Sokolovskiy v. Russia: criminal conviction for religious ‘hate speech’ violated the right to freedom of expression of a blogger

by Dirk Voorhoof

1. – Introduction

In its judgment of the 4^th June 2024 in the case of Sokolovskiy v. Russia the European Court of Human Rights (ECtHR) dealt with the issue of religious hate speech as a criminal offence interfering with the right to freedom of expression and information under Article 10 ECHR (see also Lenis v. Greece and Tagiyev and Huseynov v. Azerbaijan). The ECtHR found that the sanctions imposed on a blogger for offending the feelings of religious believers and inciting hatred toward a social group in a series of video messages had breached the blogger’s right to freedom of expression. The ECtHR ruled unanimously that the criminal prosecution and conviction of the blogger constituted a disproportionate interference that was not necessary in a democratic society, as the interferences with the blogger’s right were not pertinently justified by the domestic judicial authorities.

2.- Summary of the facts

The case concerns the prosecution of Ruslan Gennadyevich Sokolovskiy, a content-creator and blogger. At the relevant time, his YouTube channel had about 470,000 subscribers. He was convicted for a series of videos posted on YouTube on a variety of subjects: the videos contained Sokolovskiy’s comments on a ban of an atheist group from a social network in the Chechen Republic, comments on hate mail he had received from religious believers and his criticism of the Russian Orthodox church. He also made statements questioning the existence of Jesus and the Prophet Muhammad. One of the videos showed Sokolovskiy playing Pokémon Go in a church. He was prosecuted and convicted under the provisions of the Russian Criminal Code for the offences of public actions insulting religious beliefs and incitement to hatred or enmity. The Russian courts took the view that the videos in question constituted extremist acts aimed at inciting hatred or hostility towards individuals targeted for belonging to ethnic, religious or social groups. Sokolovskiy was sentenced to three and a half years’ imprisonment, suspended, on two-year probation. The videos were also ordered to be removed from the internet.

3.- Application and TPI

In his application to the ECtHR Sokolovskiy argued that, while inflammatory, his videos neither intended to incite nor resulted in incitement to violence or hatred. In particular he complained that the national courts interpreted his statements – which he claims were critical remarks on numerous topical issues – as being extremist and insulting towards people of faith. He submitted that the statements in question, while having in part been expressed in a highly polemical form, were of public interest. He also referred to the findings of the ECtHR in the cases Tagiyev and Huseynov v. Azerbaijan, Savva Terentyev v. Russia, Stomakhin v. Russia and Mariya Alekhina and others v. Russia (Pussy Riot), claiming that the interferences with his right to freedom of expression were in breach of Article 10 ECHR.

A third-party intervention (TPI) by the European Centre For Law and Justice submitted that the jurisprudence of the ECtHR on the matter of freedom of expression and religious hate speech was unstable and incoherent and it requested the ECtHR to further clarify the criteria in balancing the right to freedom of expression and freedom of religion. It also argued that the ECtHR was to respect a broad margin of appreciation in favour of the defendant State and not to adjudicate the case through the eyes of the West, but to take in consideration the morals and culture in Russia.

ARTICLE 19 together with the Human Rights Centre of Ghent University, also submitted a third-party intervention to the ECtHR insisting on the difference between prohibitions on blasphemy and insult of a religion (which are not allowed under international human rights law) and incitement to hatred, hostility and violence (which States are obliged to prohibit and prosecute under international human rights law). The TPI invited the ECtHR to declare that the criminalisation of religious insult in order to protect the feelings of believers, without incitement to discrimination, hostility or violence, was in breach of Article 10 ECHR.

4.- The Court’s judgment

In its judgment of 4 June 2024 the ECtHR first confirmed that the abuse clause of Article 17 ECHR, eventually annihilating Sokolovskiy’s protection under Article 10 ECHR, can only be applied on an exceptional basis and in extreme cases. This means that Article 17 can only be applied where it is immediately clear that the disputed statements sought to deflect the right to freedom of expression from its real purpose and were obviously contrary to the values of the ECHR. The ECtHR found that Sokolovskiy’s comments, although they could be considered by part of the public as crude, did not reach a degree of virulence to justify the application of Article 17 ECHR (see also Perinçek v. Switzerland). Hence the ECtHR dismissed the defendant State’s argument as if Sokolovskiy’s application was inadmissible ratione materiae in application of Article 35 § 3, a) and § 4 of the Convention.

While the ECtHR accepted that the interference with Sokolovskiy’s right to freedom of expression was prescribed by law and aimed at protecting the public order, morals and the rights of others, it found ultimately that his conviction by the Russian courts was not necessary in a democratic society. The ECtHR recalled that the simple fact that a remark may be perceived as offensive or insulting by certain (groups of) individuals does not mean that it constitutes ‘hate speech’. While such feelings are understandable, they alone cannot determine the limits of freedom of expression. Offensive language may not be considered as protected speech if it amounts to gratuitous denigration, but the use of vulgar expressions in itself is not decisive in assessing an offensive expression, because it can very well be used for purely stylistic purposes. Style is part of communication and is protected in the same way as the substance of the ideas and information expressed.

