Homophobic statements by politicians and failure of the state to protect the rights of the LGBTI community. Violation of the right to privacy. Prohibited discrimination

JUDGMENT

Nepomnyashchiy  and others v. Russia 30/05/2023 (app. no. 39954/09 and 3465/17)

SUMMARY

Homophobic statements by politicians against the LGBTI community. Right to privacy and prohibited discrimination.

The applicants are gay activists, members of the LGBTI community of Russia. Two famous politicians publicly made racist statements against LGBTI people in the press, specifically “Tolerance? Damn it! “Homos” must be torn to pieces. And let the pieces be thrown to the wind!”, they also called homosexuals “sick and perverted”. The applicants sued but the domestic authorities did not prosecute.

The Court found that the domestic authorities, by refusing to consider LGBTQI persons as a “social group”, failed to recognize the applicants’ right to respect for their private life and their right to be protected from discrimination based on sexual orientation and gender identity.

The ECtHR held that the domestic authorities in the criminal proceedings failed to strike a fair balance between the applicants’ right to respect for their private life and the public interest in the protection of freedom of expression in the light of the principles arising from the Court’s settled case law . The Russian courts also dismissed a lawsuit filed.

The Court found a violation of Article 8 in conjunction with Article 14 of the ECHR and awarded each applicant €7,500 for moral damage and €7,384 for legal costs.

PROVISIONS 

Article 8

Article 14

PRINCIPAL FACTS

The applicants are four Russian nationals who live in Krasnoyarsk Region, Moscow and St Petersburg.
They are all LGBTI rights activists.

The case concerns alleged homophobic statements by high-ranking officials in interviews they gave
to leading newspapers in 2008 and 2013. Mr Betin, Governor of Tambov Region, notably said:
“Tolerance? Damn it! Homos must be torn to pieces. And the pieces thrown to the wind!”.

Mr Milonov, a member of the St Petersburg Legislative Assembly, commenting on an attack on
members of an LGBTI support organisation, called homosexuals “sickos and perverts”.

The applicants brought criminal complaints against the officials, arguing that the statements
amounted to a call for violence against LGBTI people, but no criminal proceedings were ever
brought. A civil complaint against Mr Mironov was also unsuccessful.

Relying on Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and
family life), the applicants complain that the officials’ statements discriminated against them as
members of the LGBTI community and that Russian law does not offer effective protection against
homophobic hate speech. They allege that, although they were not personally named in the
statements, as members of the LGBTI community and activists they had been directly affected.

THE DECISION OF THE COURT…

The Court reiterated that it is vital that politicians, including MPs, avoid making statements that promote hatred or intolerance in their public discourse. This also applies to political figures whose public statements can be taken as the official position of the state.

(a)  Effectiveness of the legal system

The Court will first examine whether an effective legal system was in place and operating for the protection of the rights falling within the notion of “private life”, and was available to the applicants. It reiterates that, as regards acts which encroach on an individual’s psychological integrity, the obligation of an adequate legal framework does not always require that a criminal-law provision covering the specific act be put in place. The legal framework could also be made up of administrative or civil-law remedies capable of affording sufficient protection, possibly combined with procedural remedies such as the granting of an injunction. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is in issue.

The CvC provides for redress – in the form of injunctive relief and tort liability – for infringements of honour, dignity and private life. The Constitutional Court held that the right to respect for human dignity and private life covered sexual identity. Furthermore, the CC makes it a criminal offence publicly to incite hatred or enmity and violate the dignity of an individual or a group of individuals on the grounds of, among others, membership of a social group (see paragraph 39 above). The Constitutional Court held that the term “social group” mentioned in the CC might be interpreted as covering a group of people on the basis of their sexual orientation.

 Sexual orientation and gender identity are not explicitly mentioned in the relevant provisions of the Civil and Criminal Codes or in the equality clause of the Russian Constitution. In the Court’s view, an explicit mention of sexual orientation and gender identity as prohibited grounds for discrimination may be beneficial for avoiding any legal uncertainty and to convey to the general public the clear message that these vulnerable groups are protected by law. However, in the light of the State’s margin of appreciation in respect of choosing legal instruments to ensure compliance with the Convention, and taking note of the Constitutional Court’s ruling , the Court considers that the existing legal framework is capable – at least in theory – of protecting the applicants from homophobic hate speech. It however also notes that the Government failed to submit any examples of judicial practice applying the Constitutional Court’s ruling and recognising a person’s gender identity and sexual orientation as a protected aspect of their right to respect for human dignity and private life under Articles 150 and 151 of the CvC or as an element of the offence of hate speech under Article 282 of the CC.

The Court concludes from the above that Russian law contains both civil-law mechanisms and criminal-law provisions for the protection of an individual’s private life against stigmatising statements, including homophobic statements. It however has doubts about their effectiveness in practice, in view of the Government’s failure to show the existence of settled domestic practice.

