Pastörs v. Germany concerned the conviction of a Land deputy for denying the Holocaust during a speech in the regional Parliament. The Court declared inadmissible as being manifestly ill-founded the applicant’s complaint under Article 10 (freedom of expression) of the Convention. It noted in particular that the applicant had intentionally stated untruths to defame Jews. Such statements could not attract the protection for freedom of speech offered by the Convention as they ran counter to the values of the Convention itself. In the applicant’s case, the response by the German courts, the conviction, had therefore been proportionate to the aim pursued and had been “necessary in a democratic society”.
Perinçek v. Switzerland concerned the criminal conviction of the applicant, a Turkish politician, for publicly expressing the view, in Switzerland, that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire in 1915 and the following years had not amounted to genocide..
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. Being aware of the great importance attributed by the Armenian community to the question whether those mass deportations and massacres were to be regarded as genocide, it found that the dignity of the victims and the dignity and identity of modern-day Armenians were protected by Article 8 (right to respect for private life) of the Convention.
Bonnet v. France 2022 (admissibility) concerned the criminal conviction of the applicant, known as Alain Soral, by the French courts for the offence of proffering a public insult of a racial nature against an individual or group on account of their origin or of belonging to a given ethnicity, nation, race or religion, and for the offence of questioning the existence of crimes against humanity. This conviction followed the publication, on the website “Equality and Reconciliation”, of a page headed “Chutzpah Hebdo”, a parody of the front page of the weekly Charlie Hebdo, containing the caption “historians all at sea” and a drawing representing the face of Charlie Chaplin in front of a Star of David asking the question “Shoah where are you?”, the answer being given in a number of speech bubbles, “here”, “over here” and “here too”, placed next to drawings depicting soap, a lamp-shade, a shoe without laces and a wig.
The applicant complained of a violation of his freedom of expression.The Court declared the application inadmissible, as being manifestly ill-founded, finding that, even supposing that Article 10 (freedom of expression) of the Convention was applicable, the interference with the applicant’s freedom of expression had been necessary in a democratic society. The Court took the view, in particular, that the domestic courts had provided relevant and sufficient reasons for their finding that the various elements of the offending cartoon directly targeted the Jewish Community. The cartoon and the message it conveyed could not be regarded as contributing to any debate in the public interest and fell within a category which was afforded reduced protection under Article 10 of the Convention. T
Belkacem v. Belgium concerned the conviction of the applicant, the leader and spokesperson of the organisation “Sharia4Belgium”, which was dissolved in 2012, for incitement to discrimination, hatred and violence on account of remarks he made in YouTube videos concerning non-Muslim groups and Sharia. The Court considered that the remarks in question had a markedly hateful content and that he applicant, through his recordings, had sought to stir up hatred, discrimination and violence towards all non- Muslims. In the Court’s view, such a general and vehement attack was incompatible with the values of tolerance, social peace and non-discrimination underlying the European Convention on Human Rights.
Zemmour v. France concerned the conviction and sentencing of the applicant – a well known political journalist and pundit, who published several books on politics before launching his own political career in 2021 – for the offence of inciting discrimination and religious hatred against the French Muslim community for statements made on a television show in 2016. He alleged a violation of his right to freedom of expression.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in respect of the applicant, finding that the interference with the applicant’s right to freedom of expression had been necessary in a democratic society to protect the rights of others which had been at stake in the case. In view of the context of terrorist violence in which they had occurred, the statements been made with discriminatory intent such as to call on viewers to reject and exclude the Muslim community.
Tagiyev and Huseynov v. Azerbaijan concerned the conviction of the applicants – a well-known writer and columnist and an editor – for inciting religious hatred and hostility with their remarks on Islam in an article they had published in 2006.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the applicants’ conviction had been excessive and had breached their freedom of expression. It noted in particular that the national courts had not justified why the applicants’ conviction had been necessary when the article had clearly only been comparing Western and Eastern values, and had contributed to a debate on a matter of public interest, namely the role of religion in society.
