Ilareva and Others v. Bulgaria: First finding of discrimination by association (procedural) for unremedied online attacks on human rights defenders

By Margarita S. Ilieva

On 9 September 2025, the European Court of Human Rights (the Court), in Ilareva and Others v. Bulgaria for the first time applied the concept of discrimination by association to human rights defenders (HRDs) targeted by hate speech due to their activism. It found a procedural breach because of a stunted investigation into the hate speech, which produced no outcome and ignored the discriminatory nature of the abuse. Yet, the Court disregarded the investigators’ own apparent bias against the HRDs, while such bias is arguably symptomatic of the systemic issue of institutionalised retaliation against HRDs advocating for refugees and migrants.

After summarising the facts and the judgment, I will discuss its precedential value, as well as its gaps against the backdrop of what the CoE Human Rights Commissioner has just termed a crisis facing European HRDs, including official stigmatisation and unremedied violent harassment.

Facts

The applicants were human rights and humanitarian activists, advocating pro bono or professionally for refugees and minoritised groups. Being publicly visible due to their advocacy and associated accolades, they were targeted by Facebook users who sadistically threatened their lives using virulent slurs explicitly because of their association with refugees and migrants. In spite of complaints about criminal hate speech, incitement by association and death threats, the applicants received no protection from the authorities. A pro forma investigation achieved no results while repeatedly denying the victims standing to participate. Stalling and repeatedly suspending the proceedings, the prosecutors ended up concluding that no crime had taken place.

Judgment

The Court found the investigation to be flawed. The authorities ‘issued mostly procedural decisions, not making any credible attempts to investigate’. They consistently found that the applicants had no standing to challenge relevant decisions, interpreting the offence as having no victims. This was incompatible with the requirement for effective victim participation. (§§133, 136)

Furthermore, the scope of the investigation was ‘unreasonably and artificially restricted’, excluding all but one of the alleged offences despite prosecutorial findings that more crimes were committed. (§137)

The Court dismissed the prosecutors’ repeated claims that the law governing disclosure of digital traffic data from Facebook was an obstacle to the investigation preventing them from identifying the perpetrators. The Court found that the provisions were no obstacle to the authorities complying with their Convention duties. (§139)

Those duties ‘apply as much online as they do offline’. However, the authorities did not ‘seriously attempt’ to gather evidence, disregarding ‘obvious’ lines of inquiry. (§142) They did not pursue any of the various methods, pointed out by the applicants, to identify the actual individuals behind the profile names of offensive posts’ authors. The Court pointed out that the authorities could have requested from Facebook the personal data provided by the account owners at registration (names, addresses, occupation, emails and/or telephones) and followed up on leads. (§143)

The Court noted that the authorities ‘never attempted’ to obtain evidence from identified perpetrators’ devices. (§144) One perpetrator was not ‘properly questioned’, nor were ‘relevant conclusions drawn from his elusive responses’. The authorities did not try to establish the owner and IP address of the internet site this man ran. Regarding the other identified individual (who had left the country), the authorities ‘did not show that they even considered seeking international cooperation’. (§144)

However, as the ‘explicit and violent’ hate speech targeting the applicants was rapidly and repeatedly shared on social media, reaching the applicants, who were clearly identified and exposed in public, their work addresses easily identifiable, while the perpetrators were anonymous, it was in the public interest to prosecute the crimes. Significantly, the Court held that such hateful language could not be equated with ‘expression of a negative opinion’, implying it was not to be protected. (§140)

Importantly, while the applicants argued that the harassment against them was discriminatory, based on hatred against refugees, the authorities kept ignoring this. (§138) The Court termed this ‘regrettable’ and ‘in itself’ an issue of adequacy. (§141)

The Court highlighted the context of heightened tensions in society and recurring public hate speech against refugees/ minoritised people, the groups the applicants’ activities were associated with. The Court integrated in that context a later attack (outside the scope of the application), in which one of the applicants was physically assaulted in the street shortly after he had spoken on television against anti-immigrant hate speech. (§141)

The Court explicitly found that the prosecutors ‘downplayed the seriousness’ of the crimes in this context. (§141)

In conclusion, the authorities’ response was ‘insufficient’ resulting in ‘virtually’ no legal consequences for hate speech by association against the applicants as HRDs (the Court avoided the term HRD).(§145) Article 8 in conjunction with Article 14 ECHR was breached. (§146)    

Commentary

Strengths

Ilareva is a precedent expanding the concept of discrimination by association. It is the first ECtHR judgment establishing discrimination by association against HRDs due to their work. It is one of only 5 ECtHR judgments finding discrimination by association, the previous ones concerning family members (Molla Sali v. Greece [GC], 2018; Guberina v. Croatia, 2016, § 78; Weller v. Hungary, 2009, § 37) and intimate partners (Škorjanec v. Croatia, 2017, § 55).

