Case Comment: Atamanchuk v. Russia (Application No. 4493/11)
Stephanie Wayne Tung Tai[*]
Circumstances of the Case
On March 1, 2008, a local Russian newspaper with a circulation of approximately 10,000 published an article written by the Applicant titled “Why I will not vote in these elections” (“the Article”). The contents of the Article included reasons why the Applicant would abstain from voting in the presidential election on March 2, 2008. The Applicant’s second reason for abstaining was due to the following:
Secondly, in fifteen years of ‘new style’ democracy no Russian person has seen anything good. He has been pushed down to the level of a simpleton who is to serve various small ethnic groupings that call themselves ‘republics’, within Russia or elsewhere… ‘We will be victorious over you all. We hold all these Kuban people,’ they say during their closed meetings in their own language that 99% of Russians do not understand… But they will speak Russian later, when they have totally paralysed our will. That is when they will start to burn, slaughter, rape, rob and enslave, in line with their barbaric ideas, as it was in Chechnya.[1]
A report dated January 29, 2010 by professionals in both linguistics and psychology stated the following: the Applicant used what could be described in linguistics as hate speech or aggressive language that would be insulting to any ethnic group, and the Article contained phrases disclosing negative attitudes towards groups on the basis of their ethnicity, language, and religion.[2]
The Lazarevskiy District Court of Sochi convicted the Applicant on the basis of inciting hatred and enmity and debasing the human dignity of a person or group of people on account of their ethnicity, language, origin, and religious beliefs. The Applicant appealed and on September 8, 2010, the Krasnodar Regional Court upheld the judgment, relying on the expert reports. The Applicant subsequently took the case to the European Court of Human Rights.
The European Court of Human Rights’ Decision (“the Court”)
The Applicant complained under Article 10 of the European Convention on Human Rights (“the Convention”). Article 10 of the Convention reads, in its relevant parts, as follows:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others…
The Applicant complained that his criminal conviction allegedly violated Article 10 of the Convention. At the outset, the Court stated that the Applicant’s reasons for abstaining from voting suggested that people of Russian ethnicity were suffering and non-Russian minority groups were to blame.[3] The Court stated that it was “questionable” whether the content of the Article was capable of contributing to public debate.[4] In arriving at this opinion, the Court compared the present case to Bedat v. Switzerland, where the subject of an article was “a matter of public interest” as it concerned the criminal investigation into the Lausanne Bridge incident, which was a “highly exceptional incident.”[5] Conversely, the subject of the Article in the present case was merely about the Applicant’s reasons for abstention and was not a matter of public interest, given that the specific contents did not contribute to public debate but merely emanated hatred and enmity towards others. The Court stated that the wording of the Applicant’s statements could reasonably foment prejudice against non-Russian ethnic groups. Although the Applicant did not explicitly call for violence, it was nonetheless within the Russian authorities’ margin of appreciation to act.[6] The margin of appreciation refers to Russia’s discretion to act under the Convention. Given the hatred, enmity, and prejudice towards non-Russian ethnic groups, the Court stated that there was no violation of Article 10 in the context of the Russian legislation aimed at fighting hate speech.
Comment
This case encapsulates traditional debates regarding freedom of expression, censorship, and the limits of tolerance. These debates question how much weight should be given to freedom of expression in sensitive cases where speech promotes violence, enmity, and prejudice towards others and censorship is allowed to take place in order to prevent said prejudice. As stated by Kevin Boyle, the core difficulty in governing freedom of expression lies in the fact that two human rights are in conflict: the freedom to advocate opinions versus the right not to be a victim of prejudice.[7] Thus, to favor freedom of expression and the right to advocate opinions is to diminish the right not to be a victim of prejudice.[8] Given the two conflicting human rights, the Court must carefully decide when it is necessary to censor expression in order to avoid distorting the careful balance within freedom of expression.
The Court explicitly states the need to promote tolerance in a democratic society:
Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. Subject to paragraph 2 of Article 10, freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (internal citation omitted).[9]
The Court’s decision in the present case is also coherent with its previous jurisprudence that the Court will condemn hate speech where it is appropriate. This decision echoes the jurisprudence in Gunduz v. Turkey that:
[T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance… [10]
The Court maintains its stance that freedom of expression is fundamental to a democratic society. However, the Court also emphasizes that expression which amounts to “wanton denigration” may fall outside the protection of Article 10.[11] Whilst the Court maintains the position that some forms of hate speech may be “capable of contributing to the public debate” on the relevant issue and therefore may be protected by Article 10, the present Article did not fall under such category.[12] Analysis of precedent shows the Court’s recognition of the destructive nature of hate speech in a democratic society; prejudicial messages might gain credence and lead to discrimination or violence of a particular group. The Court maintains an extensive view of hate speech and adopts the definition stated by the Committee of Ministers of the Council of Europe in 1997. This definition states that hate speech encompasses “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”[13]
By upholding Russia’s margin of appreciation, the Court recognizes the potential harm non-violent hate speech may cause and the fact that hate speech undermines the ability of individuals to live without facing hostility and discrimination. Significantly, the Court’s decision fundamentally re-emphasizes that, although democratic societies are tolerant, they are not inert.
[*] Barrister-at-Law, Hong Kong.
[1] Atamanchuk v. Russia, App. No. 4493/11, 8 (Feb. 11, 2020), https://hudoc.echr.coe.int/spa#{%22itemid%22:[%22001-200839%22]}.
[2] See id. at 19.
[3] Id. at 53.
[4] Id. at 62.
[5] Bedat v. Switzerland, App. No. 56925/08, 64 (Mar. 29, 2016), https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-161898%22]}.
[6] Atamanchuk at 64.
[7] Kevin Boyle, Overview of a Dilemma: Censorship Versus Racism, in Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination 1 (Sandra Coliver ed., 1992).
[8] Id.
[9] Atamanchuk at 46.
[10] Gunduz v. Turkey, App. No. 35071/97, 40 (Dec. 4, 2003), http://hudoc.echr.coe.int/eng?i=001-61522.
[11] Atamanchuk at 47
[12] Bedat, supra note 5.
[13] Comm. of Ministers, Council of Eur., Recommendation No. R (97) 20 of the Committee of Ministers to Member States on “Hate Speech” (1997).