Incitement to Violence and Terrorist Support
Roj TV A/S v. Denmark concerned the applicant company’s conviction for terrorism offences by Danish courts for promoting the Kurdistan Workers’ Party (PKK) through television programmes broadcast between 2006 and 2010. The domestic courts found it established that the PKK could be considered a terrorist organisation within the meaning of the Danish Penal Code and that Roj TV A/S had supported the PKK’s terror operation by broadcasting propaganda. The Court found in particular that the television station could not benefit from the protection afforded by Article 10 of the Convention as it had tried to employ that right for ends which were contrary to the values of the Convention.
Altıntaş v. Turkeyconcerned a judicial fine imposed on the applicant for an article published in 2007 in his periodical Tokat Demokrat, describing the perpetrators of the “Kızıldere events”, among others as “idols of the youth”. The events in question took place in March 1972, when three British nationals working for NATO were abducted and executed by their kidnappers.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the interference with the applicant’s right to freedom of expression had not been disproportionate to the legitimate aims pursued. It took the view, in particular, that the expressions used in the article, about the perpetrators of the “Kızıldere events” and their acts, could be seen as glorifying, or at least as justifying, violence. It took account of the margin of appreciation afforded to national authorities in such cases and the reasonable amount of the fine imposed on the applicant. –
Stomakhin v. Russia concerned the applicant’s conviction and sentence to five years in jail for newsletter articles he had written on the armed conflict in Chechnya, which the domestic courts said had justified terrorism and violence and incited hatred. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that some of the articles had gone beyond the bounds of acceptable criticism and had amounted to calls for violence and the justification of terrorism. Other statements, however, had been within acceptable limits of criticism.
Erkizia Almandoz v. Spain concerned the participation by a Basque separatist politician in a ceremony to pay tribute to a former member of the ETA terrorist organisation, and his conviction for publicly defending terrorism, receiving a one-year prison sentence and seven years’ ineligibility.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the interference by the public authorities with the applicant’s right to freedom of expression could not be deemed “necessary in a democratic society”.. In the Court’s view, no direct or indirect incitement to terrorist violence had been established, and the applicant’s speech at the ceremony had, on the contrary, advocated pursuing a democratic means of achieving the specific political objectives of the abertzale left.
Rouillan v. France concerned the sentencing of the applicant, formerly a member of the terrorist group Action directe, to a term of 18 months’ imprisonment including a suspended portion of 10 months with probation, upon his conviction as an accessory to the offence of publicly defending acts of terrorism for remarks he had made on a radio show in 2016 and which had subsequently been published on a media website.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention on account of the severity of the criminal penalty imposed on the applicant. It took the view, in particular, that the applicant’s conviction and sentencing as an accessory to the offence of defending acts of terrorism had amounted to an interference with his right to freedom of expression, and recognised that the interference had been prescribed by law and had pursued the legitimate aim of preventing disorder and crime.
Ethnic & National
Atamanchuk v. Russia 2020 case concerned a businessman’s criminal conviction for inciting hatred and enmity following statements about non Russians in an article published in a local newspaper.The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the Russian courts had given relevant and sufficient reasons in the context of the case for prosecuting and convicting the applicant and that there had been exceptional circumstances justifying the sentences imposed on him. It noted in particular that the applicant’s sweeping remarks had not contributed to any public debate and agreed with the national courts’ assessment of them as stirring up emotions or prejudices against the local population of non-Russian ethnicity.
Dink v. Turkey 2010 Firat (Hrank) Dink, a Turkish journalist of Armenian origin, was publication director and editor-in-chief of a bilingual Turkish-Armenian weekly newspaper published in Istanbul. Following the publication in this newspaper of eight articles in which he expressed his views on the identity of Turkish citizens of Armenian origin, he was found guilty in 2006 of “denigrating Turkish identity”. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that there had been no pressing social need to find Fırat Dink guilty of denigrating “Turkishness”. It observed, in particular, that the series of articles taken overall did not incite others to violence, resistance or revolt.
The author had been writing in his capacity as a journalist and editor-in-chief of a Turkish-Armenian newspaper, commenting on issues concerning the Armenian minority in the context of his role as a player on the political scene. He had merely been conveying his ideas and opinions on an issue of public concern in a democratic society. In such societies, the debate surrounding historical events of a particularly serious nature should be able to take place freely, and it was an integral part of freedom of expression to seek historical truth. Finally, the impugned articles had not been gratuitously offensive or insulting, and they had not incited others to disrespect or hatred.
