the context in which the insulting or aggressive words appear that one can draw a meaningful distinction between shocking and offensive language which is protected by Article 10 ECHR and that which forfeits its right to tolerance in a democratic society. The key issue in the present case is whether Terentyev’s statements, when read as a whole and in their context, can be seen as promoting violence, hatred or intolerance.
The ECtHR finds that the statements in Terentyev’s blog raised the issue of the alleged involvement of the police in silencing and oppressing the political opposition in the period of an electoral campaign and therefore concerned a matter of general and public concern, a sphere in which restrictions of freedom of expression are to be strictly construed. With regard the content of the statements, the ECtHR notes that the passage about the ceremonial incineration of “infidel cops” in ovens, referring to Auschwitz, is particularly aggressive and hostile in tone. However, unlike the domestic courts, it is not convinced that that passage can actually be interpreted as a call for the police officers’ physical extermination by ordinary people. Rather it was used as a provocative metaphor, which frantically affirmed Terentyev’s wish to see the police “cleansed” of corrupt and abusive officers (“infidel cops”). It is furthermore of relevance that the remarks in Terentyev’s blog did not attack personally any identifiable police officers but rather concerned the police as a public institution. A certain degree of immoderation may be acceptable, particularly where it involves a reaction to what is perceived as unjustified or unlawful conduct of civil servants. In the Court’s view, being a part of the security forces of the State, the police should display a particularly high degree of tolerance to offensive speech, unless such inflammatory speech is likely to provoke imminent unlawful actions in respect of their personnel and to expose them to a real risk of physical violence. The ECtHR is not convinced that Terentyev’s comment was likely to encourage violence capable of putting the Russian police officers at risk. Furthermore his blog had only a minor impact, as it drew seemingly very little public attention, and the comments remained only one month online. Finally the Court reiterates that a criminal conviction is a serious sanction, while moreover the imposition of a prison sentence for an offence in the area of a debate on an issue of legitimate public interest is only compatible with Article 10 ECHR in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence. The ECtHR repeats that it is not convinced that Terentyev’s comment had the potential to provoke any violence with regard to the Russian police officers, and thus posed a clear and imminent danger which required his criminal prosecution and conviction. The ECtHR furthermore stresses
“that it is vitally important that criminal law provisions directed against expressions that stir up, promote or justify violence, hatred or intolerance clearly and precisely define the scope of relevant offences, and that those provisions be strictly construed in order to avoid a situation where the State’s discretion to prosecute for such offences becomes too broad and potentially subject to abuse through selective enforcement” (§ 85).
On the basis of these considerations the ECtHR comes to the conclusion that Terentyev’s criminal conviction did not meet a “pressing social need” and was disproportionate to the legitimate aim invoked. The interference was thus not “necessary in a democratic society” and accordingly violated Article 10 ECHR.
The outcome in this case with the finding of a violation of Article 10 ECHR might be surprising, as the comments at issue wishing that “infidel cops” may be ritually burnt by the people, in an oven “like at Auschwitz”, can be considered as incitement to hatred and even violence against the police, while incitement to hatred and violence can be sanctioned with criminal sanctions without amounting to a violation of Article 10 ECHR (see e.g. Sürek (no. 1) v. Turkey, Sürek (no 3) v. Turkey, Zana v. Turkey, Hocaoğullari v. Turkey, Halis Doğan (no. 3) v. Turkey, Karatepe v. Turkey, Falakaoğlu and Saygili v. Turkey, Saygili and Falakaoğlu (no. 2) v. Turkey, Féret v. Belgium, Lindon, Otchakovsky-Laurens and July v. France and Leroy v. France). In some exceptional and extreme cases, the abuse clause of Article 17 ECHR has even been declared applicable, excluding “hate speech” from any protection under the Convention’s right to freedom of expression (eg. Mark Anthony Norwood v. the United Kingdom (dec.), Fouad Belkacam v. Belgium (dec.), Dieudonné M’bala M’bala v. France(dec.) and ROJ TV A/S v. Denmark(dec.)). The unanimous finding by the ECtHR in Savva Terentyev v. Russia that the offensive comments posted on the Internet did not justify a suspended prison sentence, is however in line with the Court’s jurisprudence in cases where the ECtHR is not convinced that the statements (or slogans) at issue contained incitement to hatred or violence, or acts of terrorism (see the Court’s findings in numerous cases against Turkey since 1999, most recently e.g. Dündar and Aydınkaya v. Turkey, Düzel v. Turkey, Varhan v. Turkey, Yildirim v. Turkey, Kinik v. Turkey, Polat and Tali v. Turkey and Ayadin v. Turkey). The ECtHR also reiterates that in principle the police should display a particularly high degree of tolerance to offensive speech. Earlier case law of the Court made clear that calling the police “wild beasts in uniform” was considered as protected speech under Article 10 ECHR (Thorgeir Thorgeirson v. Iceland. See also Lyashko v. Ukraine and Vellutini and Michel v. France). In Savva Terentyev v. Russia, the statements furthermore did not attack personally any identifiable police officers, but concerned the police as a public institution.
