August 29, 2019
On 16 July, the Court delivered its judgment in the case of Zhdanov and others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. In this judgment, the Court found a violation of Article 6 § 1 (access to court) and of Article 11 (freedom of assembly), alone and in conjunction with Article 14 (prohibition of discrimination). This blog post is only concerned with the Article 11 and 14 aspects of the case. After setting out the facts, I will highlight some of the missed opportunities in the Court’s judgment from the perspective of the third party intervention we, as the Human Rights Centre of Ghent University, submitted in this case (in particular as far as the assessment of the legitimate aim of the interference is concerned). In addition, I will discuss a quite peculiar aspect of the case: the decision to declare the part of the complaint lodged by LGBT activist Nikolay Alekseyev inadmissible as an abuse of the right of application because of offensive statements he made about the Court and its judges on social media. In line with the (partly) dissenting judges, I will argue that this is problematic from the viewpoint of both freedom of expression and access to the Court.
The applicants are three Russian LGBT organisations and four individuals who are the founders or presidents of these organisations. The latter include Nikolay Alekseyev, a name familiar to Strasbourg watchers as he was the driving force behind two earlier violation judgments relating to freedom of assembly for LGBT organisations in Russia (see here and here). The Zhdanov case concerns the refusal by domestic authorities and courts of the applicant organisations’ registration requests because of formal irregularities and, more importantly, because their aim was to promote LGBT rights. They held in particular that the organisations’ aims could destroy the moral values of society, could lead to a decrease in the population, could jeopardise the constitutionally protected institutions of family and marriage and could encourage social and religious hatred and enmity.
Under Article 11, the Court examines whether the interference with the applicants’ rights complied with the § 2 test. Easily concluding that the interference was “prescribed by law”, the Court continues to examine whether it served a “legitimate aim”. The Court in turn addresses the following legitimate aims invoked by the Government: the protection of morals, the protection of national security and public safety, the protection of the rights and freedoms of others (in particular an alleged right of the majority “not to be confronted with any display of same-sex relations or promotion of LGBT rights or with the idea of equality of different-sex and same-sex relations”) and the prevention of social and religious hatred and enmity. Building upon the 2017 Bayev and Others v. Russia judgment, in which the Court intensively scrutinized the legitimate aims invoked to justify the so-called gay propaganda law (discussed earlier on this blog), the Court quite easily finds that the first three invoked aims did not qualify as a “legitimate aim” in the sense of Article 11 § 2. Quite remarkably, the Court rules differently as far as the fourth invoked aim is concerned:
“Lastly, as regards the aim of preventing social or religious hatred and enmity incited by the activities of LGBT associations and which might, in the domestic authorities’ opinion, lead to violence, this may correspond to the legitimate aim of the prevention of disorder. The Court accepts that social or religious hatred and enmity represents a danger for the social peace and political stability of democratic States […] and is likely to lead to violence […]. It therefore accepts that the declared aim of preventing such hatred and enmity corresponds to the legitimate aim of prevention of disorder […] and will proceed on the assumption that the contested measures pursued that aim.” (§ 160)
Using this legitimate aim as the basis for its proportionality analysis, the Court however rules that the interference was not “necessary in a democratic society”. As the invoked legitimate aim purportedly relates to the risk “that the applicants might potentially become victims of aggression by persons who disapproved of homosexuality” (§ 161), the Court considers that the authorities should instead have taken “reasonable and appropriate measures to enable the applicant organisations to carry out their activities without having to fear that they would be subjected to physical violence by their opponents” (§ 164). Reaffirming principles developed in the context of the protection of ethnic minorities against violence (e.g. the case of Ouranio Toxo and Others v. Greece), the Court holds that, rather than “[removing] the cause of tension by eliminating pluralism”, the positive obligations under Article 11 require the State to “ensure that competing groups tolerate each other” (§ 163). The Court thus finds a violation of Article 11.
While the finding of a violation is to be applauded, the manner in which the Court arrives there is regrettable. In recent years, the Court has abandoned its orthodox practice of being rather succinct at the “legitimate aim” stage and focusing almost exclusively on the necessity test, but has instead gone to great lengths, in particular in high profile cases, to smoke out unacceptable motives. The added value of doing so is the “pedagogical” effect that results from altogether disqualifying particular motives from being accorded legitimacy in the eyes of the Convention. This is for instance evidenced by the Court’s bold approach in the already-mentioned Bayev case. Arguably, an explanation for accepting the legitimate aim could have been the fact that the Court thought it had to do so as a prerequisite for inserting its discourse on positive obligations at the necessity stage, even though one is left to wonder why this could not have been done at the legitimate aim stage as well.
In the third party intervention we, as the Human Rights Centre of Ghent University, submitted in this case (which is discussed here), it is instead argued that no aim should be considered as a legitimate one if it is used as a smokescreen for hiding ulterior homophobic or discriminatory purposes. This was clearly the case in the facts underlying the present judgment, so it is quite disconcerting that the Court seemingly treated it as some kind of good faith justification attempt by the Russian government. This is even more striking when read together with the other aims invoked by the government: the clear anti-gay prejudice transpiring therefrom makes any argument that the Russian authorities in fact cared about protecting gay people from hatred and enmity look preposterous.
