Thoughts on the recent decision by the European Court of Human Rights in respect of statements made on social media by gay rights activist Nikolay Alekseyev
In a recent post I outlined the decision of the European Court of Human Rights, in Zhdanov and Others v Russia, to declare complaints brought by an applicant, Mr Nikolay Alekseyev, inadmissible on the ground that he had abused his Convention right of individual application.
Every person in Europe has a right under Article 34 of the Convention to make an application to the Court if they feel they are a victim of a violation of their Convention rights. However, Article 35(3) of the Convention empowers the Court to declare any application inadmissible if it feels that "the application is [...] an abuse of the right of individual application".
The issue in question: what did Mr Alekseyev do?
Mr Alekseyev was an applicant in two of the applications that comprised Zhdanov and Others v Russia.
The Russian government submitted to the Court that Mr Alekseyev had abused the right of individual application by insulting the judges of the Court on his social networking accounts.
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 Instagram and VKontakte accounts and investigate what Mr Alekseyev had written.
What the Court found, it claimed, were statements about the Court and its judges that are "virulently and personally offensive and threatening".
Examples of this are given as Mr Alekseyev having published judges’ photographs with such captions as “alcoholic”, “drug addict”, “corrupt”, and “this crone owes me 100,000 euros ... God will punish her”.
Mr Alekseyev is also said to have called the judges, among other terms, “European bastards and degenerates”, “freaks”, “venal scum” and “idiotic”.
He is further said to have wished that the judges would “snuff it as soon as possible like dogs”, threatened to “torture [them] ... with litres of vodka” and announced that “it [was] time to set fire to the European Court of Human Rights”. He also stated: “We should not have given wenches the right to vote ... They should be cooking soup”.
The Court's reaction and decision
The Court stated that Mr Alekseyev's statements "clearly exceed the limits of normal, civic and legitimate criticism".
The Court's interpretation of these statements is that they were designed to "ensure the widest possible circulation of his accusations and insults" and were evidence of Mr Alekseyev's "determination to harm and tarnish the image and reputation of the institution of the European Court of Human Rights and its members".
Having found the social media posts, the Court sent a letter to Mr Alekseyev referring to all his pending applications and warning him that such statements might amount to an abuse of the right of petition.
Mr Alekseyev did not however withdrawn his statements which are, apparently, still visible on social media accounts.
The Court stated that Mr Alekseyev has since published new offensive statements about the Court, in particular describing it as “a rubbish heap” and calling its judges “European corrupt scum” and “homophobic”.
The Court therefore concluded that these "statements published after the warning that explicitly mentioned the present applications can therefore be considered to be connected with them".
On this basis the Court decided that, by continuing to publish insults about the Court and its judges after the warning, Mr Alekseyev had "shown disrespect to the very institution to which he had applied for the protection of his rights".
Furthermore, the Court stated that "it is unacceptable [for Mr Alekseyev] to seek the protection of a court in which [he] has lost all trust".
Quoting from its case law, the Court held that Mr Alekseyev's conduct constitutes “a vexing manifestation of irresponsibility and a frivolous attitude towards the Court”, amounting to contempt, and is therefore contrary to the purpose of the right of individual application, as provided for in Articles 34 and 35 of the Convention.
Mr Alekseyev had therefore abused the right of application within the meaning of Article 35(3)(a) of the Convention.
Questions raised by this decision
As I stated in my previous post, it would be difficult to defend Mr Alekseyev's statements about the Court. I doubt many people will find the comments acceptable and worthy of any serious defence.
However, the Court's decision raises serious questions about the lengths it went to in searching through an applicant's social media content and, upon discovering statements about the Court, connecting them to the application it was considering.
Mr Alekseyev did not make these statements directly to the Court and, as such, the Court's decision raises a number of questions about the extent to which a person's "personal comments" on social media should interfere with their right to individual application under the Convention - a right which is the bedrock of making the Convention an effective instrument to address human rights violations.
Some questions worth considering are...
Were Mr Alekseyev's statements on social media sufficiently connected to the application?
The Court's conclusion that the statements made by Mr Alekseyev on social media can "be considered to be connected" to his application to the Court is questionable.
As dissenting Judges Keller, Serghides, and Elósegui (see my recent post) argue, the Court's "reasoning goes too far" because "posts [on social media] by Mr Alekseyev [...] revealed no indication that they were aimed at the current application" before the Court.
How reasonable, therefore, is it for the Court to conclude that statements - however unpleasant - about the Court that are made on social media are "connected" to any application that it is considering?
The social media material and the application to the Court could be said to be quite separate and, on this basis, while the Court was aware, from its own research, that Mr Alekseyev had written some statements of which it (rightly) disapproved, it was open to the Court to take a different form of action.