Insult of State officials
Stern Taulats and Roura Capellera v. Spain concerned the conviction of two Spanish nationals for setting fire to a photograph of the royal couple at a public demonstration held during the King’s official visit to Girona in September 2007. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that the act allegedly committed by the applicants had been part of a political, rather than personal, critique of the institution of monarchy in general, and in particular of the Kingdom of Spain as a nation. It also noted that it was one of those provocative “events” which were increasingly being “staged” to attract media attention and which went no further than the use of a certain permissible degree of provocation in order to transmit a critical message in the framework of freedom of expression. Moreover, the Court was not convinced that the impugned act could reasonably be construed as incitement to hatred or violence.
Publishing Statements by a Terrorist Organisation
Ali Gürbüz v. Turkey e concerned seven sets of criminal proceedings brought against the applicant – the owner of the daily newspaper Ülkede Özgür Gündem, at the relevant time – for publishing, in the newspaper, statements by the leaders of organisations characterised as terrorist under Turkish law.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the fact that the numerous sets of criminal proceedings against the applicant had been prolonged for a considerable length of time, on the basis of serious criminal charges, did not meet a pressing social need, that the impugned measure had not been proportionate to the legitimate aims pursued, and that the measure was accordingly not necessary in a democratic society.
The Court noted, in particular, that criminal proceedings had been systematically opened, regardless of the actual content of the articles. They had in fact contained insignificant messages such as Christmas wishes which did not call for any violence, armed resistance or uprising, and did not constitute hate speech, that being an essential factor to be considered.
Gürbüz and Bayar v. Turkey concerned criminal proceedings brought against the applicants – who were respectively, at the relevant time, the owner and the editor-in-chief of the daily newspaper Ülkede Özgür Gündem – for publishing statements by A.Ö. (head of the Kurdistan Workers’ Party (PKK), an illegal armed organisation) and M.K. (president of Kongra-Gel, a branch of the PKK) in an article which appeared in their newspaper in September 2004.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in the present case, finding, in particular, that the contested interference had not been disproportionate, given, firstly, the margin of appreciation enjoyed by the national authorities in such cases and, secondly, the statute-barring and suspended sentence from which the applicants had benefited respectively. The Court recalled, inter alia, that the mere fact of having published statements by terrorist organisations could not justify media professionals being systematically convicted by the courts without an analysis of the content of the contested articles or the context in which they were written.
Özer v. Turkey (no. 3) concerned criminal proceedings brought against the applicant, the owner and editor of a magazine, over an article published in the magazine. The applicant was prosecuted and convicted of the criminal offence of providing propaganda for a terrorist organisation. He complained of an infringement of his right to freedom of expression.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the Turkish authorities had failed to conduct an appropriate analysis having regard to all the criteria set out and implemented by the Court in cases concerning freedom of expression, and that the Turkish Government had not demonstrated that the impugned measure had met a pressing social need, had been proportionate to the legitimate aims pursued and had been necessary in a democratic society. The Court noted in particular that the domestic courts’ assessment of the case had not answered the question of whether the impugned passages of the article in question could – having regard to their content, context and capacity to lead to harmful consequences – be considered as comprising incitement to the use of violence, armed resistance or rebellion, or as amounting to hate speech.
Üçdağ v. Turkey concerned the applicant’s criminal conviction for disseminating propaganda in favour of a terrorist organisation on account of two posts published on his Facebook account, as well as the rejection of his individual application to the Constitutional Court as being out of time. At the relevant time, the applicant was a public official working as an imam at a local mosque. The impugned posts had included two photographs (of individuals in uniform similar to that of PKK members and of a crowd demonstrating in a public street in front of a fire), originally shared by two other Facebook users.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that by convicting the applicant on a charge of disseminating propaganda in favour of a terrorist organisation by posting the impugned contents on his Facebook account, the domestic authorities had failed to conduct an appropriate balancing exercise, in keeping with the criteria set out in its case-law, between the applicant’s right to freedom of expression and the legitimate aims pursued (protecting national security and territorial integrity and preventing disorder and crime). . In the present case, the Turkish Government had not demonstrated that the grounds relied on by the domestic authorities to justify the impugned measure had been relevant and sufficient and had been necessary in a democratic society.
