Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
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R.B., a woman of Roma origin, filed a complaint with the European Court of Human Rights alleging that the Hungarian authorities failed to adequately investigate harassment and violence aimed at her by demonstrators during an anti-Roma rally, and thus did not meet their positive obligation to protect her private life. The complaint alleged violations of Article 3 (prohibition on torture), Article 14 (prohibition on discrimination), and Article 8 (right to respect for private and family life) of the European Convention of Human Rights. The Court found that there was no violation of Article 3 or Article 14, but there was a violation under Article 8.
R.B. is a woman of Roma origin and a resident of a village of 2800 people, 450 of whom are also of Roma origin. Over a period of several days in March 2011, a civil guard association and two right-wing paramilitary groups organized marches in the Roma neighborhood of R.B.’s village. On the days of the marches, there was a considerable police presence in the village.
On March 10, 2011, the president of the local Roma minority self-governing body informed the police that he and the mayor of the municipality had been threatened by people they did not know. On the same day, four men passed by R.B.’s house while she was outside her home in her garden with her child and several acquaintances. The men yelled, “Go inside, you damned dirty gypsies!” One of the men threatened her and her acquaintances, saying that he would build a house in the Roma neighborhood “out of their blood” and stepped towards the fence swinging an axe in her direction. In April 2011, Ms. R.B. lodged a criminal complaint with the Heves County Regional Police Department under article 176/A (2) of the Criminal Code against unknown perpetrators, alleging the offenses of violence against a member of an ethnic group, harassment, and attempted grievous bodily assault. The police opened an investigation on charges of violent harassment, and later combined it with a complaint from the president of the local Roma minority self-governing body. In July 2011, the police discontinued the criminal harassment proceedings on the grounds that harassment was punishable only if directed against a clearly identified person, and that criminal liability could not be established on the basis of threats uttered in general. However, the police initiated minor offense proceedings on the ground that the alleged conduct was “antisocial.”
On September 14, 2011, a hearing was held for six persons on charges of disorderly conduct, a minor offense. Witnesses, including R.B., identified the six to have perpetrated verbal assaults and threats aimed at Roma persons. R.B. identified one S.T. as the person who said that he would paint the house with her blood. On October 5, 2011, R.B.’s lawyer requested the minor offense proceedings to be stayed due to more serious pending criminal proceedings. On October 7, 2011, the District Public Prosecutor opened a separate investigation into R.B.’s allegations due to a complaint of procedural errors committed by the police. On October 20, 2011, R.B.’s lawyer requested the District Prosecutor to open an investigation into “violence against a member of an ethnic group” under article 174/B (1) of Hungary’s Criminal Code. On November 3, 2011, the prosecutor’s office refused the request because there was no evidence of the requisite element of “use of force.” On February 2, 2012, the police discontinued the investigation into harassment on the grounds that the witnesses failed to substantiate the allegations. The police admitted that one witness confirmed that the threats were made, but that they were not directed at anyone in particular.
On March 21, 2012, the District Prosecutor upheld the decision that “it could not be established on the basis of the witness testimonies whether an [alleged perpetrator] had been armed and whether the threats and insults he had uttered had been directed at the applicant.” [para. 27] On June 1, 2012, Ms. R.B. lodged an application with the district court as a private prosecutor, which was admitted by the district court. However, on November 6, 2012, R.B. withdrew the charges because of fear of reprisals.
Ms. R.B.’s complaint to the ECtHR was on the basis of Article 3 (prohibition on torture), Article 14 (prohibition on discrimination), and Article 8 (right to respect for private and family life) of the ECHR. R.B.’s complaint alleged that she and other members of the Roma minority suffered psychological harm from the anti-Roma protestors. R.B. also stressed that the purpose of the demonstration had been to spread fear among those of Roma descent in her village, and that when the incident had occurred her young child had been with her.