For example, the Court could have, if it felt so inclined, reported Mr Alekseyev's "threatening" statements to the relevant law enforcement authorities. If such statements were subsequently deemed to constitute a criminal offence, they could have been treated as such by the relevant authorities and dealt with accordingly.
Arguably, what the Court should not have done was to take matters into its own hands and, in effect, punish Mr Alekseyev for his statements by refusing to hear his applications.
I agree with dissenting Judges Keller, Serghides, and Elósegui that the Court's decision may give "the impression that the Court is engaging in revenge instead of delivering justice".
I also think that it sends the very dangerous message that if any person decides to apply to the Court for protection that the Court could, if it was minded, search through that person's social media and "connect" any statements to their application.
This raises questions about the extent to which social media content in these circumstances should be deemed to be in the public domain (rather than, by contrast, being treated as an aspect of "private life" that might be protectable under Article 8 of the Convention).
How "public" are Mr Alekseyev's statements?
Is it reasonable to conclude that Mr Alekseyev's social media statements were "public" in the way the Court described them?
The Court argued that Mr Alekseyev's statements were designed to "ensure the widest possible circulation of his accusations and insults" and were evidence of his "determination to harm and tarnish the image and reputation of the institution of the European Court of Human Rights and its members".
I had never seen Mr Alekseyev's statements on social media. Although I obviously follow sexual orientation discrimination cases in the Court very closely, I do not routinely look at applicants' social media pages. However, following the Court's decision, I decided to look up Mr Alekseyev's Instagram account.
I found on Instagram, for example, what appears to be the post that the Court cites as saying “it [was] time to set fire to the European Court of Human Rights”. The post consists of a picture of the Court over which are superimposed three images of flames, next to which is a short text which reads (according to Google Translate, on which I rely): "I decided to become an actionist like Pavlensky. It's time to burn the European Court of Human Rights. For human rights are no longer there. Only tax-paying bureaucrats". Pavlensky would appear to be a "Russian contemporary artist".
This particular post has received 13 "likes" and the account has 1,704 followers. I am not an expert on social media but I think it is reasonable to ask how "public" this post and others like it really are. In the context of a world saturated by social media is it realistic to conclude that a post on an account with less than 2000 followers, and which has been "liked" in such limited numbers, was designed to "ensure the widest possible circulation" of the "accusations and insults"? I accept that the Instagram account is publicly visible - since I have been able to access it - but is it really achieving the "widest possible circulation" in the way the Court suggests?
Social media experts will no doubt comment on this in the future but, to my mind, most social media accounts do not reach the "widest possible circulation" but, on the contrary, reach a very small group of people who are interested enough to read them. This seems to be the case with Mr Alekseyev's account. I wonder whether, in fact, Mr Alekseyev would have reached a larger audience if he had taken the "old fashioned" action of printing out his social media posts and putting them in the window of his house for passers-by to see?
The Court, perhaps, has been too quick to conclude that just because a thing is said on the Internet that it reaches a wide public. In fact - as the Court should know from its own attempts to convey information via its website - audiences of certain material will often remain extremely small and the "reach" of such information will be extremely limited.
The Court could, therefore, have been much more expansive about why it considers that Mr Alekseyev's statements resulted in serious defamation or injury to the Court and its judges. In simple terms, did the social media content really "harm and tarnish the image and reputation" of the Court as alleged?
Freedom of speech?
The Court's decision also raises questions about the extent to which people in Europe have a right to freedom of expression in respect of voicing opinions about the Court.
Article 10 of the Convention protects the right to freedom of expression, which includes the right "to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers". This right can, of course, be subject to legally prescribed and legitimate restrictions that are necessary in a democratic society but, crucially, the expression of information and ideas that "offend, shock or disturb the State or any sector of the population" are protected (Handyside v the united Kingdom, § 49).
In the Court's view, Mr Alekseyev's statements went beyond "the limits of normal, civic and legitimate criticism". However, the Court did not explain what these "limits" are or why, and to what extent, Mr Alekseyev's statements exceeded them.
The Court's decision can therefore be said to have created a "vagueness" about what counts as "normal, civic and legitimate criticism" and what does not.
For example, the Court's decision seems to suggest that calling a judge in the Court "homophobic" goes beyond "the limits of normal, civic and legitimate criticism". This makes me think of published comments, which I wholly agree with, made about "Judge Dedov’s outrageously homophobic" statements in a recent judgment by the Court. Is referring to Judge Dedov as "homophobic" a "normal, civic and legitimate criticism"? Or is it "virulently and personally offensive and threatening"?
Calling someone "homophobic" is arguably very different to, for example, referring to people as “European bastards and degenerates”, “freaks”, “venal scum” and “idiotic”. But, arguably, calling someone a "degenerate" is also very different to calling them "idiotic".
In my view, the Court has not been sufficiently precise in outlining what exactly it objects to and, importantly, justifying its objection. Inevitably, then, this has the potential to have, as Judges Keller, Serghides, and Elósegui note, a "chilling effect" on freedom of speech.