Online hate speech
Delfi AS v. Estonia 2015 (Grand Chamber) s was the first case in which the Court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal. The applicant company, which runs a news portal run on a commercial basis, complained that it had been held liable by the national courts for the offensive comments posted by its readers below one of its online news articles about a ferry company. At the request of the lawyers of the owner of the ferry company, the applicant company removed the offensive comments about six weeks after their publication.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It first noted the conflicting realities between the benefits of Internet, notably the unprecedented platform it provided for freedom of expression, and its dangers, namely the possibility of hate speech and speech inciting violence being disseminated worldwide in a matter of seconds and sometimes remaining remain persistently available online. The Court further observed that the unlawful nature of the comments in question was obviously based on the fact that the majority of the comments were, viewed on their face, tantamount to an incitement to hatred or to violence against the owner of the ferry company.
In cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, the Court considered that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. Based on the concrete assessment of these aspects and taking into account, in particular, the extreme nature of the comments in question, the fact that they had been posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction (320 euro) imposed on the applicant company, the Court found that the Estonian courts’ finding of liability against the applicant company had been a justified and proportionate restriction on the portal’s freedom of expression.
Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary 2016 This case concerned the liability of a self-regulatory body of Internet content providers and an Internet news portal for vulgar and offensive online comments posted on their websites following the publication of an opinion criticising the misleading business practices of two real estate websites. The applicants complained about the Hungarian courts’ rulings against them, which had effectively obliged them to moderate the contents of comments made by readers on their websites, arguing that that had gone against the essence of free expression on the Internet.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It reiterated in particular that, although not publishers of comments in the traditional sense, Internet news portals had to, in principle, assume duties and responsibilities. However, the Court considered that the Hungarian courts, when deciding on the notion of liability in the applicants’ case, had not carried out a proper balancing exercise between the competing rights involved, namely between the applicants’ right to freedom of expression and the real estate websites’ right to respect for its commercial reputation. Notably, the Hungarian authorities accepted at face value that the comments had been unlawful as being injurious to the reputation of the real estate websites.
It is to be noted that the applicants’ case was different in some aspects from the Delfi AS v. Estonia case (see above) in which the Court had held that a commercially-run Internet news portal had been liable for the offensive online comments of its readers. The applicants’ case was notably devoid of the pivotal elements in the Delfi AS case of hate speech and incitement to violence. Although offensive and vulgar, the comments in the present case had not constituted clearly unlawful speech. Furthermore, while Index is the owner of a large media outlet which must be regarded as having economic interests, Magyar Tartalomszolgáltatók Egyesülete is a non-profit self-regulatory association of Internet service providers, with no known such interests.
Pihl v. Sweden 2017 (admissibility) The applicant had been the subject of a defamatory online comment, which had been published anonymously on a blog. He made a civil claim against the small non-profit association which ran the blog, claiming that it should be held liable for the third-party comment.
The Court declared the application inadmissible as being manifestly ill-founded. It noted in particular that, in cases such as this, a balance must be struck between an individual’s right to respect for his private life, and the right to freedom of expression enjoyed by an individual or group running an internet portal. In light of the circumstances of this case, the Court found that national authorities had struck a fair balance when refusing to hold the association liable for the anonymous comment. In particular, this was because: although the comment had been offensive, it had not amounted to hate speech or an incitement to violence; it had been posted on a small blog run by a non-profit association; it had been taken down the day after the applicant had made a complaint; and it had only been on the blog for around nine days.
Smajić v. Bosnia and Herzegovina 2018 (admissibility) concerned the applicant’s conviction for incitement to national, racial and religious hatred, discord or intolerance following a number of posts on an Internet forum describing military action which could be undertaken against Serb villages in the Brčko District in the event of another war. The applicant alleged in particular that he had been convicted for expressing his opinion on a matter of public concern.
