Information Note on the Court’s case-law 221
August-September 2018
Savva Terentyev v. Russia - 10692/09
Judgment 28.8.2018 [Section III]
Article 10
Article 10-1
Freedom of expression
Conviction and suspended prison sentence for offensive Internet comment against police officers: violation
Facts – The applicant, a young blogger, posted an online comment labeling all police officers as “lowbrows” as well as “the dumbest and least educated representatives of the animal world” and calling for the “burning of infidel cops in Auschwitz-like ovens” with the aim of “cleansing society of this cop-hoodlum filth”. He was convicted of incitement of hatred against police officers as a social group and sentenced to a one-year suspended prison term.
Law – Article 10: The Court proceeded on the assumption that the interference with the applicant’s freedom of expression was prescribed by law and pursued a legitimate aim, namely to protect the reputation and rights of the Russian police officers.
The text in question had been framed in very strong words and used vulgar, derogatory and vituperative terms. The key issue was, however, whether the applicant’s statements read as a whole and in their context could be seen as promoting violence, hatred or intolerance. In this regard, the applicant’s comment had been made in the context of a discussion concerning a matter of general and public concern, namely the alleged involvement of the police in silencing and oppressing the political opposition during the period of an electoral campaign. The comment had showed the applicant’s emotional disapproval and rejection of what he had seen as abuse of authority by the police, conveying his sceptical and sarcastic point of view on the moral and ethical standards of the personnel of the Russian police and could therefore be understood as a scathing criticism of the current state of affairs in the Russian police.
Although the passage about “[ceremonial] burning of infidel cops in Auschwitz-like ovens” was particularly aggressive and hostile in tone, it was not, as considered by the domestic courts, a call for the police officers’ “physical extermination by ordinary people” but rather a provocative metaphor and an emotional appeal to see the police “cleansed” of corrupt and abusive officers (“infidel cops”). As for the reference to Auschwitz, while Holocaust survivors and especially those who had escaped Auschwitz might be offended by such a statement, the protection of their rights had never been cited by the domestic courts among the reasons for the applicant’s conviction. Moreover, the text in question did not reveal any intention to praise or justify the Nazis’ practices used at Auschwitz. No supporting arguments had been advanced as to why the Russian police officers could have considered themselves affected by such a reference and, more generally, recourse to the notion of annihilation by fire could not in itself be regarded as incitement to any unlawful action, including violence.
It was also of relevance that the applicant’s remarks had not attacked personally any identifiable police officer but rather concerned the police as a public institution, which could hardly be described as a group in need of heightened protection. Being a part of the security forces of the State, the police should display a particularly high degree of tolerance to offensive speech, unless such inflammatory speech was likely to provoke imminent unlawful actions in respect of their personnel, exposing them to a real risk of physical violence. There was no indication that the comment had been published against a sensitive social or political background or in a tense security situation involving anti-police riots or other circumstances exposing police officers to a real and imminent threat of physical violence. The domestic courts had thus failed to explain why police officers as a social group needed enhanced protection.
As for the potential impact of the impugned comment, the domestic courts had not attempted to assess whether the blog where the applicant had posted his comment was generally highly visited, or to establish the actual number of users who had accessed that blog during the period of one month when the applicant’s comment had remained available. In fact, it was the criminal prosecution that had prompted the interest of the public towards the comment, which had seemingly drawn very little public attention previously. The applicant had not been a well-known blogger or a popular user of the social media, let alone a public or influential figure which could have attracted public attention and thus enhanced the potential impact of the impugned statements. The potential of the applicant’s comment to reach the public and thus to influence its opinion had therefore been very limited.
With respect to the reasoning of the domestic courts, they had focused on the form and tenor of the the impugned statements, without analysing them in the context of the relevant discussion. Furthermore, no attempt had been made to assess the potential of the statements at hand to provoke any harmful consequences, with due regard to the political and social background, against which they had been made, and to the scope of their reach. The domestic courts had therefore failed to take account of all the facts and relevant factors, hence the reasons given could not be regarded as “relevant and sufficient” to justify the interference with the applicant’s freedom of expression.
While offensive, insulting and virulent, the applicant’s statements could not be seen as an attempt to incite hatred against the Russian police officers. Nor did they have any potential to provoke violence, thus posing a clear and imminent danger which would have required the applicant’s criminal conviction and a suspended prison sentence. The interference had therefore been disproportionate to the legitimate aim invoked.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
(See also Dmitriyevskiy v. Russia, 42168/06, 3 October 2017, Information Note 211)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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