Background

In Sokolovskiy v Russia [2024] ECHR 473 the applicant, Gennadyevich Sokolovskiy, was a content-creator and blogger with a YouTube channel with about 470,000 subscribers. He published a series of videos which were variously critical of believers in general, sectarianism, Muslims, and Patriarch Kirill and Orthodoxy [5], one of which showed him playing Pokémon Go in a church [7]. In 2017 he was convicted under the Russian Criminal Code for insulting religious beliefs and incitement to hatred or enmity, and sentenced to three years and six months’ imprisonment, suspended with a three-year probation period [50]. An appeal had been unsuccessful; however, in May 2019 the Kuibyshevki District Court of Saint Petersburg had terminated the execution of his sentence following a partial decriminalisation of the acts of which he had been convicted, as provided for in Article 282 of the Criminal Code [61].

The arguments

Before the ECtHR, he argued that his conviction had violated Article 10 ECHR (freedom of expression). His videos addressed current issues of undeniable public interest, such as online intolerance, church interference in the affairs of the secular state, feminism, inter-ethnic relations and oppositions, and criticism of religion and religious organisations [79]. Further, the case-law cited by the Government was not relevant because he had neither encouraged nor legitimised violence or discrimination, nor had he incited hatred towards different social groups [80]. Lastly, the interference had been disproportionate because the national courts had failed to strike a proper balance between his right to express his atheist beliefs and the need to protect believers [83].

The Government contended that both the Convention and the Russian Constitution provided for legislative limitations on rights in the interests of national security, public order and the protection of the rights and freedoms of others and claimed that the statements that Mr Sokolovskiy had made in his videos in question were aimed at stirring up religious hatred and therefore posed a social danger [87]. The judgment had been based on solid evidence; he could not have been unaware that his videos had incited hatred and animosity and that they had undermined the human dignity of various social groups, including followers of various religions, but he had nevertheless continued in disregard of their feelings. For example, the video entitled “Suicide of Muslims at the baccalaureate” had legitimised violence against Muslims and their deportation [88].

The judgment

The Court noted that, notwithstanding its termination, his suspended sentence could not be regarded as “moderate” when freedom of expression was at stake, given the significant deterrent effect that such a sanction could have [103]. It was clear from the domestic courts’ decisions that they had relied on the statements of the two prosecution witnesses, one of whom had been absent from the hearing and the other whose identity had been kept secret, and on the conclusions of a multidisciplinary expert report commissioned by the investigator – which they had merely endorsed. [105].

Nor had there been any attempt made to establish whether Mr Sokolovskiy’s statements, even those formulated in harsh and vulgar terms, had been part of a debate of general interest on important societal phenomena or could be justified by a style inherent in his activity as a blogger aimed at a young audience [106]. All those elements had been put before the court of first instance – his explanations had been corroborated by several witnesses who said that they would have perceived his statements in the disputed videos as a scathing criticism of the current state of the Church, and that the provocative metaphors were a strong call to promote debate in society on those issues [107]. While regretting certain excesses and generalisations, Mr Sokolovskiy had explained that the choice of the provocative form used for his videos was dictated by the nature of his activity and was intended to attract his target audience [108].

In conclusion, the Court found no evidence to show that the domestic courts had considered whether the impugned statements were in fact likely to constitute a breach of public order, The Court of Appeal had expressly stated in its judgment that Mr Sokolovskiy’s videos did not contain any calls for illegal or violent acts, and the containment of a mere speculative danger as a preventive measure to protect democracy, could not be considered as responding to a “pressing social need” [111]. Similarly, the domestic courts had not examined whether Mr Sokolovskiy’s remarks were “gratuitously offensive” to religious beliefs, whether they were insulting or whether they incited disrespect or hatred towards the Orthodox Church and they had not, therefore, carried out the necessary balancing exercise [112]. They had therefore failed to apply standards consistent with the principles set out in Article 10 and not provided “relevant and sufficient” reasons to justify the interference [113]. There had therefore been a violation of Article 10 [114].

(For a more detailed analysis, see Dirk Voorhoof, Strasbourg Observers: Sokolovskiy v. Russia: Criminal conviction for religious ‘hate speech’ violated the right to freedom of expression of a blogger)