The Case of Sheikh Ali Salman [Bahrain]
Closed Expands Expression
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The Third Section of the European Court of Human Rights held unanimously that there had been a violation of violation of Article 10 in relation to the first applicant and a violation of Article 11 read in light of Article 10 in relation to both applicants. In 2011, the first applicant wrote a post on the group’s website about the Russian Orthodox Church, making statements such as “thinking members of society have realized that the church is also a party in power.” The first applicant was inserted on the list of terrorist and extremists and charged and found guilty of hate speech. His association was dissolved. In reaching its decision, the European Court of Human Rights noted that the post could not incite violence, hatred or intolerance and that “merely because a remark may be perceived as offence or insulting by particular individuals or groups of individuals does not mean that it constitutes hate speech” [para.44].
The first applicant (Yefimov) was director of the second applicant association, Youth Human Rights Group, which supported youth activities and published an online newspaper reporting its work but also life in the region (Karelia). In 2011, the applicant made a post on the group’s online newspaper entitled ‘Karelia is fed up with priests.’ He spoke of the Russian Orthodox Church and the country’s ruling party as “fooling people with fairy-tales about our good life while ranking in money” and made several other similar statements. An investigator with the Investigations Committee of Karelia commenced criminal proceedings in light of the publication. The applicant was charged with hate speech and was added to the list of terrorists and extremists. His association (the second applicant) was dissolved on this ground. The Town Court approved the applicant’s placement into a psychiatric facility to carry out a “granular analysis of his personality traits.” The first applicant fled Russia to avoid this. He was granted asylum in Estonia.
The Third Section of the ECtHR unanimously held that the first applicant’s right to freedom of expression under Article 10 had been violated and that the second applicant’s right to freedom of association under Article 11, read in light of Article 10 had been violated.
The main issue before the court was ascertaining whether Yefimov’s persecution for hate speech and his association’s dissolution was in line with Article 10 and Article 11 of the European Convention on Human Rights respectively.
The first applicant argued that his prosecution had the objective to cease his work as an activist and human rights defender and punish him for speaking up for secularism. He also noted that the threat to commit him to a psychiatric facility was a violation of his Article 10 rights. He referred to the position of the position of the Supreme Court that criticizing religious institutions did not amount to hate speech. He thus argued that the interference was “neither lawful nor necessary in a democratic society” [para.32].
The government argued that criminal proceedings were fully compliant with domestic law. It referred to expert statements that the post contained “humiliating descriptions, negative affective evaluations and adverse affirmations” [para.33]. As such, it underlined the authorities had to investigate the case and submit it to a court.
The ECtHR relied on its well-established case law such as Handyside v. the United Kingdom and Bédat v. Switzerland, noting that freedom of expression is one of the essential foundations of democratic society applicable to ideas and information that “offend, shock or disturb.” It reiterated findings in Ibragim Ibragimov v Russia that mere insults were not enough to interfere with free speech and that context was specifically important in any assessment (Perinçek v. Switzerland).
The Court assessed whether the criminal proceedings brought against the first applicant for his publication and placing him on the list of terrorists and extremists amounted to a violation of Article 10 of the Convention. It also considered whether the dissolution of the second applicant – the organization, amounted to a violation of Article 11 (freedom of association and assembly) read in light of Article 10.
The ECtHR applied the tripartite test of assessing whether an Article 10 interference was legitimate. It looked at whether the interference was prescribed by law – a point which the parties did not agree on. As with other cases against Russia, the Court “leaves this issue open with a view to examining the compliant from the standpoint of the necessity of the interference” [para. 41].
In assessing the necessity of the interference, the ECtHR took into account a number of factors such as the “existence of a tense political or social background; the presence of calls for – or a justification of – violence, hatred or intolerance, the manner in which the statements were made, and their potential to lead to harmful consequences” [para. 43]. In relying on Perinçek v. Switzerland, it noted that subject matter restrictions or restrictions based on broad legal rules could not justify interference, rather it is required that interference was ‘necessary in the specific circumstances [para. 43]. It reiterated its findings in Ibragim Ibragimov v Russia, namely that “merely because a remark may be perceived as offensive or insulting by particular individuals or groups of individuals does not mean that it constitutes hate speech. Whilst such sentiments are understandable, they alone cannot set the limits of freedom of expression” [para. 44]. Combining Perinçek and Ibragim, the key issue for the Court in the present case was “whether the applicant’s comments, when read as a whole and in their context, could be seen as promoting violence, hatred or intolerance” [para. 44].
In this light, the ECtHR found that the post could not invite violence, hatred or intolerance and unanimously found a violation of the first applicant’s Article 10 rights and the second applicant’s Article 11 rights (read in light of Article 10). It held that Russia should pay Yefimov the amount of EUR 10,000 plus any chargeable tax in respect of non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression since it found a violation of Article 10 and Article 11 (read in light of Article 10), citing its previous judgement in Ibragim Ibragimov v Russia, that speech which is insulting or offensive to others is not necessarily hate speech and thus “cannot set the limits of freedom of expression.” This is a speech protective position of the Court which is not discerned in cases involving speech about protected groups such as ethnic or religious groups. For example, the Court took an opposite position in Féret v Belgium, in which the Court considered that “attacks on persons committed through insults, ridicule or defamation aimed at specific population groups or incitement to discrimination…sufficed for the authorities to give priority to fighting hate speech…”
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.
This judgment establishes a binding or persuasive precedent since the European Court of Human Rights’ judgments are binding upon parties to the decision.
This judgment has precedential value on the interpretation on the right to freedom of expression but also on the use of the inadmissibility clause on other States Parties to the European Convention on Human Rights.
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