On 3rd December 2024, the European Court of Human Rights (ECtHR/Court) delivered its decision in the case of Yevstifeyev and Others v. Russia [App. No. 226 of 2018]. In Yevstifeyev, the ECtHR addressed two distinct applications, wherein the first application involved homophobic verbal assaults and threats against LGBTI activists, which the Court deemed a violation of Article 14 in conjunction with Article 8 of the European Court of Human Rights (ECHR/Convention). In contrast, the second application concerned a satirical video portraying a ‘Gay Hunt,’ which the Court found did not meet the ‘threshold of severity’ to constitute a violation. In this contribution, I argue that the while ECtHR approach in the first application is progressive in terms of evolving the State’s positive obligations under the Convention, the second application reasoning raises significant questions about the Court’s approach to hate speech, particularly regarding the distinction between context and content, intent and effect, and the application of the ‘threshold of severity’ test.
The Case of Yevstifeyev and Petrov
In the first application, the Applicants were activists who participated in a rally in St Petersburg. During the rally, one of the politicians and members of the St Petersburg Legislative Assembly shouted insults and threats at the LGBTI members, calling them ‘perverts’, ‘scumbags’, and ‘AIDS-ridden’ and alleging the participants as paedophiles. He urged that all the participants (including Applicants) should be liquidated, thrown into the river, crushed with tanks, ‘cast into the cauldron’ and should ‘croak from Aids.’ He also threatened the Applicants saying ‘I am going to rip off your head” and called them, “Faggot! Absolute faggot. Faggot, faggot, faggot, get out of here. I will give you a holed spoon.” (an offensive prison slang term). When the Applicants filed criminal complaints against Milonov, the St. Petersburg Investigative Committee dismissed their claims, stating he was merely expressing personal opinions. Later, when the Applicants pursued administrative and civil claims under Russia’s CAO and Civil Code, the Kirovskiy District Court dismissed their civil claim, on the reasoning that the Applicants could not have heard the statements due to background music. Appeals to the St. Petersburg City Court, the Supreme Court of Russia, and cassation courts were all rejected, affirming that Milonov’s statements did not constitute actionable violations.
In the second application, the Applicant filed a complaint about a satirical video portraying a ‘Gay Hunt’ in the year 2035. The video showed armed hunters shooting a gay man and was created by a well-known comic actor as a parody of pro-government media that had urged voters to support constitutional amendments defining marriage as between one man and one woman. The video ended with the hunters posing next to a dead gay man, with text encouraging viewers to vote for constitutional amendments that would authorize ‘hunting homosexuals.’ The video was viewed 120,000 times and received comments supporting violence against gay people. The Applicant filed both criminal and administrative complaints arguing that the video incited violence against gay people. The District Court rejected the Applicant’s complaint, finding the police decision lawful and well-reasoned. The Moscow City Court upheld this ruling. Similarly, the Moscow prosecutor refused to open an administrative offence case, accepting the video creator’s explanation that it was meant to mock homophobia by exaggerating it to an absurd level.
An ECtHR Analysis: The Thin Line Between Satire and Hate
The ECtHR, on the first application, held that Russian authorities failed to fulfil their positive obligation to respond adequately to homophobic verbal assault and physical threats against the Applicants. The Court emphasized that cases involving conflicts between Article 8 and Article 10 require careful balancing. It held that Russian authorities failed to recognize this conflict or conduct a proper balancing exercise, focusing exclusively on protecting the speaker’s freedom of expression while disregarding the Applicants’ rights. [¶71]. The Court rejected the domestic authorities’ reasoning that the Applicants weren’t personally affected because the statements targeted a group rather than named individuals. [¶73-74]. The Court also rejected the domestic courts’ claim that the statements could be interpreted neutrally, noting they were ‘openly homophobic and particularly aggressive and hostile in tone.’ [¶75] The Court concluded that failure to address such incidents can normalize hostility and encourage further discriminatory acts, ultimately finding a violation of Article 14 taken in conjunction with Article 8. [¶76-77]
The ECtHR, on the second application, held that the Applicant could not be considered a victim of violations of Articles 8 and 14 of the Convention. The Court first established that the video in question contained general negative stereotyping of the LGBTI community rather than directly targeting the Applicant. While acknowledging that negative stereotyping of a group can impact members’ sense of identity and self-worth, the Court outlined key factors for determining Article 8 applicability: “group characteristics, the content of negative statements, and context of the statements”. [¶52] The Court recognized that the Russian LGBTI community is a vulnerable group requiring special protection and noted the video’s wide reach due to the creator’s celebrity status. [¶54] However, the Court determined that the video did not reach the required ‘threshold of severity’ to affect the Applicant’s private life because: it was political satire and a parody of another pro-constitutional amendment video [¶55]; it appeared to mock homophobia rather than propagate it; and it constituted commentary during an election campaign, where ‘a certain vivacity of comment may be tolerated.’ [¶57] The Court concluded that while the Applicant’s feelings were “understandable,” they ‘alone cannot set the limits of freedom of expression’ (Vajnai v. Hungary, 2008 and Ibragim Ibragimov v. Russia, 2018), and the video was ultimately a political satire on a matter of public interest that did not reach the severity threshold required to affect the private life of LGBTI community members. [¶59]
Expanding State’s Positive Obligations: First Application
The ECtHR has significantly evolved its stance on states’ positive obligations regarding speech regulation in cases involving the LGBT community. In the first application, the Court reinforced the principle that states have a positive obligation to respond to homophobic hate speech targeting groups, even when not explicitly naming individuals. [¶67] The Court rejected Russia’s argument that Milonov’s threats (“liquidate,” “cast into the cauldron”) and slurs (“perverts,” “AIDS-ridden”) against LGBTI rally participants were mere opinions protected under Article 10. Drawing on precedents like Beizaras and Levinas v. Lithuania, 2021, where Lithuania failed to investigate homophobic online comments, and Association ACCEPT v. Romania, 2021, which condemned authorities’ inaction against football fans’ anti-LGBTI chants, the ECtHR emphasized that states must “effectively investigate and punish” hate speech to protect vulnerable minorities [¶67 & ¶73]. Crucially, it dismissed domestic courts’ reasoning that group-directed attacks did not personally affect Applicants, affirming that systemic hostility against a minority group inherently impacts members’ dignity and safety—a principle previously applied to racist speech in R.B. v. Hungary, 2016 and Király and Dömötör v. Hungary, 2021 [¶74].
