Expressing the view that "cops" are "lowbrows and hoodlums" who ought to be "ceremonially burnt", and why this is relevant to debates about hate speech

The Third Section of the European Court of Human Rights has given its judgment in the case of Savva Terentyev v Russia, unanimously finding a violation of Article 10 of the Convention (freedom of expression).

The case raises the question of what counts as "hatred" in a society and, as such, is relevant to considerations of how and when the criminal law should regulate hatred on, for example, the grounds of sexual orientation.

The facts

In February 2007, Mr Savva Sergeyevich Terentyev, a Russian national, wrote a comment on a blog about the conduct of police officers during an election campaign in the Komi Republic of the Russian Federation.

Mr Terentyev's comment, which he later stated "represented his emotional and spontaneous reaction" to events, was as follows:

"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.”

In July 2008, Mr Terentyev was convicted under Article 282 § 1 of the Russian Criminal Code for “having publicly committed actions aimed at inciting hatred and enmity and humiliating the dignity of a group of persons on the grounds of their membership of a social group”.

An appeal against the conviction failed when Mr Terentyev argued that the trial court had deliberately extended the scope of the term “social group” to encompass police officers and that it had not been shown that his statement had, indeed, posed a danger to society.

Mr Terentyev's case under Article 10 of the Convention

Mr Terentyev argued in the Court that his conviction constituted an unjustified interference with his right to freedom of expression guaranteed by Article 10 of the Convention.

Mr Terentyev argued that the law under which he had been convicted - which prohibits "[a]ctions aimed at inciting hatred or enmity and humiliating the dignity of an individual or a group of individuals on the grounds of gender, race, ethnic origin, language, background, religious beliefs or membership of a social group" - was designed to protect "vulnerable social groups, such as, for instance, homosexuals".

Extending "social group" to include police officers, Mr Terentyev argued, amounted to an abusive application of the criminal law.

Mr Terentyev also argued that his criminal prosecution and conviction had been the result of a selective and arbitrary application of the law and that it was not “necessary in a democratic society”.

Mr Terentyev "conceded that the reference to Auschwitz and allusion to the practices used by the Nazis had been particularly inappropriate; he pointed out that he sincerely regretted having used that reference".

The Court's judgment

The Court proceeded on the assumption that the interference with Mr Terentyev'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 key question, therefore, was whether the interference with 
Mr Terentyev's freedom of expression was necessary in a democratic society.

In answering this question, the Court stated that Mr Terentyev's comments showed "his emotional disapproval and rejection of what he saw as abuse of authority by the police" and conveyed "his sceptical and sarcastic point of view on the moral and ethical standards of the personnel of the Russian police". The comments were "a scathing criticism of the current state of affairs in the Russian police and, in particular, the lack of rigour in the recruitment of their personnel".

In respect of the reference to the Auschwitz concentration camps and to the Nazis’ killing practices, the Court stated that this was a "provocative metaphor, which frantically affirmed" Mr Terentyev's "wish to see the police 'cleansed' of corrupt and abusive officers ('infidel cops'), and was his emotional appeal to take measures with a view to improving the situation". However, the Court also stressed that this interpretation should "not be taken as an approval of the language used".

Having considered various factors, the Court concluded that, "although the wording of the impugned statements was, indeed, offensive, insulting and virulent", they "cannot be seen as stirring up base emotions or embedded prejudices in an attempt to incite hatred or violence against the Russian police officers". Instead, 
Mr Terentyev's comments should be seen as an "emotional reaction to [...] abusive conduct of the police personnel" which did not "provoke any violence with regard to the Russian police officers" or pose "a clear and imminent danger which required the applicant’s criminal prosecution and conviction".

Mr Terentyev's prosecution and conviction, therefore, did not meet a “pressing social need” and was disproportionate to the legitimate aim pursued. Consequently, the interference with 
Mr Terentyev's freedom of expression was not “necessary in a democratic society”. 

Key point on the regulation of "hatred" by the criminal law

In reaching its judgment, the Court made an important point about how states should approach the regulation of hatred directed at certain groups - such as LGBT people - by means of the criminal law.

The Court stressed that "it is vitally important" that criminal law provisions that regulate expressions intended to stir up, promote or justify violence, hatred or intolerance "clearly and precisely define the scope of relevant offences".

Moreover, and crucially, the Court stressed that such criminal law provisions should be "strictly construed in order to avoid a situation where the State’s discretion to prosecute for such offences becomes too broad and potentially subject to abuse through selective enforcement".

In other words, it is important to ensure that anti-hatred legislation is formulated so as to clearly apply to particular individuals or groups of people that, by virtue of their social status, require such protection and not, as in this case, in ways that allow any person or group who is the subject of strong criticism to claim that this criticism constitutes "hatred".

The Court's judgment reminds us that the concept of "hatred" should not encompass every expression that is "vulgar" or "offensive" but, rather, should extend only to those forms of expression that are intended to stir up, promote or justify violence, hatred or intolerance against individuals or groups who are, in fact, vulnerable.