How far can one criticise the European Court of Human Rights and its judges?
The judgment is significant in upholding the complaints of Russian nationals and Russian non-profit organisations who alleged that the refusal to register associations set up to promote and protect the rights of LGBT people in Russia had violated their right to freedom of association and had amounted to discrimination on grounds of sexual orientation.
However, one aspect of the case is particularly interesting, and it concerns the behaviour of one of the applicants, Mr Nikolay Alekseyev.
Russia complained about Mr Alekseyev's behaviour
Mr Alekseyev was the applicant in two of the applications that made up this case.
The Russian government
What Mr Alekseyev did
The Russian government did not tell the Court exactly what Mr Alekseyev had written on social media. It appears, however, that the Court took it upon itself to look up the
Judges Keller, Serghides, and Elósegui lodged a strong dissenting opinion against the conclusions of the majority on the grounds that they did not believe that Mr Alekseyev’s conduct jeopardised the integrity of the Court in this case. In essence, they argued that the comments made by Mr Alekseyev were not sufficiently connected to the case under consideration.
Judges Keller, Serghides, and Elósegui also expressed concern about free speech, noting that judgments and decisions of the Court are weighty and often controversial and, as such, generate public discussion. Therefore, they stated, "the Court should be extremely careful not to set a precedent that could have a chilling effect on the active engagement of the public with the Court".
These judges express the concern that the Court could be "appearing to retaliate against the applicant’s offensive remarks" and that "the public should not be given the impression that the Court is engaging in revenge instead of delivering justice".
Judges Keller, Serghides, and Elósegui argued that the Court "exists to protect and realise" the right of individual application "for all applicants, regardless of their manners or propriety. Taking this right away from an applicant altogether should be done only in the most exceptional circumstances".
They proposed that "the Court should have considered [sending] the applicant an official letter with a clear indication that if he does not retract his false and derogatory comments about individual judges, his applications will no longer be dealt with in the future".
Was the Court right to take the approach it did?
It would be difficult to defend Mr Alekseyev's statements (as I outline here, I do not defend Mr Alekseyev's statements and I doubt many people would). However, should the Court have gone to the lengths it did in searching through an applicant's social media pages and, upon discovering the impugned statements, connecting them to the application it was considering?
It would be a very different matter if Mr Alekseyev had sent such statements to the Court but, as Judges Keller, Serghides, and Elósegui point out, the statements were not intentionally drawn to the Court's attention.
Is it appropriate, then, for the Court to discover such statements and conclude that the level of "disrespect" they contain and the lack of "trust" that they show mean that Mr Alekseyev cannot seek the protection of the Court?
Some people may be astonished, and deeply worried, that the Court - the self-styled Conscience of Europe - feels able to turn away someone on the grounds that they write things on social media that express a lack of "trust" in the Court.
Exactly how much lack of "trust" is a person allowed to express in the Court before the Court declares this an abuse of the right of individual application?
I will be thinking about this in the run up to giving a talk in Belfast on Thursday, where I plan to talk about popularism and the Court. The thrust of my talk will be that European governments and populations often react very negatively to the Court's judgments and, in doing so, seek to attack the legitimacy of the Court. This creates an environment in which the Court is asked to only issue judgments that the public can stomach. This is contrary to the Court's mission and therefore, I would argue, European governments have a moral responsibility to foster acceptance of the Court and its judgments, however unpopular these may be. But the Court also has its role to play. It must strive towards issuing judgments that best realize human rights protections in Europe. In doing so, in the face of almost constant "abuse" from individuals and governments alike, the Court must always be "the bigger person" in the pursuit of justice. Some might say that, in this case, the Court didn't fulfill that role and, as a consequence, has diminished its status.
For further thoughts on this case, see here: