Case Summary and Outcome

The Third Section of the European Court of Human Rights (ECtHR) held that Russia violated Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to privacy) when authorities failed to effectively investigate the non-consensual dissemination of LGBTI individuals’ private information on homophobic social media platforms. The case involved applicants who had their personal data, sexual orientation, and photographs published on social media by homophobic groups, exposing them to harassment and generating fear for their safety. The Court found that Russian authorities demonstrated procedural failures by delaying investigations, neglecting to secure evidence, failing to consider homophobic motives despite prima facie indications, and ultimately allowing the statute of limitations to expire without identifying perpetrators. The ECtHR emphasized that sexual minorities require special protection as particularly vulnerable groups, reinforcing that differences in treatment based on sexual orientation require “particularly convincing and weighty reasons” as justification.

Facts

The case concerns two applications. In the first application, Yevgeniy Bazhenov was in a same-sex marriage with Aleksandr Semkin. They owned a board game store. In May 2020, Bazhenov and Semkin posted a message on their VKontakte (VK) business account expressing dedication to customers regardless of sexual orientation.  On May 26, 2020, a homophobic group published their names, photographs, and shop addresses, identifying them as “openly gay men in a same-sex marriage.” [para. 6] The same day, an activist named Timur Bulatov reposted this information, calling for negative comments against the “sexual perverts.” Bazhenov filed criminal complaints for the privacy breaches and incitement of hatred.

Despite persistent follow-up efforts, the Moscow Investigative Committee failed to properly investigate the complaints. It claimed to have sent response letters that Bazhenov denied receiving. Over the course of seventeen months, the investigators repeatedly refused to open a criminal case, with each refusal being overturned by the prosecutor’s office as premature or unlawful. The investigation included questionable practices, such as asking whether the applicants were under psychiatric supervision. The investigators failed to identify those responsible despite being instructed to do so. By May 2022, the statute of limitations expired. The case occurred against a backdrop of deteriorating legal protections, culminating in the Russian Supreme Court declaring the “LGBT international public movement” an extremist organization in November 2023—making participation punishable by up to six years of imprisonment. 

The second application concerned Artem Lapov, a homosexual lawyer in a same-sex marriage, who provided legal assistance in hate crime cases involving LGBTI individuals. Because of this, his name regularly appeared in the media between 2015 and 2022. On May 24, 2020, his personal information appeared on the Russian social media platform VK in comments titled “Address list of LGBT activists, paedophiles and other LGBT perverts,” revealing his full name and registered address where his parents still lived. He promptly filed a criminal complaint with the Moscow Investigative Committee on May 26, 2020, alleging breach of privacy and arguing that the publication of his private data put pressure on his professional activities protecting LGBTI rights. 

The Investigative Committee repeatedly failed to properly investigate his complaint. After receiving no information about his complaint, Lapov challenged this inaction in court. Though his initial challenges were rejected, the Simonovskiy District Court eventually upheld his complaint in September 2021, ordering a proper investigation. Despite this ruling, the investigation was characterized by procedural delays and ineffective actions. The investigator refused to open a criminal investigation twice, with each refusal later overturned by the prosecutor’s office as unlawful and unfounded. By May 2022, the statute of limitations for prosecution under Article 137 § 1 of the Criminal Code expired, effectively preventing any justice for Lapov. Lapov remained unaware of any outcome from the ordered investigation, as he was never notified of any procedural decisions. During 2022, Lapov and his husband left Russia and currently reside in a European country as refugees.

Aggrieved, Bazhenov, Semkin, and Lapov filed applications before the European Court of Human Rights (ECtHR), claiming that domestic authorities failed to fulfill their positive obligation to protect their private life and prevent discrimination by inadequately responding to homophobic disclosures of their sexual orientation on social media. 

Decision Overview

The Third Section of the European Court of Human Rights delivered the decision. The primary issue before the Court was whether Russian authorities failed to adequately protect LGBTI individuals’ private data and investigate the homophobic motives behind privacy breaches, thus violating Article 14 (non-discrimination) in conjunction with Article 8 (privacy) of the European Convention on Human Rights (ECHR).

The applicants contended that the unauthorized disclosure of their private information, particularly their sexual orientation, on homophobic social media accounts exposed them to heightened risks of harassment and generated fears for their safety, their relatives’ well-being, and their professional activities. They argued that domestic authorities failed to provide adequate protection through an effective criminal investigation, particularly considering the homophobic nature of the perpetrators’ actions. The applicants claimed that the authorities conducted only superficial inquiries and refused to open criminal cases due to bias against the LGBTI community. They referred to the Supreme Court’s November 30, 2023, decision, labeling the “international LGBT public movement” as extremist, which prohibited LGBT activism and led to increased persecution of the LGBT community, as evidence of this systematic bias. Third-party interveners supported these contentions, noting that since the 2023 court decision, there had been increased police raids on gay establishments, more self-censorship, convictions for displaying rainbow flags, blocking of LGBTI websites, and more frequent hate crimes against LGBTI people.

Following its expulsion from the Council of Europe, Russia ceased to be a party to the Convention on 16 September 2022 and did not participate in the present proceedings or submit any observations.

At the outset of its analysis, the Court examined the allegations regarding the insufficient protection of private data and the failure to investigate the homophobic motives behind privacy breaches. It determined that studying the complaint under Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to privacy) was most appropriate, given the homophobic nature of the groups where the applicants’ private data was disseminated and the general attitude toward the LGBTI community in Russia.

The ECtHR, referencing Molla Sali v. Greece, 2018; Beizaras and Levickas v. Lithuania, 2020; and Axel Springer AG v. Germany, 2012, highlighted key principles regarding discrimination under Article 14 of the ECHR, emphasizing that differences in treatment based on sexual orientation require “particularly convincing and weighty reasons” as justification, with States having a narrow margin of appreciation. [para. 67] It acknowledged that the non-consensual disclosure of the applicants’ private data, including names, sexual orientation, same-sex marriages, and photographs, on social media clearly fell within the scope of protection of the right to private life under Article 8  of the ECHR. 

Next, the Court observed that Russian law provided criminal remedies against the unlawful dissemination of private information and recognized hostility toward social groups as an aggravating circumstance. Given that the applicants’ data was spread in homophobic public groups aimed at intimidating LGBTI activists and inciting hatred, the ECtHR found that domestic authorities were confronted with prima facie indications that the acts against the applicants were driven by discriminatory attitudes against the LGBTI community. This, the Court opined, required an effective investigation capable of uncovering the homophobic motives behind the privacy breaches. Instead, it found significant procedural failures: the investigative body, for example, initially refused to consider the applicants’ criminal complaints, forcing them to challenge this inaction several times in court, resulting in inquiries beginning only 9-16 months after complaints were filed.

The Court noted with concern that investigators failed to take obvious investigative steps necessary to secure evidence—such as promptly interviewing the applicants, identifying perpetrators, or properly sending requests to the social network VK. Particularly troubling was an investigator’s unexplained request asking about whether Bazhenov and Semkin were under psychiatric or narcological supervision. It also noted that investigative authorities refused to open criminal proceedings without waiting for responses to their information requests and failed to consider potential homophobic motives, despite the applicants explicitly raising them.

The ECtHR ultimately concluded that Russian authorities failed to discharge their positive obligations to respond adequately to the non-consensual dissemination of the applicants’ private data and to effectively investigate whether this dissemination was motivated by homophobic attitudes. The Court, referring to its previous jurisprudence in cases such as Beizaras and Levickas v. Lithuania, Association ACCEPT and Others v. Romania, and Nepomnyashchiy and Others v. Russia, emphasized that gender and sexual minorities require special protection as particularly vulnerable groups—something Russian authorities disregarded.

Considering the facts and arguments outlined above, the ECtHR established that the applicants suffered discrimination based on sexual orientation. Thus, the Court unanimously found that Russia breached Article 14 taken in conjunction with Article 8 of the ECHR. It awarded each applicant €7,000 in non-pecuniary damages.