By requiring states to balance free speech against the rights of marginalized communities, the ECtHR extended the rationale of Aksu v. Turkey (2012), which recognized group-based stereotyping as harmful to private life, to overtly violent rhetoric. While cases such as Vejdeland v. Sweden (2012) permitted restrictions on homophobic speech under Article 10, Yevstifeyev uniquely framed inaction as a discriminatory failure under Article 14. The Court condemned Russia’s narrow focus on the speaker’s intent rather than the speech’s “aggressive and hostile tone” and its capacity to incite violence. [¶75] By asserting that unchecked hate speech perpetuates systemic inequality, the ECtHR established that states’ positive obligations include dismantling environments where discrimination thrives, even in the absence of direct physical harm. [¶77] In Yevstifeyev, the Court further clarified that authorities must conduct a balancing exercise between freedom of expression and the right to private life, particularly for vulnerable minorities, and cannot dismiss complaints solely because victims belong to a broadly targeted group. [¶67 & ¶71] By condemning Russia’s failure to address the “openly homophobic and particularly aggressive” statements as discriminatory, the ECtHR reinforced that systemic indifference to group-directed hate speech perpetuates hostility and violates anti-discrimination protections under Article 14. [¶75-77]
Problematic Approach in the Second Application
The ECtHR’s ruling in the second application reflects persistent ambiguities in its hate speech jurisprudence, particularly in balancing context versus content, intent versus effect, and applying the ‘threshold of severity’ test. These issues highlight tensions between safeguarding free expression and protecting marginalized groups from harm/prejudicial speech.
(i) Context vs. Content: Satirical Framing Overrides Harmful Imagery
While acknowledging that the Russian LGBTI community “can be regarded as a particularly vulnerable group needing heightened protection from stigmatizing statements” [¶53], the Court’s focus on the satirical intent and political context of the video undermined this recognition. The Court prioritized the video’s satirical context over its explicit violent content, characterizing it as “political parody” despite its graphic depiction of armed hunters killing a gay man and text urging constitutional amendments to legalize such violence. [¶55] This contrasts with precedents like Vejdeland (2012), and Beizaras (2021). By dismissing the video’s violent content as exaggerated satire, the ECtHR weakened the principle from Perinçek v. Switzerland (2015) that even abstract calls for violence require scrutiny based on their social context and capacity to harm. The ECtHR’s rationale risks creating a loophole where harmful rhetoric is excused as hyperbole, undermining protections for vulnerable groups. Moreover, the ECtHR in its reasoning, referred to Sanchez v. France (2013) and M’Bala M’Bala v. France (2015), to justify tolerating “vivacity of comment” in political satire. [¶57] However, it is pertinent to note that those cases involved direct criticism of public figures, not vulnerable minorities. ECtHR’s reasoning is contrary to Lilliendahl v. Iceland (2020), where homophobic Facebook posts were penalized despite claims of humorous intent, and Belkacem v. Belgium (2017), which criminalized extremist videos for their capacity to incite hatred, irrespective of satirical framing. By privileging “public interest” in political discourse over the dignity of LGBTI individuals, the Court eroded the precedent set in Identoba and Others v. Georgia (2015), which prioritized protecting minorities during public debates.
