The Case of Sheikh Ali Salman [Bahrain]
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The European Court of Human Rights held that the imposition of a suspended sentence on an individual for posting a provocative comment online, that criticized police abuse, amounted to a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights. The post was made in response to a press release that reported on a politically-motivated police search of a newspaper’s premises during an election period. Mr. Savva Terentyev posted a comment on a blog about the press release. In the comment he referred to the police as “cops”, “pigs”, and “hoodlums”. The comment also alluded to the burning of police officers “like at Auschwitz”. Mr. Savva Terentyev received a one-year suspended sentence for publicly inciting hatred and enmity, and humiliating the dignity of a group of persons on the grounds of their membership of a “social group”. In doing so, the Russian courts included police officers as a specially protected group under its hate speech laws. The European Court of Human Rights held that, taking into account the whole comment and the context in which it was made, Mr. Terentyev’s conviction was a disproportionate interference with his right to freedom of expression. In its judgment, the European Court of Human Rights warned that laws regulating hate speech and incitement to violence must be clearly and precisely defined, as well as strictly construed, in order to “avoid a situation where the State’s discretion to prosecute for such offenses becomes too broad and potentially subject to abuse through selective enforcement.”
The case concerned comments that were posted online by Mr. Savva Terentyev after police conducted an “unplanned inspection” at the office of a local newspaper in Syktyvkar, the capital of the Komi Republic in Northwestern Russia, in February 2007. The police searched the office, claimed that the software installed on the computers was counterfeit, and seized hard drives. This searched occurred during a regional election, and the newspaper in question was known for publishing articles opposing the actions of the regional authorities. After the search, a non-governmental organization issued a press release in which it noted that the newspaper had published articles about the election, was in opposition to the current authorities of the Komi Republic, and actively supported a well-known local politician who had a long-standing conflict with the authorities. The press release also stated that the police did not clearly explain the legal basis for the search and that one police officer threw out a journalist’s belongings to get access to the latter’s computer during the inspection.
The head of the non- governmental organization shared the press release on his blog hosted by Livejournal.com (Livejournal), a popular blogging platform. This blog post attracted a number of comments, including a comment posted by Mr. Terentyev entitled “I hate the cops, for fuck’s sake.” The comment referred to police officers as “cops”, “pigs”, “lowbrows”, “hodlums” and “the dumbest and least educated representatives of the animal world.” The comment also alluded to the burning of police officers “like at Auschwitz”. [para. 13]
On March 14, 2007, Mr. Terentyev was charged with inciting hatred and enmity and humiliating the dignity of a group of persons on the grounds of their membership of a social group, punishable under Article 282 of the Russian Criminal Code. On March 16, 2007, the police searched Mr. Terentyev’s apartment. On the same day, Mr. Terentyev removed his comment.
Mr. Terentyev was tried before the Syktyvkar Town Court of the Komi Republic (Town Court), before which he pleaded not guilty. He admitted that he wrote the comment but argued that “it had represented his emotional and spontaneous reaction to the press release of [the non-governmental organization] regarding the police search at the office of an opposition newspaper”. [para. 17] He further explained that, to him, there was a distinction between a “police officer” and a “cop”. He considered the latter to be a law-enforcement officer who abused his/her authority, while the former was someone respectable. Mr. Terentyev conceded that his comment was provocative but insisted that it was simply an exaggeration. He also apologized to former prisoners of Nazi concentration camps and to “honest” police officers, who may have felt offended by the comment.
The Town Court ordered that a comprehensive socio-humanities forensic expert examination be carried out in relation to the text. This examination concluded that Mr. Terentyev had targeted police officers as a “social group” and that his comment “aimed at inciting hatred and enmity” towards this group and “called for their physical extermination”. [para. 20] The Town Court found that it had no reason to doubt these findings.
On July 7, 2008, the Town Court found Mr. Terentyev guilty under Article 282 of the Russian Criminal Code for publicly inciting hatred and enmity, and humiliating the dignity of a group of persons on the grounds of their membership of a social group. The Town Court sentenced Mr. Terentyev to a suspended term of one year in prison. According to the Town Court, Mr. Terentyev “[had] decided to influence the public with the aims of inciting them to commit violent actions against police officers, of instilling the public with the resolve and aspiration to commit unlawful actions in respect of [the police officers]”. [para. 22] It also held that, as he posted his comment on a more popular blog than his own, he had made it accessible to a larger readership. It also found that the words used to describe police had humiliated their dignity, and it did not agree that the text amounted to a criticism of the shortcomings of law enforcement.
