Are offensive comments against police officers (cops, pigs, dogs, burning in ovens) protected by the freedom of expression?
Savva Terentyev v. Russia 28.08.2018 (no. 10692/09)
Offensive comments against the police in a blog post. Under the comment, “I hate the cops for fuck’s sake” the applicant described the police as pigs, faithful dogs of the regime, cops of low intellectual level and it would be great if at the center of every Russian city there was an oven like Auschwitz and twice a day the infidel police officers would be burning, cleaning up the society from this dirt. The national courts sentenced the applicant. The Court ruled that his comments were based on his concerns about the police involvement in the repression of the political opposition and underlined his disapproval of what he saw as a misuse of power. The police are not a vulnerable group that needed an increased level of protection but insted must show particular tolerance of criticism.
The Court has stated that the use of vulgar phrases alone is not decisive for the assessment of an expression as offensive, as it can only serve to emphasize the arguments and the style of the comments. The Court held that style is part of communication as a form of expression and it is protected along with the essence and communication of ideas and information.
The ECtHR held that the applicant’s criminal conviction did not meet a pressing social need. There has been a violation of freedom of expression (Article 10).
An important decision regarding the freedom of expression in the field of police criticism. The analysis is interesting both for vulgar expressions, as well as for style, communication, forms of expression, but also for the extent of acceptance by police officers of criticism against them.
The applicant, Savva Sergeyevich Terentyev, is a Russian national who was born in 1985 and lives in Steiermark (Austria).
In February 2007 the police raided the offices of a newspaper in Russia’s Komi Republic. A non-governmental organisation, the Memorial Human Rights Commission in Komi, issued a press release which criticised the police’s actions, linking them to a local election campaign. It also noted that the newspaper had supported a politician who was in conflict with the local authorities.
The head of Memorial published the press release on his blog and it attracted three comments the same day. One comment spoke of the police as “the regime’s faithful dogs”. One of Mr Terentyev’s acquaintances, a blogger and journalist, also wrote about the incident on his blog.
The day afterwards, Mr Terentyev read all this material, including the comment about the police as “faithful dogs”. He in turn wrote a comment under his acquaintance’s blog.
Under the title, “I hate the cops, for fuck’s sake”, he wrote that “I disagree with the idea that ‘police officers still have the mentality of a repressive hard stick in the hands of those who have the power’. Firstly, they are not police officers but cops; secondly, their mentality is incurable. A pig always remains a pig. Who becomes a cop? Only lowbrows and hoodlums – the dumbest and least educated representatives of the animal world. It would be great if in the centre of every Russian city, on the main square … there was an oven, like at Auschwitz, in which ceremonially every day, and better yet, twice a day (say, at noon and midnight) infidel cops would be burnt. The people would be burning them. This would be the first step to cleansing society of this cop-hoodlum filth.”
An investigation was opened against him in March 2007 under legislation prohibiting incitement to hatred. When the case came to trial, he argued that his comments had been an emotional response to Memorial’s press release and the other blog comments. He made a distinction between honest police officers and dishonest “cops” and stated that his reference to Auschwitz had been an exaggeration. He apologised to former prisoners of Nazi concentration camps and to “honest” police officers who had felt insulted by his remarks.
After calling witnesses and carrying out an analysis of Mr Terentyev’s comments, the first-instance court convicted him in July 2008 of incitement to hatred and violent acts against police officers. He was given a one-year suspended prison sentence.
The Supreme Court of the Komi Republic dismissed his appeal in August 2008. It rejected the applicant’s arguments that the first-instance court had accepted too loose a definition of social groups. It also found that his words had not been aimed at criticism of law-enforcement bodies but at publicly calling for violence against police officers.
THE DECISION OF THE COURT
The Court noted that it was necessary to carry out a careful examination of the context in which offensive and shocking language was used as that was the only way to distinguish between remarks that were protected by Article 10 and those that forfeited the right to tolerance. In Mr Terentyev’s case, the key issue was whether his comments, when read as a whole and in context, could be seen as promoting violence, hatred or intolerance.
His comments had been made on the background of concerns expressed by others about police involvement in suppressing political opposition and had showed his disapproval of what he saw as an abuse of authority. His use of images related to the Auschwitz death camp were particularly hostile and aggressive in tone, however, the Court was not convinced that his words had amounted to a call for the “physical extermination” of police officers, as the domestic courts had found.
The Court stressed that it did not approve of Mr Terentyev’s choice of words, which might well have offended Holocaust survivors. At the same time, the domestic courts had never raised that particular issue against him. Neither the Government nor the courts had mentioned why the police in particular would have felt aggrieved about such references.
Viewing his comments on burning “infidel cops” as a provocative metaphor, the Court observed that he had not called for such violence against a particular officer or officers. His comments had rather been aimed at the police as a public institution and had not been made on a background of sensitive social or political issues or amid a general security situation in the region that was tense. Nor had there been any clashes, disturbances, anti-police riots, or atmosphere of hostility and hatred that meant his statements could have caused a real threat of physical violence against officers.
In addition, it was difficult to regard the police as a vulnerable group which needed a heightened level of protection. In fact, the police had to show a particular tolerance to criticism unless they were faced with inflammatory speech that could lead to immediate violence against them.
The applicant’s comments had been made to a fairly restricted circle, but the courts had never looked at how many people had actually read his words. More public attention had been paid to him being prosecuted.
The domestic courts had concentrated on the form and tenor of his words and had not looked at the overall context and had not provided any explanation for finding that his actions had been a danger to national security. He had been convicted and given a prison sentence, which should only be used in exceptional circumstances when it came to debates on issues of legitimate public interest.
The Court reiterates that offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration; but 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. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the substance of the ideas and information expressed (see Gül and Others v. Turkey, no. 4870/02, § 41, 8 June 2010, and Grebneva and Alisimchik v. Russia, no. 8918/05, § 52, 22 November 2016, and the authorities cited therein).
Overall, the courts had not provided relevant and sufficient reasons for interfering with Mr Terentyev’s rights and his conviction had not met a pressing social need. There had therefore been a violation of Article 10
Just satisfaction (Article 41)
The Court decided that the finding of a violation alone was sufficient just satisfaction for any non-pecuniary damage Mr Terentyev had suffered and ordered Russia to pay him 5,000 euros in respect of costs and expenses (echrcaselaw.com editing).