(ii) Intent vs. Effect: Creator’s Purpose over Documented Harm
The ECtHR accepted the creator’s claim that the video aimed to ‘mock homophobia through absurdity’ [¶59], aligning with Jersild v. Denmark (1994), where journalistic intent shielded a documentary featuring racist speech. However, unlike Jersild (1994), the “Gay Hunt” video generated 120,000 views and comments endorsing violence against LGBTI individuals—a direct causal effect the Court dismissed as incidental. [¶50] This neglects the Rabat Plan’s emphasis on incitement potential, which mandates assessing both intent and impact. Precedents like Erbakan v. Turkey (2006) and Soulas v. France (2008) penalized speech that risked inciting violence, even without explicit intent. By isolating intent from effect, the ECtHR created a precedent where satirical framing immunizes harmful content, regardless of its real-world consequences. The ECtHR’s reasoning risks normalizing hate speech disguised as satire, particularly in jurisdictions with weak protections for LGBTI rights like Poland, and Hungary. By requiring direct, “individualized harm” rather than recognizing “collective degradation”, the ECtHR approach weakens the Beizaras (2021) principle that states must combat ‘prejudicial speech’ fostering systemic discrimination. This contrasts with Women’s Initiatives Supporting Group v. Georgia (2021), where authorities were faulted for failing to prevent mob violence incited by anti-LGBTI rhetoric. The reasoning of the Court also sidesteps the Court’s obligation under Nachova v. Bulgaria (2005) i.e., to interpret the Convention as a “living instrument,” adapting to evolving threats against marginalized communities.
(iii) Re-Evaluating the ‘Threshold of Severity’ Test: Inconsistent Application
The Court’s ‘threshold of severity’ failed to adequately consider the real-world harm stemming from such depictions. The factors outlined in Budinova and Chaprazov (2021) and Behar and Gutman (2021) [¶52]—group characteristics, content of negative statements, and context—were not weighted appropriately in the Court’s analysis. This narrow interpretation also conflicts with Aksu v. Turkey (2012), where generalized anti-Roma stereotypes were deemed harmful to individual dignity, and Balsytė-Lideikienė v. Lithuania (2023), which found that dehumanizing rhetoric against migrants met the severity threshold. The ECtHR’s criteria—group vulnerability, statement content, and social context [¶52]—were inconsistently applied:
Vulnerability: While recognizing Russian LGBTI people as a marginalized group, the Court downplayed their systemic stigmatization in a country with rampant anti-LGBTI.
Content: The video’s violent imagery and explicit call to “hunt homosexuals” were minimized as “political commentary,” diverging from Lešník v. Slovakia (2003), where abstract xenophobic statements were penalized for fostering intolerance.
Context: The video’s release during a constitutional referendum campaign, a period of heightened anti-LGBTI rhetoric, was deemed a mitigating factor, contrary to Savva Terentyev v. Russia (2018), where political tension heightened the risk of harm from hate speech. [See, Dirk Voorhoof here]
Moreover, the Court’s approach diverges from principles established in Vejdeland v. Sweden (2012), where it ruled that “discrimination based on sexual orientation is as serious as discrimination based on ‘race, origin or colour’.” If the video had depicted the hunting of racial or ethnic minorities in a supposedly ‘satirical’ context, would the Court have been so quick to dismiss its potential impact? This inconsistency raises significant questions about whether the Court is fully applying its standards of heightened protection for vulnerable groups across different contexts. The Court’s reasoning in M’Bala M’Bala v. France (2015) is instructive. In that case, the Court found that a comedy performance containing anti-Semitic elements constituted ‘a demonstration of hatred and anti-Semitism and support for Holocaust denial’ despite its supposedly humorous context. The Court recognized that ‘under the guise of a comic production, the Applicant had been using his artistic work as a medium to convey to his audience ideologies that ran counter to the Convention’s underlying values.’ Yet in the present case, the Court accepted at face value the claim that the video was merely satirizing homophobia rather than potentially reinforcing it. The ‘threshold of severity’ test as applied by the Court fails to adequately consider the long-term psychological & social impact of dehumanizing portrayals on vulnerable communities, as noted in the case of Lewit v. Austria, 2019.
Lessons for Future from Past Critiques
The ECtHR approach in the second application echoes critiques highlighted in Handyside v. UK (1976) and Perinçek v. Switzerland (2015), where the ECtHR’s ad hoc balancing of free speech and dignity led to inconsistent outcomes [See Jacob Mchangama & Natalie Alkiviadou here]. Without a clearer definition of “severity” or guidance on weighing intent versus impact, the Court perpetuates ambiguity and inconsistent application of the principles. A robust framework, aligned with the principles of the Rabat Plan and adapted to the evolving landscape of technology and online speech, would necessitate a comprehensive analysis of several key factors. This framework should scrutinize the intent behind speech, distinguishing between direct and indirect incitement, to determine if satire serves as a pretext for spreading hatred. Additionally, it should assess the imminence of harm, examining evidence of incited violence, such as comments endorsing violence, to gauge the speech’s potential impact. Furthermore, it should consider power dynamics, evaluating how factors like a creator’s celebrity status can amplify harmful stereotypes and exacerbate their effects. By integrating these elements, the framework would provide a structured approach to evaluating hate speech, ensuring that both the context and consequences of online content are thoroughly considered.
