JOINT PARTLY DISSENTING OPINION OF JUDGES KELLER, SERGHIDES AND ELóSegui

1. This judgment belongs to a series of landmark cases concerning LGBTQ rights in Russia. It goes without saying that we absolutely agree on the merits. Our dissent relates exclusively to point 2 of the operative part (as a consequence of which we voted against points 8 and 9 of the operative part). We disagree with the Court’s finding that Mr Alekseyev’s application in his own capacity should be dismissed for abuse of the right of application under Article 35 § 3 (a) of the Convention. In our view, the applicant should therefore also have been awarded just satisfaction on the basis of Article 41 of the Convention.

(a) Punishment of conduct unconnected to this application

2. Mr Alekseyev’s posts about individual judges and the Court plainly went beyond the limits of ordinary criticism. We have no objection to the Court’s characterisation of his language as “virulently and personally offensive” (see paragraph 83 of the judgment). He also made false and misleading statements about judges, which is a cause for great concern. While we do not believe that his statements conveyed an actual, tangible threat, we also accept that the judges targeted may have found his comments “threatening” (ibid.). Nonetheless, we do not believe that Mr Alekseyev’s conduct jeopardises the integrity of the Court in this case.

3. As the majority concede, the comments were made in reaction to the Court’s judgment in a separate case in which Mr Alekseyev was the applicant (see Alekseyev and Others v. Russia , nos. 14988/09 and 50 others, 27 November 2018), and in which he was dissatisfied with the outcome and with the refusal of the Grand Chamber to examine the case. The Court has never declared an application inadmissible on the basis of aggressive language with no connection to the proceedings at issue.

4. The use of offensive language is a ground for rejecting the application in “certain exceptional cases” (see Emars v. Latvia , no. 22412/08, § 46, ECHR 2014). So far, the Court has found such extraordinary circumstances only where they pertained to conduct or submissions within the framework of the Court proceedings. Indeed, this is the only reasonable reading of the language of Article 35 § 3:

“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application” (emphasis added).

A faithful prima facie interpretation of this provision leads us to conclude that the application itself must be an abuse of the right, not any conduct or behaviour unconnected to the application.

5. Thus, for instance, in Stamoulakatos v. the United Kingdom (no. 27567/95, Commission decision of 9 April 1997), and L.R. v. Austria (no. 2424/65, Commission decision of 24 May 1966), the series of unjustified allegations by the applicants, which were insulting and abusive to the respondent Government and the Court, led to the dismissal of the case. However, the offensive language in these cases was contained exclusively in the written submissions to the Court. By contrast, there is no allegation that Mr Alekseyev used such language in any of his submissions in the case at hand.

6. Even where the offensive language did not form a part of the Court proceedings , the statements had to be of such a direct nature that they could be regarded as “submissions” to the Court (see Duringer and Others v. France (dec.), nos. 61164/00 and 18589/02, ECHR 2003-II). In Duringer , the applicant had sent numerous communications by letter and e-mail containing serious accusations which cast doubt on the integrity of certain judges. In similar fashion to Mr Alekseyev, the applicant was systematically trying to cast aspersions on judges of the Court, members of its Registry and politicians of the respondent State, and accused in particular certain judges of extremely serious crimes. However, the critical difference between Mr Alekseyev and Mr Duringer is that the latter sent the communications directly to the Court. These were in effect like submissions, in that they challenged the Court’s authority in the case before it.

7. Our case is also distinct from Georgian Labour Party v. Georgia ((dec.), no. 9103/04, 22 May 2007), on which the majority partly rely. In Georgian Labour Party , the applicant’s offensive statements about the Government in media interviews could have been an abuse of the right of application had they reached a more serious level; however, in that case the applicant was complaining about proceedings that were ongoing at the time. This situation is clearly distinguishable from Mr Alekseyev’s complaints, which stemmed from a final judgment in the past.

8. To this concern, the majority respond that “these statements published after the warning that explicitly mentioned the present applications can therefore be considered to be connected with them” (see paragraph 84 of the judgment). This reasoning goes too far. A warning from the Court that “mentions” the applications before it demonstrates nothing about the intention of the applicant; the Court cannot put words in an applicant’s mouth by assuming assent by silence. Subsequent posts by Mr Alekseyev after these warnings revealed no indication that they were aimed at the current application.

(b) The “chilling effect” on the freedom of speech

9. The judgments and decisions of this Court are always weighty, and often controversial. The Court is to a certain degree accountable to the public; discussion – negative or positive – about its work is inevitable and necessary in a democratic society. We believe therefore that the Court should be extremely careful not to set a precedent that could have a chilling effect on the active engagement of the public with the Court.

10. Indeed, it is difficult to understand what purpose rejecting Mr Alekseyev’s application serves. On the contrary, we are disturbed by the risk of appearing to retaliate against the applicant’s offensive remarks about the formation that heard the case. After all, “not only must Justice be done; it must also be seen to be done” [1] . To put it differently, the public should not be given the impression that the Court is engaging in revenge instead of delivering justice.