Mr. Terentyev appealed the verdict. He argued that the Town Court expanded the scope of the term “social group” to encompass police officers. He also argued that the Town Court failed to show how his comment posed a danger to society. On August 19, 2008 the Supreme Court of the Komi Republic rejected the appeal and upheld the Town Court’s judgment. The appellate court held that Mr. Terentyev’s statement did not criticize the police, but instead publicly called for violence against police officers.
Mr. Terentyev submitted a complaint to the European Court of Human Rights. He argued that his conviction unjustifiably interfered with his right to freedom of expression in violation of Article 10 of the European Convention on Human Rights. He argued that his conviction amounted to an unforeseeable application of Article 282 of the Russian Criminal Code, which was aimed at protecting against racial, national, linguistic, or religious hatred, and did not extend to “social groups” such as the police. He also argued that his comment amounted to criticism, and there were valid grounds for making such a critical comment against the police. He also contended that his comment did not pose public danger (his comment had been read by around twenty-five Internet users). The Russian Government argued, among other things, that the conviction was “necessary in a democratic society” to protect a group of persons (police officers) from being the target of incitement to hatred. It also observed that the comment enjoyed unrestricted access on the Internet. It also pointed out that Mr. Terentyev was given a suspended sentence, which it argued could not be regarded as disproportionate.
On August 28, 2018, the European Court of Human Rights (Court) ruled that Mr. Terentyev’s conviction violated his right to freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights (Convention). In rendering its judgment, the Court made reference to international standards and guidance set out by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, the UN Committee on the Elimination of Racial Discrimination, the UN Human Rights Council, the Council of Europe Committee of Ministers, and the OSCE Office for Democratic Institutions and Human Rights.
The Court applied the three-part test in assessing the legitimacy of the interference. In other words, it assessed whether Mr. Terentyev’s conviction was “prescribed by law”, in pursuit of one or more legitimate aims as defined by Article 10 of the Convention, and was “necessary in a democratic society” to achieve those aims.
Prescribed by Law
The Court recognized that the interference had a legal basis (Article 282 of the Russian Criminal Code), and the law was accessible. The remaining question for the Court related to whether the law was foreseeable as to its effects. For this, the Court had to examine the content of Article 282, the field it was designed to cover, and the number and status of those it was intended to address. It went on to hold that that the Russian courts’ interpretation of Article 282, to protect the police as a “social group”, did not conflict with the “natural meaning of the words” of that provision. [para. 57] The Court also noted that the domestic courts, in this case, were faced with a legal issue that had not been clarified by judicial interpretation. The Court did not fault the domestic courts for this situation. In light of this, the Court was willing to proceed with the assumption that the interference had been “prescribed by law.”
The Court concluded that Mr. Terentyev’s conviction was designed to protect the reputation or rights of others, namely the Russian police, which was a legitimate aim under Article 10 of the Convention.
Necessary in a Democratic Society
The final question for the Court was whether the interference was “necessary in a democratic society”. In considering this question, the Court looked at the following factors: the nature and wording of the impugned statements, the context in which they were published, their potential to lead to harmful consequences and the reasons adduced by the Russian courts to justify the interference in question. These factors were reviewed in their totality, rather than in isolation, to come to the conclusion that the interference was unnecessary in a democratic society.
The Court observed that Mr. Terentyev’s comment included vulgar, derogatory and insulting terms to describe police officers. It noted that, although wanton denigration may fall outside the protection of freedom of expression, “the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes.” [para. 68] The Court again stressed that not “every remark which may be perceived as offensive or insulting by particular individuals or their groups justifies a criminal conviction in the form of imprisonment”. [para. 69] The Court explained that Mr. Terentyev’s statements had to be assessed as a whole and in their context in order to determine if they promoted violence, hatred or intolerance.