R.B. argued under her Article 8 complaint that the Hungarian authorities failed to “apply relevant . . . measures against the participants of the anti-Roma rallies so as to discourage them from the racist harassment that eventually took place. She also maintained that by failing to properly investigate this incidence of racist verbal abuse, the authorities had neglected their positive obligations.” [ para. 53]
ECHR Articles 3 and 14
The ECtHR determined that the primary issue was whether R.B.’s “treatment at the hands of the protestors constituted ill-treatment within the meaning of Article 3 [of the ECHR]. If it did not, then the issue of whether the respondent Government fulfilled its obligations under that provision taken together with Article 14 does not arise.” [ para. 41] First, the Court reviewed its precedent to establish factors that need to be assessed to establish ill-treatment under Article 3. The Court reiterated that for ill-treatment to fall within Article 3, it “must attain a minimum level of severity.” [para. 43] The determination of minimum is relative and depends on all circumstances of the case, and may include duration, physical or mental effects, age, or sex. The purpose of ill-treatment and the underlying intention or motivation are also taken into account. Furthermore, the Court cited precedent showing that “some types of treatment [were] ‘inhuman’, particularly where it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also ‘degrading’ because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.” (( para. 43, quoting ECtHR, Labita v. Italy, App. No. 26772/95 (2000) )) The Court also reiterated precedent establishing that physical suffering is not necessary to claim ill-treatment under Article 3. [para. 44] Lastly, the Court held that discrimination based on race could also amount to ill-treatment.
The Court held that the conduct by the anti-Roma protestors did not meet the minimum level of severity required to establish a violation of Article 3. The Court reasoned that although the anti-Roma protestors openly discriminated against R.B. and other members of the Roma community in her village over a period of several days, the continuous police presence and lack of confrontation prevented “fear, anguish or feelings of inferiority necessary for Article 3 to come into play.” [para. 51]
ECHR Article 8
First, the Court reiterated that the notion of “private life” within the context of Article 8 does not have an exhaustive definition, and an individual’s ethnic identify is an aspect of it. Particularly, the Court stressed that “any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group.” [para. 78] The Court then noted that it has previously ruled that “treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8.” [para. 79]
The Court held that R.B. was abused because she belonged to an ethnic minority, and thus her private life was affected by the treatment she received within the meaning of Article 8. The Court then reiterated that under Article 8, the state must not only abstain from discriminatory practices, but also complete positive obligations to adopt “measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” [para. 81] The Court also highlighted that in its precedent, it had already established “inflicting minor physical injuries and making verbal threats may require the States to adopt adequate positive measures in the sphere of criminal-law protection.” [para. 83] Furthermore, the Court stressed that when there are “patterns of violence and intolerance against an ethnic minority,” then the states have a higher standard of positive obligations to respond to alleged bias-motivated incidents. [para. 84]
The Court then examined if the Hungarian authorities breached their positive obligations under Article 8 by failing to adequately investigate and apply criminal law mechanisms. The Court determined that despite R.B.’s repeat complaints that she suffered violence and harassment on the basis of her ethnicity, the law enforcement authorities refused to take into account the racial or ethnic motive that led to the attack, treating it as a general crime. The Court stressed that R.B. was insulted and threatened in the context of anti-Roma rallies, and law-enforcement authorities needed to consider this context. The Court also held that despite the Hungarian law offering apt grounds to identify and prosecute R.B.’s offenders, the law enforcement authorities failed to take proper action. On whether the police’s inaction during the rallies failed the positive obligations to prevent attacks on private life during the protests, the Court found that it had not. The Court held that positive obligations should not “impose an impossible or disproportionate burden on the authorities.” [para. 99] The Court accepted that the protests caused stress for R.B. and others in the village, but that the police acted reasonably in the circumstances. The Court held that Hungary was to pay R.B. EUR 4000 for non-pecuniary damage, and EUR 3717 for costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision reiterates that, under Article 8 of the ECHR, government authorities have a positive obligation to investigate, and if necessary, penalize hate speech to ensure the right to private life is protected. The Court stressed that, in the context of general hostile attitude against the Roma community, the authorities needed to take all reasonable steps with the aim of unmasking the role of racist motives in R.B.’s incident.
The ECtHR did not satisfy R.B.’s complaint that the law enforcement authorities’ inaction violated Article 8 regarding the larger demonstrations by the anti-Roma groups. Although the Court accepted that the demonstration might have caused stress to R.B., it did not find that the police failed in its obligations. Thus, the decision also protected public assemblies that may be insulting in content and purpose.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is binding upon parties to the European Convention of Human Rights (ECHR), and establishes further precedent for the European Court of Human Rights (ECtHR).
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