The Court declared the applicant’s complaint under Article 10 (freedom of expression) of the Convention inadmissible as being manifestly ill-founded. It found in particular that the domestic courts had examined the applicant’s case with care, giving sufficient justification for his conviction, namely that he had used highly insulting expressions towards Serbs, thus touching upon the very sensitive matter of ethnic relations in post-conflict Bosnian society. Furthermore, the penalties imposed on him, namely a suspended sentence and a seized computer and laptop, had not been excessive. Therefore, the interference with the applicant’s right to freedom of expression, which had been prescribed by law and had pursued the legitimate aim of protecting the reputation and rights of others, did not disclose any appearance of a violation of Article 10 of the Convention.
Nix v. Germany (admissibility) concerned the applicant’s conviction for posting picture of a Nazi leader and swastika in a blog. The applicant argued that the domestic courts had failed to take into account that his blog post was intended as a protest against school and employment offices’ discrimination against children from a migrant background.
The Court declared the application inadmissible as being manifestly ill-founded. While accepting that the applicant had not intended to spread totalitarian propaganda, to incite violence, or to utter hate speech, and might have thought he was contributing to a debate of public interest, it considered that the domestic courts could not be reproached for concluding that he had used the picture of the former SS chief Heinrich Himmler with the swastika as an “eye-catching” device, which was one of the things the law penalising the use of symbols of unconstitutional organisations had been intended to prevent (the so-called “communicative taboo”).
Domestic case-law was clear that the critical use of such symbols was not enough to exempt someone from criminal liability and that what was required was clear and obvious opposition to Nazi ideology. In the applicant’s case, the Court saw no reason to depart from the domestic courts’ assessment that the applicant had not clearly and obviously rejected Nazi ideology in his blog post. The Court therefore concluded that the domestic authorities had provided relevant and sufficient reasons for interfering with the applicant’s right to freedom of expression and had not gone beyond their room for manoeuvre (“margin of appreciation”) in the case.
Kilin v. Russia 2021 case concerned the applicant’s trial and conviction for disseminating extremist materials. The applicant in this case had been accused of posting allegedly racist video and audio files involving neo-Nazis, racial epithets, people of apparently Caucasian descent and calls to extremism on a popular online social network. He complained in particular that his criminal conviction had been in violation of his rights.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. In the circumstances of the case, and given the racist nature of the material and the absence of any commentary on such content, it found that the domestic courts had convincingly demonstrated that the impugned material had incited ethnic discord and, foremost, the applicant’s clear intention of bringing about the commission of related acts of hatred or intolerance. Lastly, the nature and severity of the penalties imposed (a suspended eighteen-month term of imprisonment with a similar period of probation and some other requirements) had been proportionate in the specific circumstances.
Standard Verlagsgesellschaft mbH v. Austria (No. 3) 2021 concerned court orders for the applicant media company to reveal the sign-up information of registered users who had posted comments on its website, the website of the newspaper Der Standard. This had followed comments allegedly linking politicians to, among other things, corruption or neo-Nazis, which the applicant company had removed, albeit refusing to reveal the information of the commenters.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the domestic courts had overall failed to balance the rights at issue and to give sufficient reasons to justify the interference with the applicant company’s rights. It considered, in particular, that the comments at issue had been
Hate Speech and Private Life of Others
Kaboğlu and Oran v. Turkey 2018 concerned newspaper articles containing threats and hate speech against the applicants, two university lecturers, attacking them for the ideas they had presented in a report addressed to the Government concerning questions of minority and cultural rights. The applicants lost their cases before the domestic courts, which took the view that the offending articles fell within legislation protecting freedom of expression. The applicants complained that the national authorities had not protected them from the insults, threats and hate speech directed against them in the press on account of the ideas they had expressed in their report.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention in respect of the applicants, finding that the domestic courts had not struck a fair balance between their right to respect for their private life and freedom of the press. It considered, in particular, that the verbal attacks and threats of physical harm made against the applicants sought to undermine their intellectual personality, causing them feelings of fear, anxiety and vulnerability in order to humiliate them and break their will to defend their ideas.