The ECtHR in particular referred to the fact that the national courts relied essentially, on the statements of the two prosecution witnesses, one of whom was absent at the hearing while the identity of the other was kept secret, as well as on the conclusions of a multidisciplinary expertise team, commissioned by the investigator. The ECtHR found that the domestic judges had not analysed Sokolovskiy’s statements in the light of the content of the videos as a whole and they had not examined the context in which the videos were created either. They limited themselves to reproducing in their decisions, based on the aforementioned expert conclusions, short sentences or expressions taken out of their immediate context. Nor was any attempt made to establish whether Sokolovskiy’s statements, even those formulated in harsh and vulgar terms, were part of a debate of general interest or could be justified by a style inherent to his activity as a blogger oriented towards a young audience. The ECtHR observed that Sokolovksiy’s defence had not been taken in consideration by the domestic courts. By not respecting the equality of arms principle it found that Sokolovskiy was deprived of the procedural protection which he should have enjoyed under the ECHR.

Finally, there were no indications that the videos contained any calls for illegal or violent acts and the ECtHR recalled that the containment of a mere speculative danger, as a preventive measure to protect democracy, cannot be considered as responding to a ‘pressing social need’. It also noted that the domestic courts did not examine whether Sokolovskiy’s statements were of a gratuitously offensive nature for religious beliefs, or if they incited disrespect or hatred towards the Orthodox Church. The ECtHR concluded that the domestic courts did not apply standards consistent with the principles set out in Article 10 ECHR and therefore did not provide ‘relevant and sufficient’ reasons to justify the interference in question. There has therefore been a violation of Article 10 ECHR.

5.- Comment

The judgment confirms that the application of the abuse clause of Article 17 ECHR in cases dealing with the right to freedom of expression and information can only be applied on an exceptional basis and in extreme cases. It hereby reiterated the approach by the Grand Chamber in Perinçek v. Switzerland, in which the ECtHR also found that Article 17 can only be invoked ‘if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention’ (Perinçek v. Switzerland, § 114). In Sokolovskiy v. Russia the ECtHR refers to some examples in which Article 17 ECHR has been applied such as in cases of Holocaust denial, the justification of a pro-Nazi policy, the association of all Muslims with serious acts of terrorism or the qualification of Jews as the source of all evil in Russia (see also Delfi AS v. Estonia, § 136). The decisive points when assessing whether statements are removed from the protection of Article 10 by Article 17 are whether the statements are directed against the Convention’s underlying values, for example by stirring up hatred or violence, and whether by making the statement, the author attempted to rely on the ECHR to engage in an activity or to perform acts aimed at the destruction of the rights and freedoms laid down in it (see also Lenis v. Greece, § 39 and Roj TV A/S v. Denmark, §§ 30-38). The ECtHR is of the opinion that the statements by Sokolovskiy are not comparable in terms of virulence with the statements for which it previously applied Article 17 ECHR (for another recent example see ECtHR 8 July 2024, Gümüş v. Türkiye, §§ 7 and 10). As we have argued before, the application of the abuse clause of Article 17 ECHR in cases of freedom of expression is indeed to be kept to a very strict minimum, while it would be preferable not at all to apply Article 17 in such a context and to scrutinise the justification of any interference with the right to freedom of expression under the three-step test of Article 10 § 2 ECHR.[i]

On the merits of the application the judgment focuses on the question of how offending, denigrating or insulting speech becomes a form of ‘hate speech’ as a criminal offence, when inciting hatred, hostility, discrimination or violence. In its recent key-theme document on Article 10 and hate speech the ECtHR stated : ‘Hate speech does not have a clear universal definition, either in international human rights law or in relevant academic writings. The Court itself has not adopted any exhaustive definition of the term and, instead, has approached the concept and scope of hate speech on a case-by-case basis. The Court has regularly referred in this regard to European and international soft law instruments, including Recommendation No. R (97) 20 of the Committee of Ministers to member states on “hate speech” and General Policy Recommendation No. 15 on Combating Hate Speech, adopted by the European Commission against Racism and Intolerance on 8 December 2015 (..). The Court has, furthermore, noted that it is not for it to rule on the constituent elements of the offence of incitement to hatred, violence and discrimination. It is primarily for the national authorities, in particular the courts, to interpret and apply domestic law. The Court’s role is rather to review under Article 10 the decisions that domestic courts deliver pursuant to their power of appreciation. In so doing, it must satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (Belkacem v. Belgium (dec.), 2017, § 29).’