For the sake of completeness: the Court also finds a violation of Article 14 taken in conjunction with Article 11. Mere reference to its Article 11 findings allows it to hold that there was no “reasonable or objective justification” for the difference in treatment on the grounds of sexual orientation (§ 182). In its succinctness, regrettably, the Court does not engage with the argument raised in our third party intervention that Article 14 encompasses a positive obligation on the State to use all available means to combat homophobia and discrimination on the ground of sexual orientation and to take measures to counteract the societal conclusion of LGBT people – in line with the State’s obligations under international human rights law to promote cultural change in order to realize human rights.
Torturing judges with litres of vodka
Another remarkable aspect of the Zhdanov and Others judgment concerns the decision to declare the complaint by Nikolay Alekseyev inadmissible for abuse of the right of individual application, because he had made offensive statements on the Court and its judges on social media. In reaction to the Court’s rejection of his claims in respect of non-pecuniary damage in the Alekseyev and Others case, he had published comments about the Court and the judges who had adopted the judgment on his Instagram and VKontakte accounts. Paragraph 83 of the judgment provides a good summary of Alekseyev’s statements:
“The Court further observes that the statements about the Court and its judges published on the accounts in question are virulently and personally offensive and threatening. In particular, Mr Alekseyev published the judges’ photographs with such captions as “alcoholic”, “drug addict”, “corrupt”, and “this crone owes me 100,000 euros … God will punish her”. He also called the judges, among other terms, “European bastards and degenerates”, “freaks”, “venal scum” and “idiotic”. He wished that they would “snuff it as soon as possible like dogs”, threatened to “torture [them] … with litres of vodka” and announced that “it [was] time to set fire to the European Court of Human Rights”. He also stated: “We should not have given wenches the right to vote … They should be cooking soup”. These statements clearly exceed the limits of normal, civic and legitimate criticism.”
Despite the fact that the statements were made outside the context of the present case, “Mr. Alekseyev sought to ensure the widest possible circulation of his accusations and insults and thereby provided evidence of his determination to harm and tarnish the image and reputation of the institution of the European Court of Human Rights and its members” (§ 84). After the Court had sent him a letter referring to all his pending applications and warning him that such statements might amount to an abuse of the right of petition, Alekseyev did not withdraw his statements and published new offensive statements about the Court, describing it as “a rubbish heap” and calling its judges “European corrupt scum” and “homophobic”. The Court considered that his conduct constituted “a vexing manifestation of irresponsibility and a frivolous attitude towards the Court” amounting to contempt, which based on some obscure precedent (e.g. The Georgian Labour Party v. Georgia (dec.)) allows the Court declare the case inadmissible for abuse of the right of application.
In their joint partly dissenting opinion, Judges Keller, Serghides and Elósegui are quite critical of this decision. Firstly, they consider that the comments were made in reaction to a separate case, so they do not believe that this jeopardises the integrity of the Court in the case under consideration (§ 2-3). Secondly, they consider that the Court “should be extremely careful not to set a precedent that could have a chilling effect on the active engagement of the public with the Court” (§ 9). They even “fear that this decision could be an invitation to Governments to engage in surveillance of future applicants in the hopes of finding statements that could be offensive to the formation of the Court hearing the case” (§ 14). In this regard, it is worth emphasizing the fact that, in the present case, it was indeed the Russian Government itself that had informed the Court of Alekseyev’s statements (§ 77). Finally, they argue that the Court exists to protect and realise the right of individual application “for all applicants, regardless of their manners or propriety”. In this respect, they even wonder whether the Court itself would not find a violation of the right of access to court (Article 6 § 1) in a case where a domestic court declares a case inadmissible because an applicant has called the judges idiots (§ 17).
While Alekseyev’s statements are indeed quite offensive, I however wonder whether declaring his complaint inadmissible constitutes an appropriate sanction. The situation is for instance quite different from the one in Gross v. Switzerland, which was declared inadmissible by the Grand Chamber for “abuse of the right of application” because the applicant – who had committed suicide before the Chamber judgment was adopted – had taken “special precautions to prevent information about her death from being disclosed to counsel and eventually to the Court in order to stop the latter discontinuing the proceedings in her case” (§ 34). As the challenged behavior in Gross directly impacted the conduct of the proceedings, the sanction of declaring the case inadmissible at least stands in logical connection to it. In the present case, however, there simply does not seem to be such logical connection between behaviour and sanction. In any event, the fact that the applicant engaged in online ranting does not make him any less a victim of a human rights violation. If human rights are there for everyone, including for the criminals and the terrorists, as populists often decry, then they should be there for the ranters as well. The Court should recall that its function is to protect the human rights of its applicants, not to police their manners.
In the few cases in which the Court has hitherto examined this kind of “abuse of the right of application”, the Court has rarely accepted this to be established (it took some HUDOC skills to find a notable exception in the obscurest of cases, Duringer and Others and Grunge v. France). Applying this inadmissibility ground in a high-profile case like the one of Alekseyev therefore does set a precedent, which may give rise to a chilling effect on applicants’ expression, as noted by the dissenters. Perhaps it would be more appropriate if the Court were to introduce a provision in its Rules of Court allowing it to impose fines on applicants in order to address these kinds of offensive statements instead? This would be more in line with the traditional approach to contempt of court in most jurisdictions and would certainly be less intrusive from the viewpoint of freedom of expression and access to the Court.
 Thanks to Stijn Smet for pointing this out.
 Thanks to Corina Heri for the suggestion to juxtapose both cases.
 Thanks to Dirk Voorhoof for an email exchange on this aspect of the case.