11. In particular, we are concerned that the majority characterised Mr Alekseyev’s use of social networking accounts as an effort “to ensure the widest possible circulation of his accusations and insults”, which in their view is “evidence of his determination to harm and tarnish the image and reputation of the institution of the European Court of Human Rights and its members” (see paragraph 84 of the judgment).

12. In today’s digital age, with its vastly different and complex challenges to freedom of expression, we are hesitant to declare – so simply and with no limitations – that Mr Alekseyev’s Instagram account belongs to the public domain. How far does this public domain reach? If an applicant’s Instagram account has twenty followers, is that still public space? Will the Court take into account what the applicant wrote on his personal blog, on his NGO websites, or even in his emails? Even if the applicant deletes the posts at issue, they will remain accessible for years on the Internet; how far back in time is the Court going to scrutinise the posts on an applicant’s social networking account? Now that the Court does not require a nexus between the offensive statements and the actual case at hand, would future applications from Mr Alekseyev all be inadmissible because of these posts?

13. Furthermore, the majority do not tell us exactly which statements have cost Mr Alekseyev the right to seek recourse before the Court. Some of his statements constituted mere expressions of frustration, while others amounted to serious defamation. An indiscriminate, general condemnation of all critical statements about this Court sends a worrisome message to the domestic courts and future applicants.

14. The decision today comes dangerously, unacceptably close to scrutinising an applicant’s online presence and conduct outside the Court. Moreover, we fear that this decision could be an invitation to Governments to engage in surveillance of future applicants in the hopes of finding statements that could be offensive to the formation of the Court hearing the case.

15. In sum, the decision to declare Mr Alekseyev’s application an abuse of the right of application touches on the much weightier and more sensitive issue of freedom of speech in the digital era. We are not convinced that the Court has carefully considered its impact and ramifications.

(c) The applicant’s right to access the Court

16. The right of individual application under Article 34 is fundamental to the Convention system. The Court exists to protect and realise this right for all applicants, regardless of their manners or propriety. Taking this right away from an applicant altogether should be done only in the most exceptional circumstances.

17. In this case, fortunately, Mr Alekseyev’s claims were accompanied by the application on behalf of his NGO, which allowed some adjudication of the violations at stake. However, other applicants may not be so lucky. Imagine a case at the national level in which an applicant posts on her social networking page that all the judges of the appellate court are idiots, and as a result the appellate court declares an application inadmissible for abuse of rights, notwithstanding the clear merits of the applicant’s case. Would our Court not find a violation of Article 6 § 1 of the Convention?

18. Mr Alekseyev is a well-known activist for LGBTQ rights in Russia. He spares no effort and takes personal risks in order to advance the cause of equal rights. Many applications submitted by him to this Court have triggered meaningful advances in LGBTQ rights in that country. In this context, we consider it disproportionate to sanction his statements so severely on this first occasion. One alternative which the Court should have considered would be to send the applicant an official letter with a clear indication that if he does not retract his false and derogatory comments about individual judges, his applications will no longer be dealt with in the future.

19. In short, depriving an individual of the ability to seek remedy from this Court must always be considered a problematic reaction per se and should be used only as an ultima ratio after a very careful balancing of the interests at stake. We are strongly against the Court depriving applicants of what is often the only recourse left to them in order to restore their fundamental rights.

20. For the reasons set out above, we respectfully disagree with the Court’s decision to declare Mr Alekseyev’s application inadmissible as an abuse of the right of application under Article 35 § 3 (a) of the Convention.

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

Place of residence

Represented by

1

12200/08

03/03/2008

Mr Aleksandr ZHDANOV

30/09/1980

The Tyumen region

REGIONAL PUBLIC ASSOCIATION “RAINBOW HOUSE” ( Тюменская региональная общественная организация “ Радужный Дом ”)

Tyumen

Mr P. CHIKOV

2

35949/11

20/05/2011

Mr Nikolay Aleksandrovich ALEKSEYEV

23/12/1977

St Petersburg

AUTONOMOUS NON-PROFIT ORGANISATION “MOVEMENT FOR MARRIAGE EQUALITY” (Автономная некоммерческая организация “Движение за брачное равноправие”)

Moscow

Initially Mr D. BARTENEV and then Mr E. DACI and Mr B. CRON

3

58282/12

20/08/2012

Mr Nikolay Aleksandrovich ALEKSEYEV

23/12/1977

Moscow

Mr Kirill Sergeyevich NEPOMNYASHCHIY

05/12/1981

The Krasnoyarsk region

Mr Aleksandr Sergeyevich NAUMCHIK

16/03/1982

The Moscow region

REGIONAL PUBLIC SPORTS MOVEMENT “SOCHI PRIDE HOUSE” ( Краснодарское краевое региональное спортивное общественное движение “Прайд-хаус в Сочи” )

Krasnodar

Initially Mr D. BARTENEV and then Mr E. DACI and Mr B. CRON

[1] . R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259.