In Sokolovskiy v. Russia the ECtHR remains on this track in approaching the concept and scope of ‘hate speech’, while relying extensively on its earlier case law on this matter. Maybe not as ‘clearly and unequivocally’ as the Article 19 and Human Rights Centre interveners had suggested, the Court’s judgment confirms that prohibitions on ‘religious insult’ to protect the ‘feelings’ of religious believers through the criminal law, are incompatible with Article 10 ECHR where there is no incitement to discrimination, hostility or violence. The Court does find indeed that by not substantiating that the video messages of Sokolovskiy incited to hatred or violence the interferences complained of were not sufficiently justified by the Russian judiciary. The Court emphasises the importance of considering thoroughly the context and the possible impact of the offensive, insulting or aggressive words at issue, in order to make the distinction between protected speech under Article 10 and speech that cannot be tolerated in a democratic because it amounts to incitement to hatred, discrimination, violence or intolerance.

The Court seems to leave a narrow opening to declare offensive speech without incitement to hatred, hostility, discrimination of violence, as not being protected under Article 10 ECHR. Indeed, the Court considers that offensive statements may fall outside the protection of freedom of expression when they result in wanton denigration : ‘Le langage offensant peut échapper à la protection de la liberté d’expression s’il équivaut à un dénigrement gratuit’. Also in other cases the ECtHR has accepted that insulting or offensive speech that amounts to ‘wanton denigration’ can justify criminal prosecution and criminal conviction. However, in such cases where it referred to the concept of ‘wanton denigration’ (as e.g. in Gaspari v. Armenia (no. 2), Kaboğlu and Oran v. Türkiye and Uj v. Hungary), the Court did not find that in itself a sufficient reason to justify the interference with the right to freedom of expression. Wanton denigration, even of a vulgar nature, of a religion or of (a group of) persons because of their religion is not in itself a sufficient basis to make offensive speech a criminal offense (see also Tagiyev and Huseynov v. Azerbaijan).

However, some ambiguity remains in the Court’s reasoning in Sokolovskiy v. Russia, as the Court noted that the domestic courts had not examined whether Sokolovskiy’s statements were of a gratuitously offensive nature for religious beliefs, or if they incited disrespect or hatred towards the Orthodox Church. With this consideration the ECtHR leaves a possibility that if these elements had been examined by the domestic authorities and if they had (pertinently) found that the statements were of a gratuitously offensive nature for religious beliefs, or incited disrespect towards the Orthodox Church, the interference with Sokolovskiy’s right might have been accepted under the scope of Article 10 § 2 ECHR. In other cases the ECtHR held that ‘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’ (Féret v. Belgium, Vejdeland and Others v. Sweden, Dmitriyevskiy v. Russia, Ibragim Ibragimov and Others v. Russia and Atamanchuk v. Russia). Such considerations and findings create a blurred concept of ‘hate speech’ as a justification for interferences with the right to freedom of expression.

The focus ought to be on the whole context of the impugned statements, the public interest on the matter discussed, the proportionality of the sanction and its chilling effect, including the intention of the applicant, the characteristics of the medium involved and of the applicant, and the impact of the statements in determining whether they pose a ‘clear and imminent danger’ in terms of incitement to hatred, discrimination or violence against a person or a group of persons (Savva Terentyev v. Russia, § 84). The containment of a mere speculative danger cannot be seen as a ‘pressing social need’ (Vajnai v. Hungary, § 55). The insulting, ridiculing or slandering character of the impugned statements expressing disrespect towards a religion or a religious institution should not be a sufficient justification for criminal prosecution and criminal conviction (Tagiyev and Huseynov v. Azerbaijan, § 47-48), as such an approach creates a situation where the State’s discretion to prosecute for such offences becomes too broad and potentially subject to abuse through selective enforcement (Savva Terentyev v. Russia, § 85). Interferences based on criminal law can only be justified in cases where particular statements, situated in their context, constitute a clear and imminent danger in terms of incitement to (religious) hatred, discrimination, violence or hostility.

[i] Hannes Cannie and Dirk Voorhoof, “The Abuse Clause and Freedom of Expression under the European Human Rights Convention: an Added Value for Democracy and Human Rights Protection?”, Netherlands Quarterly of Human Rights 2011/1 (vol. 27), 54-83, https://journals.sagepub.com/doi/abs/10.1177/016934411102900105 and Dirk Voorhoof,” “Hate speech”, radicalisering en het recht op expressievrijheid. Waarom artikel 17 EVRM (misbruikclausule) geen revival verdient”, Auteurs & Media 2016/1, 4-18, https://www.jurisquare.be/fr/journal/am/index.html . See also Natalie Alkiviadou, “Article 17: Free Speech and the Guillotine. The Countdown to Lenis v Greece”, International Journal for the Semiotics of Law, August 2024, (1) Article 17: Free Speech and the Guillotine the Countdown to Lenis v Greece (researchgate.net).