On July 16, 2019, the European Court of Human Rights (ECtHR) rejected a complaint by Nikolay Alekseyev, a well-known Russian lesbian, gay, bisexual and transgender (LGBT) activist, due to posts he made on his social media sites that the ECtHR considered “personally offensive and threatening.” See ECtHR, Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, Judgment of 16 July 2019, para. 83. While the Court went on to find that Russia violated the remaining applicants’ rights to non-discrimination and freedom of association by refusing to register three organizations that advocate for LGBT rights, the Court did not reach the merits of Alekseyev’s complaint. Instead, it found his application inadmissible as “an abuse of the right of application,” pursuant to Article 35 of the European Convention on Human Rights. See id. at paras. 76-86. A majority of the judges agreed with Russia’s argument that Alekseyev abused the right to petition the European Court when he published social media posts describing the European Court’s judges in derogatory, sexist, and threatening terms in response to a previous ruling by the Court in a separate case. See id. In that case, the Court had denied him and others monetary compensation after finding Russia responsible for human rights violations in connection with authorities’ refusal to authorize public LGBT events. See id.
The European Court is not the only human rights oversight body whose rules allow it to reject human rights complaints because of the complainant’s offensive or abusive language, but such provisions and their application to speech made or published outside of the complaint proceeding raise concerns regarding due process, access to justice, and freedom of expression. Three judges on the ECtHR issued a dissenting opinion challenging the Court’s reasoning in dismissing Alekseyev’s application and warning that the precedent set in the Court’s judgment may impact individuals’ ability to access the Court in the future and infringe on their right to freedom of speech. See ECtHR, Case of Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, Judgment of 16 July 2019 (joint partly dissenting opinion of Judges Keller, Serghides, and Elósegui).
Four Russian nationals and three LGBT rights non-governmental organizations—the Regional Public Association Rainbow House, the Autonomous Non-Profit Organisation Movement for Marriage Equality, and the Regional Public Sports Movement Sochi Pride House—brought this case before the ECtHR, alleging that the State refused to allow the organizations to register before Russian registration authorities in violation of their rights to freedom of association (Article 11), to be free from discrimination (Article 14) based on their sexual orientation, and their right of effective access to a court (Article 6). See ECtHR, Zhdanov and Others v. Russia, Judgment of 16 July 2019, paras. 1-3. The ECtHR dismissed the Alekseyev’s application, who was found to have “abused the right of individual application by insulting the Judges of the ECtHR on his social networking accounts,” but proceeded with the complaints of the remaining applicants. See id. at paras. 85-86.
Rejection of Application Due to Abusive Language
In response to a prior ECtHR decision (unrelated to this case) in which the Court rejected Alekseyev’s claims for non-pecuniary damages, he posted scanned copies of his correspondence with the Court along with a variety of insults towards the ECtHR and some its judges. See id. at paras. 77, 83, 84. The State argued that those comments constitute “an abuse of the right of individual application” and the ECtHR agreed, stating that the posts demonstrated “disrespect to the very institution to which he had applied for the protection of his rights” and rendering the application inadmissible. See id. at paras. 77, 85-86.
Article 35(a) of the Convention states that the ECtHR may deem an individual application inadmissible if it finds that “the application is … an abuse of the right of individual application.” See id. at para. 76. The ECtHR explained that “abuse” in this context is generally applied in two situations: 1) when the application is poorly-founded and frivolous or 2) when the applicant uses “particularly vexatious, contemptuous, threatening or provocative language in his communication with the Court” directed against other parties to the case or the ECtHR itself. See id. at para. 80. According to the ECtHR, this language must go beyond “normal, civic, and legitimate criticism.” See id. However, the Court highlighted that the “notion of abuse” is not limited to these two situations and stated that “any conduct on the part of an applicant that … impedes the proper functioning of the Court or the proper conduct of the proceedings before it can be considered as an abuse of the right of application.” See id. at 81.
In this case, the Court considered that the comments on Alekseyev’s social media accounts “clearly exceed the limits of normal, civic and legitimate criticism.” See id. at para. 83. While the ECtHR also notes that it will not dismiss an application on this ground should applicants who engaged in this this type of “abuse” withdraw their statements or offer an apology, Alekseyev did not delete his statements, even after a letter from the Court warning that the statements could amount to an abuse of the right of petition. See id. at paras. 80, 84. The Court concluded that it is “unacceptable to seek the protection of a court in which the applicant has lost all trust,” and held his application inadmissible. See id. paras. 85-86.
Three judges dissented to the Court’s finding that Alekseyev’s application should be dismissed for abuse of application. See ECtHR, Case of Zhdanov and Others v. Russia, Judgment of 16 July 2019 (joint partly dissenting opinion of Judges Keller, Serghides, and Elósegui), para. 1.
While the dissenting judges agreed that Alekseyev’s language was “personally offensive” and false, they disagree that the statements pose an actual threat to the functioning of the ECtHR or jeopardize its integrity. See id. at paras. 2. Additionally, the judges note that the Court has never looked at language or statements outside of the proceedings at issue to make an admissibility determination. See id. at para. 3. In their view, Article 35 applies to the application itself and not to conduct outside the scope of the application. See id. at para. 4. The judges distinguished this case from all others that had been dismissed on this ground, clarifying that in all of the other cases, the statements or conduct at issue consisted of submissions to the Court that were related to ongoing proceedings. See id. at paras. 6-8.
The judges also acknowledge the risk of potentially chilling public discourse and debate about the ECtHR, noting that it is an institution that is and should be accountable to the public it serves. See id. at para. 9. Finally, the judges consider the Court’s inadmissibility holding to be an unjustifiable restriction on the applicant’s right to access the ECtHR, which “exists to protect and realise this right for all applicants, regardless of their manners or propriety.” See id. at paras. 16, 19.
“Abusive Language” in Other Systems
While United Nations human rights treaties and formal rules of procedure do not explicitly include a prohibition on abusive language, instructions published by the UN human rights office regarding civil society submissions state that complaints containing “abusive language” will not be considered. This includes complaints submitted to the human rights treaty bodies, to the special procedures, and to the Human Rights Council. See OHCHR, A Handbook for Civil Society, Chapter VIII Submitting a Complaint on Alleged Human Rights Violations, 162, 165, 168; OHCHR, Communications; UN Human Rights Council, Frequently Asked Questions.
At the regional level, both the African Commission on Human and Peoples’ Rights (ACHPR) and the African Court on Human and Peoples’ Rights (AfCHPR) have provisions prohibiting abusive language in complaints. See AfCHPR, Rules of Court (2010), rule 40(3); African Charter, Article 56(3). In the Inter-American system, although none of the legal instruments explicitly address “abusive language,” the Rules of Procedure of the Inter-American Commission on Human Rights (IACHR) allow the IACHR to dismiss petitions it deems to be “out of order.” See IACHR, Rules of Procedure (2013), art. 34(b); American Convention, art. 47(c).
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