That hate-speech victims (who have sued unsuccessfully in a CoE member state) should obtain redress in Strasbourg is hardly surprising nowadays and ought not to constitute ‘news’. Yet their cases continue to attract interest for various reasons, including the intricate legal issues they often give rise to. Association Accept and Others, on which the ECtHR delivered judgment on 1.6.21, is the latest such application. It was brought by the organisers of the screening of a film on same-sex families and members of the LGBT community (“the individual applicants”) who had been “bullied and insulted” by far-right “intruders”. This blog will focus on the Court’s examination of the individual applicants’ grievances concerning the conduct of the police officers who were supposed to provide them with protection and the outcome of the investigation into the criminal complaint they lodged against the intruders and the police.
As expected, the ECtHR decided that this was not an Article 3 ECHR degrading-treatment case (cf. critique of Aghdgomelashvili and Japaridze). It preferred to approach it under Article 8, which protects psychological integrity. The Court recalled that not every interference with the latter raises Convention issues – as per previous judgments transposing to the area of hate speech the “minimum level of seriousness” test developed in respect of the right to reputation. Contrary to what has been argued, this does not give rise to serious conceptual issues. It is true that, in theory, it could result in “asymmetries”: Cases involving the balancing of respect for private life and freedom of expression may be examined under Article 8 or 10 (depending on who has lost at national level). The angle applied should not change the outcome (you should lose a case under Article 10 that your opponent would have won had s/he invoked Article 8). The “rights of others” may, nevertheless, justify an interference under Article 10 § 2 independently of whether they qualify for protection under Article 8 (because of the threshold). However, the asymmetry in question will not easily materialise, since the ECtHR does not make much of the “minimum level” test in practice, as shown by judge Ktistakis in F.O..
Article 8 could not but apply in Association Accept and the Court registered a violation of Article 14, in conjunction with this provision. This resulted from the authorities’ failure (a) “to protect the individual applicants’ dignity” during the incident, and (b) “to investigate in an effective manner whether the verbal abuse directed towards (them) constituted a criminal offence motivated by homophobia.” Although the ECtHR was at pains to stress that not “every utterance of hate speech must attract … prosecution”, it clearly considered that a criminal-law remedy was required in this case. Association Accept follows, therefore, Karaahmed, R.B., Kiraly and Domotor, Alkovic and Beizaras and Levickas in recognising an ECHR duty to prosecute hate speech targeting individuals. It is only when the target is an entire ethnic or religious group that the ECtHR seems to consider that a civil action would constitute sufficient protection under Articles 8 and 14 (see Behar and Gutman and Budinova and Chaprazov, read together with Panayotova and Others).
What makes, however, Association Accept rather interesting is the ease with which the Court attributed the investigation’s defectiveness to prejudice against the applicants: the police reports on the incident had not mentioned homophobia and the prosecutor’s office had used biased language, qualifying for example the complainants as “followers of same-sex relations”.The Court’s willingness to engage with subjective-impartiality complaints is a positive development (for earlier cases where this line of argument had not been followed see Stavros here). It is also encouraging that the ECtHR chose to examine allegations about biased investigation of incidents involving private hate speech under the “procedural limb” of Article 8 rather than Article 13 (cf. Beizaras and Levickas).
All in all, Association Accept is a noteworthy judgment that helps finetune ECHR-standards regarding hate speech. Probably, it will not be Strasbourg’s last word on this sensitive issue; it might, therefore, be worth repeating here the call made elsewhere for a more nuanced ‘context-specific’ approach to the duty to use criminal law to combat what has become a real scourge for today’s European societies (Stavros in Coercive Human Rights).