The Court also found that the domestic courts had not provided a satisfactory answer to the question of whether freedom of the press could justify, in the circumstances of the case, the damage caused to the applicants’ right to respect for their private life by passages amounting to hate speech and incitement to violence, thus being likely to expose them to public contempt.
Beizaras and Levickas v. Lithuania 2020 The applicants, two young men who were in a relationship, alleged that they had been discriminated against on the grounds of sexual orientation because of the authorities’ refusal to launch a pre-trial investigation into the hate comments on the Facebook page of one of them. The latter had posted a photograph of them kissing on his Facebook page, which led to hundreds of online hate comments. Some were about LGBT people in general, while others personally threatened the applicants. The applicants submitted that they had been discriminated against on the grounds of sexual orientation. They also argued that the refusal had left them with no possibility of legal redress.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the applicants had suffered discrimination on the grounds of their sexual orientation and that the Lithuanian Government had not provided any justification showing that the difference in treatment had been compatible with the standards of the Convention. It noted in particular that the applicants’ sexual orientation had played a role in the way they had been treated by the authorities, which had quite clearly expressed disapproval of them so publicly demonstrating their homosexuality when refusing to launch a pre-trial investigation. Such a discriminatory attitude had meant that the applicants had not been protected, as was their right under the criminal law, from undisguised calls for an attack on their physical and mental integrity.
Sexual Identity / Orientation
Lilliendahl v. Iceland 2020 (Admissibility) concerned the applicant’s conviction and fine for homophobic comments he had made in response to an online article. The applicant alleged that his conviction had breached his right to freedom of expression.
The Court held that the applicant’s complaint under Article 10 (freedom of expression) of the Convention was manifestly ill-founded and rejected it as inadmissible. It found that the applicant’s comments had amounted to hate speech within the meaning of its case- law. The Court accepted in particular the Icelandic Supreme Court’s finding that the comments had been “serious, severely hurtful and prejudicial”, and that the decision which had originally sparked the debate, concerning measures to strengthen education in schools on lesbian, gay, bisexual or transgender matters, had not warranted such a severe reaction. The domestic courts’ decisions in the case, taken after an extensive balancing exercise between the applicant’s right to freedom of expression and the rights of gender and sexual minorities, had therefore been reasonable and justified.
Association ACCEPT and Others v. Romania 2021 concerned the interruption, by a group of about 50 people who entered the venue shouting homophobic remarks, insulting and threatening the participants, of the public screening of a movie portraying a same-sex family, organised by the applicant association and attended by the other applicants. The investigation into the applicants’ criminal complaint, for incitement to discrimination, abuse of office by restriction of rights and the use of fascist, racist or xenophobic symbols in public, was discontinued by the prosecutor and their challenges thereto were unsuccessful.
The Court held, inter alia, that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention, in respect of the individual applicants, finding that the Romanian authorities had failed to discharge their positive obligation to investigate in an effective manner whether the verbal abuse directed towards the individual applicants constituted a criminal offence motivated by homophobia. In doing so, the authorities had shown their own bias towards members of the LGBT community.
The Court reiterated, in particular, that while being careful not to hold that each and every utterance of hate speech must, as such, attract criminal prosecution and criminal sanctions, comments that amounted to hate speech and incitement to violence, and were thus clearly unlawful on the face of things, might in principle require the States to take certain positive measures. Likewise, inciting hatred did not necessarily amount to a call for an act of violence or other criminal acts. Attacks on people committed by insulting, holding up to ridicule or slandering specific groups of the population could be sufficient for the authorities to favour combating racist speech in the form of freedom of expression exercised in an irresponsible manner.
The Court also emphasised that the necessity of conducting a meaningful inquiry into the possibility that discriminatory motives had lain behind the abuse was absolute, given the hostility against the LGBT community in the respondent State and in the light of the evidence that homophobic slurs had been uttered by the intruders during the incident. In the absence of such an inquiry, prejudice-motivated crimes would inevitably be treated on an equal footing with cases without such overtones, and the resultant indifference would be tantamount to official acquiescence, or even connivance in, hate crimes.