Kilin v. Russia, No. 10271/12, ECtHR (Third Section), 11 May 2021

Conviction for sharing content online within a small social-media group with intent to incite violence against non-Russian ethnicities. Proportionate interference to protect the rights of others.

Art. 10 ECHR

1. The Court has consistently held that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. Subject to paragraph 2 of article 10, freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As enshrined in article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly.

2. A particular feature of the use of ‘hate speech’ is that it may be intended to incite – or can reasonably be expected to have the effect of inciting – others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it. The element of incitement entails there being either a clear intention to bring about the commission of acts of violence, intimidation, hostility or discrimination or an imminent risk of such acts occurring as a consequence of the particular ‘hate speech’ used.

3. The decisive point when assessing whether the statements are removed from the protection of article 10 by article 17, is whether those statements were directed against the ECHR’s underlying values or whether by making the statement, the author attempted to rely on the ECHR to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it.
(The applicant was convicted for public calls to violence and ethnic discord against non-Russian ethnicities on account of video and audio files that had been made accessible via an online social-network account. He complained that his criminal conviction had constituted a breach of article 10. The Court found no violation of article 10 because the interference with the right to freedom of expression was prescribed by the law, pursued the legitimate aim of protecting the rights of the others and was proportionate to the aim).

The applicant complained also that the appeal hearing had been held in camera. The Court found a violation of article 6, considering that the defendant’s right to a public hearing did not necessarily correlate with the existence of any actual damage to the defendant’s exercise of his other procedural rights.