(b)  Examination of the applicants’ cases by the domestic authorities

All applicants lodged a criminal complaint under Article 282 of the Criminal Code; Ms Krikkerik later also lodged a civil claim under Articles 150 and 151 of the Civil Code. Given the gravity of the impugned statements, and a lack of a clearly established civil-law remedy under Russian law, it was not unreasonable for the applicants to use the criminal-law remedy available under the domestic law. The Court will therefore assess the proceedings as used by the applicants. It will examine whether in those proceedings the domestic authorities balanced the applicants’ right to respect for their private life against the public interest in protecting freedom of expression in the light of the principles resulting from the Court’s well‑established case‑law.

 It is not the Court’s task to rule on the constituent elements of the offence of hate speech under Article 282 of the CC. It is primarily for the national authorities, in particular the courts, to interpret and apply domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. The domestic authorities did not embark on a balancing exercise between the competing Convention rights in the criminal proceedings. Without expressly ruling out that Mr Betin’s and Mr Milonov’s statements reached the threshold of hate speech within the meaning of Article 282 of the CC, they essentially considered that such statements did not fall under that provision because homosexuals were not a “social group”. They did not give persuasive reasons for that finding. As noted above, sexual orientation and gender identity are not explicitly mentioned among the protected grounds in Article 282 which, however, include membership of a “social group”. The refusal to recognise LGBTI people as a “social group” had therefore the effect of removing statements inciting hatred or enmity against them or violating their dignity from the scope of Article 282 of the CC and thereby of denying the applicants the protection of that provision. The Court refers in this connection to the Constitutional Court’s ruling – adopted after the facts of application no. 39954/09 and while the proceedings in application no. 3465/17 were pending – which held that the term “social group” mentioned in the CC could be applied to LGBTI people. By refusing to regard LGBTI people as a “social group”, the domestic authorities in the present case failed to acknowledge the applicants’ right to respect for their private life and their right to be protected from discrimination on grounds of sexual orientation and gender identity.

The domestic authorities in application no. 3465/17 in addition found that it was impossible to prove Mr Milonov’s direct intent to incite hatred or enmity or to violate the dignity of an individual or a group of individuals on grounds of homosexual orientation, committed publicly or through the mass media. They found that Mr Milonov could not foresee that his statements would be published in the media because the journalist had not warned him about it. The Court is not convinced by this argument. It notes that the journalist introduced himself as a reporter for the news website Fontanka.ru. It was never claimed that Mr Milonov had requested to speak off the record. Furthermore, Mr Milonov stated to the investigator that he had assumed that the interview would be published .

While being careful not to hold that each and every utterance of hate speech against a vulnerable group must, as such, attract criminal prosecution and criminal sanctions, the Court is unable to subscribe to the conclusions of the domestic courts in the present case. It finds that the domestic authorities in the criminal proceedings failed to strike a fair balance between the applicants’ right to respect for their private life and the public interest in protecting freedom of expression in the light of the principles resulting from the Court’s well‑established case‑law.

Turning now to the civil proceedings instituted by Ms Krikkerik, the Court observes that it cannot be said that the Russian courts examined the case in the light of the principles embodied in Articles 8 and 10 of the Convention. The courts focused on protecting Mr Milonov’s freedom of expression, emphasising that he had expressed his personal opinion. Although they acknowledged the vehemence of Mr Milonov’s statements, they downplayed their capacity to stigmatise LGBTI people as a group and arouse hatred and intolerance against them. They disregarded the vulnerability of the LGBT community in Russia and their need for special protection. Nor did they assess a potential impact of the impugned statements, taking into account the scope of their reach to the public and Mr Milonov’s status and position . By finding that Mr Milonov’s statements “[did] not amount to an interference with the private lives of the members of a specific group”, the domestic courts failed to recognise that the case involved a conflict between the applicant’s right to respect for her private life and Mr Milonov’s right to freedom of expression. The domestic courts never reached the stage of conducting a balancing exercise between the competing Convention rights, as they essentially considered that the applicant was not personally affected by the contested statements. The domestic courts therefore never actually examined the core of the applicant’s claim that Mr Milonov’s statements affected her right to human dignity, to respect for private life and to freedom from discrimination.

 In sum, even assuming that the domestic law provides for the protection of the private life of a social group’s individual members against stigmatising statements about that social group, owing to the Russian authorities’ approach, those domestic provisions were not applied in the applicants’ case, and the requisite protection was not granted to them. The domestic authorities failed to comply with their obligation to respond adequately to discriminatory statements and to secure respect for the applicants’ “private life”. There has therefore been a breach of Article 8 of the Convention read in conjunction with Article 14.

Just satisfaction:

non-pecuniary damage: EUR 7,500 to Mr Nepomnyashchiy, Mr Bayev, and Ms Krikkerik each

costs and expenses: EUR 7,834 to Mr Bayev