Must people always "respect" and "trust" the Court to be applicants before it?
To my mind, one of the most serious questions raised by the Court's decision is the extent to which an applicant that shows a level of "disrespect" for and lack of "trust" in the Court on social media will now lose their ability to seek the protection of the Court.
The decision of the Court appears to create the new principle that applicants will lose their right of individual application if they say things on social media that display a lack of respect for and a lack of trust in the Court.
This is an extremely dangerous principle because, as Judges Keller, Serghides, and Elósegui state, the Court "exists to protect and realise this right [of application] for all applicants, regardless of their manners or propriety".
The Court's decision sends the very worrying message that it will only deal with nice, polite, and well-mannered people. Unfortunately, people who are suffering serious human rights abuses sometimes do not meet such standards. On the contrary, sometimes such people become extremely frustrated and - regrettably - "lash out" and make offensive statements. And some people, for whatever reason, might never, in any circumstances, meet the standards of social behaviour that the Court appears to require.
But should the Court take into account the social behaviour of applicants outside of the Court? Most judges, I presume, understand that the essence of administering justice involves treating people equally and fairly. In England and Wales, for instance, all judicial office holders take an oath to "do right to all manner of people [...] without fear or favour, affection or ill will”. The Court's judges take an oath to "exercise my functions as a judge honourably, independently and impartially".
Does the Court's decision to take Mr Alekseyev's social behaviour into account really meet these standards? Or has the Court legitimised judges taking into account extraneous factors to the cases that they are considering and, as a consequence, mandated them not to treat people equally, "honourably, independently and impartially"? Has the Court said, in effect, that there are two classes of people that come before it, those that respect and trust the Court and those that do not, and only one of these classes of people may seek its protection?
Moreover, has the Court opened the door to governments, every time that they are required to defend themselves before the Court, looking up an applicant's social media history and presenting it to the Court as evidence that the applicant has been "disrespectful" of the Court or has a lack of "trust" in it? Has the Court created an environment in which governments will now "dig about" on the Internet to find material to discredit an applicant?
I think the Court has potentially created the very dangerous principle that people who behave badly on social media are at risk of losing protection of their human rights. As Judges Keller, Serghides, and Elósegui argue, this is dangerous because it involves "depriving applicants of what is often the only recourse left to them in order to restore their fundamental rights".
Last week, I had the great honour of giving the third Annual Belfast Pride Law Lecture at Queen's University. In that lecture, I examined the intensification of attacks on the legitimacy of the Court and how such attacks usually use the most unpopular judgments of the Court – such as those on the rights of prisoners – as a platform to appeal to people who hold the (sadly now popular) view that limitations should be placed on its powers. I argued that such "popularism" is detrimental to the Court’s mission, which is to provide individual relief to those suffering a violation of human rights and to raise the general standards of protection of human rights in Europe. If the Court is to fulfil this mission then this will involve it, at times, issuing deeply unpopular judgments and, crucially, us accepting them. I went on to argue that we need to foster and promote a climate in which the Court feels empowered to take decisions that best protect human rights, regardless of when these decisions are unpopular with the majority of people in Europe and their governments. In such a climate, the Court will be more inclined to reach the best moral decisions and, as a consequence, fully protect the rights of people under the Convention.
As I gave this lecture, the Court's decision about Mr Alekseyev's social media statements was in the back of my mind. I draw from the Court's decision the conclusion that if we (the public) are to empower the Court in the way that I have described above, then the Court must ensure that its activities always reach the highest standards in the delivery of justice. I do not think the Court's decision in Mr Alekseyev's case reaches these standards. I do not endorse or defend Mr Alekseyev's statements - I doubt many people would - but I do think the Court should have set these statements aside and dealt with Mr Alekseyev's applications, which contained very serious complaints about sexual orientation discrimination. As the Court is aware, when it deals with an individual application it is often dealing with a problem that affects a whole group of people (in this case, LGBT people) and declaring Mr Alekseyev's applications inadmissible could have potentially deprived that entire group of people redress under the Convention (this did not happen because, since there were other applicants involved in the case, the Court did proceed to consider the complaints and find violations of the Convention).
The Court should have been able to "rise above" the statements made by Mr Alekseyev and, being the "bigger person", deal with the substance of the applications. As I stated above, if the Court considered that the statements transgressed any law then it could have referred them to the relevant domestic authorities to deal with. What it should not have done is use a provision in the Convention to retaliate against Mr Alekseyev and punish him for his statements. I do not think the Court's decision will inspire, among people in Europe, the "respect" for and "trust" in the Court that the Court demands. On the contrary, I fear that the Court's decision may inspire a few more people to believe that judges in the Court are a "priestly caste" - as Jonathan Sumption likes to (absurdly, in my view) call them - who are somewhat disconnected from and remote to the "real world".