In relation to the context in which the comment was made, the Court observed that Mr. Terentyev posted his comment as part of a discussion prompted by a press release about police abuse. The comment deserved heightened protection under the right to freedom of expression because it related to a matter of public interest and was made in the context of elections. The Court also noted that the comment was an emotional response to what he viewed as police abuse and conveyed his skeptical and sarcastic point of view. Therefore, it amounted to a “scathing criticism of the current state of affairs in the Russian police.” [para. 71] Although Mr. Terentyev spoke about the ceremonial burning of corrupt police officers, the Court was not convinced that this was a call for the physical extermination of ordinary people. The Court, instead, viewed it as a provocative metaphor. It found no evidence of an intention to praise or justify the Nazi’s practices in Auschwitz. It also placed considerable weight on the fact that the protection of Holocaust survivors was never relied on by the domestic courts to justify the conviction. The Court added that “recourse to the notion of annihilation by fire”, in and of itself, could not be regarded as incitement to unlawful action. [para. 74] Instead, it is generally understood as an expression of dissatisfaction or protest.
The Court went on to consider the target of the comments. In this regard, it noted that Mr. Terentyev did not single out certain police officers in his comment but, instead, referred to the police as a public institution. The Court also highlighted that the police could not be described as an unprotected minority or group that experienced a history of oppression or inequality, or that faced deep-rooted prejudices, hostility and discrimination, or that was vulnerable for some other reason. Hence, according to the Court, the police had to display a “particularly high degree of tolerance to offensive speech, unless such inflammatory speech is likely to provoke imminent unlawful actions in respect of their personnel and to expose them to a real risk of physical violence.” [para. 78] The Court observed that there was no evidence that the comment was published at a time of a security emergency, violence, or other disturbances. In short, the domestic courts failed to demonstrate how police officers as a “social group” needed enhanced protection.
The Court then went on to criticize the domestic courts for failing to take into account the limited impact of the comment. For instance, the domestic courts did not assess whether the blog on which the comment appeared was highly visited, and it did not try to establish how many users access the blog while the comment was visible. It noted that the comment was accessible online for a month and drew limited attention, until it was covered by the media, due to the criminal charges brought against Mr. Terentyev. It also took into account the fact that Mr. Terentyev was not a famous blogger or public figure, which limited the potential impact of the comment.
Finally, the Court looked at the severity of the sanction imposed. In this regard, it noted that a criminal sanction is a serious sanction and the imposition of a prison sentence “for an offence in the area of a debate on an issue of legitimate public interest will be compatible with freedom of expression … only in exceptional circumstances, notably where other fundamental rights have been seriously impaired”. [para. 83]
In the concluding paragraphs of the judgment, the Court stressed that it was “vitally important that criminal law provisions directed against expressions that stir up, promote or justify violence, hatred or intolerance clearly and precisely define the scope of relevant offenses, and that those provisions be strictly construed in order to avoid a situation where the State’s discretion to prosecute for such offenses becomes too broad and potentially subject to abuse through selective enforcement.” [para. 85]
The Court concluded that the conviction was disproportionate and did not meet a pressing social need. Therefore, there had been a violation of the right to freedom of expression under Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by recognizing that the misuse of laws regulating hate speech and incitement to violence amounts to a violation of the right to freedom of expression. In particular, the European Court of Human Rights took a critical look at whether the “social group” being protected by the Russian courts through the interpretation and application of their hate speech laws in this case could be described as an “unprotected minority or group that has a history of oppression or inequality, or that faces deep-rooted prejudices, hostility and discrimination, or that is vulnerable for some other reason, and thus may, in principle, need a heightened protection from attacks committed by insult, holding up to ridicule or slander”. [para. 76] This judgment recognizes that hate speech laws can be prone to abuse and used as a means to silence critical voices. In doing so, the European Court was careful to stress the need for such laws to be clearly and precisely defined, as well as strictly construed.
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.
As noted above, the European Court of Human Rights expanded freedom of expression when it criticized Mr. Terentyev’s conviction. Unfortunately, the judgment may have little impact. The conviction made Mr. Terentyev notorious in Russia, and made it difficult for him to find employment. In 2011, he fled Russia and received political asylum in Estonia. The harm from the 2008 conviction had been done and forced Mr. Terentyev out of Russia before the judgment in this case was rendered.
Let us know if you notice errors or if the case analysis needs revision.