The Court has found, earlier, that (activists from) LGBTI community NGOs were discriminated against (for example, Aghdgomelashvili and Japaridze v. Georgia, Women’s Initiatives Supporting Group and Others v. Georgia, Association ACCEPT and Others v. Romania), however, that was not by association but based on their community belonging. Conversely, in Ilareva, none of the targeted HRDs were community representatives or associated with community organisations. As majority civic activists, they were associated with vulnerable groups solely through their humanitarian/ human rights advocacy. Ilareva advances the case law by acknowledging this association for the purposes of finding discrimination. 

Additionally, Ilareva is the first judgment concerning: a) hate speech by association b) attacks on HRDs fueled by anti-immigrant bias c) online harassment/ discrimination by association.

Its significant holdings include:

• A procedural violation of Article 8 j. Article 14 due to the officials ignoring the explicit bias in the verbal attacks against the applicants. 
• It is in the public interest, and not only in the legitimate interests of the victims, to prosecute explicit, violent viral hate speech against publicly visible HRDs.
• Such hateful language is not ‘expression of a negative opinion’, meriting no protection that authorities could rely on to deny due protection to its targets.

Gaps

The Court withheld a finding, and even a discussion, of a substantive violation of Article 14 despite the prosecutors’ barely concealed bias against the applicants. The Court, relying on its being ‘master of the characterisation’, reduced the applicants’ allegations to ‘no effective investigation’ under Article 8 with Article 14. (§96)

And yet, the Court established that the authorities had ‘downplayed the seriousness’ of the applicants’ victimisation (i.e., they had made it appear less important than it really was). This very wording implies recognition of bias.

The Court further made explicit findings regarding the authorities’ conduct that amounted to establishing their unwillingness to investigate, tantamount to a deliberate omission. They made no ‘credible attempts to investigate’, ‘unreasonably and artificially restricted’ the investigation, did not ‘seriously attempt’ to gather evidence, disregarded ‘obvious’ lines of inquiry, including methods, specifically pointed out by the applicants, ‘never attempted’ to obtain specific evidence, did not ‘properly question’ an individual, ‘did not try’ to establish basic facts about his website, and ‘did not […] even consider seeking international cooperation’. They consistently failed to engage with the applicants’ assertions that the crimes were discriminatory, making no pronouncement on that. All those failures resulted in ‘virtually’ no legal consequences for the perpetrators, the Court found.

The sum of such sustained unreasonable and contrived omissions in the face of the applicants’ persistent articulation of the steps to be taken arguably amounted to a tacit refusal to investigate and therefore, to facilitation of impunity. Such a stance is by definition biased, i.e. discriminatory, as it departs from the role of investigators and prosecutors, which is to investigate and prosecute.    

The Court’s withholding of a discussion of the authorities’ apparent bias against the applicants demonstrated by clear unwillingness to protect them is also inconsistent with earlier case law. For instance, in Association ACCEPT and Others v. Romania, the Court found that the authorities had shown their own bias against the LGBT community by failing to investigate whether the verbal abuse against the applicants was a homophobic crime. (§126) Because of this, it found a violation of Article 14 j. Article 8. (§127-8)

The Court did not acknowledge the well-documented European pattern of official negative stereotyping and intimidation of HRDs advocating for refugees and migrants. A number of EU countries criminalise solidarity with people on the move, using political prosecutions to harass and deter HRDs, and create a hostile environment for migrants. This has been denounced by the CoE Human Rights Commissioner (specifically pointing out hostile and stigmatising rhetoric by officials and others, as well as official inaction to address violence and threats against HRDs), the UN Special Rapporteur on the situation of human rights defenders, OSCE, the Red Cross, and Amnesty International, among many others. HRDs are targeted by official and media smear campaigns (for example, in Greece, as documented by the CoE Human Rights Commissioner, OMCT, HRW, ICJ).

The regionwide pattern of official reprisals against HRDs advocating for refugees/ migrants is part of what former ECtHR Presidents have termed ‘gradual suffocation’ of civic space through stigmatisation and silencing, including liquidation, of CSOs under ‘foreign agent’ laws, against which, they argue, ECtHR interim relief orders, among other structural tools, are ‘fully justified’ (as in Ecodefence and Others v. Russia).

The Court should have recognised that pervasive context of institutionalised HRD stifling, and scrutinised the officials’ conduct in Ilareva for anti-HRD, i.e. racist by association, bias. The chilling effect sought through smear campaigns and judicial harassment of pro-migrant HRDs is also achieved by leaving such HRDs unprotected while private hate-motivated individuals (verbally) assault them. Unless prepared to accept that Bulgarian prosecutors are dysfunctional in general, the Court should have examined whether, in Ilareva, they were selectively dysfunctional, treating the applicants less favourably as victims. It should have considered such differential treatment denying the applicants’ victimhood not only as arguable substantive discrimination, but also as revictimisation. Beleaguered European HRDs have a right to expect that.