As the ECtHR emphasized in other judgments, provisions in criminal law restricting political speech or debate on questions of public interest must be strictly interpreted (Gündüz v. Turkey and Perinçek v. Switzerland). It is indeed the Court’s consistent approach to require very strong reasons for justifying restrictions on such debate, especially in pre-election periods (Długołęcki v. Poland). More recently, in Stomakhin v. Russia, the ECtHR emphasized “that it is vitally important that the domestic authorities adopt a cautious approach in determining the scope of “hate speech” crimes and strictly construe the relevant legal provisions in order to avoid excessive interference under the guise of action taken against “hate speech”, where such charges are brought for a mere criticism of the Government, State institutions and their policies and practices” (see Mariya Alekhina a.o. v. Russia and our blog on the Pussy Riot case).
The judgment in Savva Terentyev v. Russia confirms the strict scrutiny by the ECtHR of the domestic courts’ findings in cases of hate speech related to political speech or debate on issues of public interest. While the domestic courts found that the statements at issue did not allow for any ambiguous interpretation of its content and meaning, the ECtHR itself comes to another interpretation. According to the ECtHR, the blog showed Terentyev’s
“emotional disapproval and rejection of what he saw as abuse of authority by the police and conveys his sceptical and sarcastic point of view on the moral and ethical standards of the personnel of the Russian police. Seen in this perspective, the statements in question can be understood as a scathing criticism of the current state of affairs in the Russian police and, in particular, the lack of rigour in the recruitment of their personnel” (§ 71).
In other cases the ECtHR found that some statements were at least “contradictory and ambiguous” in order to accept the domestic courts’ findings of incitement to violence (Zana v. Turkey), or it considered that the comments in question “did not include sophisticated metaphors” as they were “manifest expressions of hatred and blatant threats to the physical integrity of the insulted person” (Delfi AS v. Estonia). In Savva Terentyev v. Russia the ECtHR applies another reading and interpretation of the statements at issue, neutralizing their incitement character by qualifying them as a “provocative metaphor” and as an “emotional appeal to take measures with a view to improving the situation”, also referring to the “sceptical and sarcastic” view expressed in the statements. However, like in other cases, the ECtHR moreover emphasizes that the statements cannot be looked at in isolation, and that it is crucial to determine whether or not the statements run the risk of effectively inciting to hatred or act of violence or can be regarded as likely to exacerbate an already explosive situation in the region concerned(see e.g. Zana v. Turkey and Leroy v. France). In Savva Terentyev v. Russia the ECtHR discerns no elements, either in the domestic courts’ decisions or in the Government’s submission, which would enable it to conclude that Terentyev’s comment had the potential to provoke any violence with regard to the Russian police officers, thereby posing “a clear and imminent danger” which required his criminal prosecution and conviction (see also Gül and Others v. Turkey, Kılıç and Eren v. Turkey; Erbakan v. Turkey and Stomakhin v. Russia).
This approach by the ECtHR, applied on internet comment and “hate speech”, integrates the principles enshrined in the 2012 Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (also referred to in the judgment’s overview of “relevant international instruments materials”, § 34). According to this UN report the following elements are essential when determining whether an expression constitutes incitement to hatred:
“real and imminent danger of violence resulting from the expression; intent of the speaker to incite discrimination, hostility or violence; and careful consideration by the judiciary of the context in which hatred was expressed (..). Accordingly, any contextual assessment must include consideration of various factors, including the existence of patterns of tension between religious or racial communities, discrimination against the targeted group, the tone and content of the speech, the person inciting hatred and the means of disseminating the expression of hate. For example, a statement released by an individual to a small and restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website (..)”
As Savva Terentyev v. Russia is the first judgment of the ECtHR applying explicitly and substantially the “clear and imminent danger”-test with regard to alleged hate speech in a blog posted on the internet, the importance and the impact of this unanimous finding by the ECtHR of a violation of Article 10 ECHR cannot be underestimated for future cases on internet-related hate crime.