Lutsk, drug addicts, pedophiles, LGBT people, Romani, and Nazis. What do they have in common?

(issue) Why are we here?

As you already know, the draft Law of Ukraine, “On the Institute of Registered Partnerships,” has stirred up Ukrainian society and divided it into two opposing camps.

In particular, unable to bear the “destruction” of Ukrainian traditional values, a number of local councils appealed to the Verkhovna Rada of Ukraine to prevent the adoption of the draft law.

Lutsk and Kovel city councils did not stand aside. They were the most careless in their statements and stated that:

“[…] she (MP from the Voice faction Inna Sovsun) slyly identifies the proposal to grant state recognition to homosexual unions with concern for the army. They say that even if there are a tiny number of homosexuals in the Armed Forces, the state must fulfill the demands of LGBT people… This way, you can accept the demands of pedophiles and drug addicts.”

(We’ll give you a couple of seconds to cringe)

You have already realized that local authorities, in their official appeal to the Verkhovna Rada of Ukraine, compared members of the LGBTQ+ community to pedophiles and drug addicts.

We and our client, Petro Zherukha, are outraged by such statements and believe that they degrade the dignity and honor of our client as a member of the LGBTQ+ community.

However, the basis for the protection of our client’s rights was the practice of the Supreme Court, the foundation of the Ukrainian legal system.

(Supreme Court case law) What is wrong with the Supreme Court case law?

It’s simple. One of the mandatory circumstances for satisfying a claim for the protection of the dignity and honor of an individual is the dissemination of information relating to a particular individual (resolutions of the Supreme Court of 30.03.2023 in case No. 752/16863/16, of 24.05.2023 in case No. 621/632/22). In other words, protection of an individual from derogatory statements is possible only if these statements concerned that individual personally.

In accordance with the Supreme Court’s position, filing a defamation lawsuit in our case is hopeless since the statement concerns the community to which our client belongs but not the client personally.

Having decided that such a position did not seem to be in line with the “cherished” rule of law, we conducted a study of the ECtHR case law in the context of violation of privacy rights.

(ECtHR case law) Has the ECtHR fixed everything again?

As it turned out, since 2004, the ECtHR has already made a number of decisions on this topic and developed a clear legal position. In particular:

1. In the case of L.Z. v. SLOVAKIA, an applicant of Jewish origin applied to the ECtHR because he believed that renaming a street in the village of Varin in Slovakia in honor of Josef Tiso, the president of the First Slovak Republic, a satellite state of Nazi Germany, was an interference by public authorities with the private life of every Slovak citizen, as such a decision damaged Slovakia’s international reputation.

However, the applicant lived in the neighboring country of the Czech Republic, had no ties to the village of Varin and did not provide any evidence of a negative impact of the street renaming on his private life.

The ECtHR dismissed this complaint, as it qualified it as an actio popularis, i.e., a lawsuit filed in the public interest without a direct violation of the plaintiff’s rights and interests.

2. A more interesting case for us is the case of AKSU v. TURKEY, where the applicant of Roma origin applied to the ECtHR with a complaint about scientific books published with public funds: “The Gypsies of Turkey” (Türkiye Çingeneleri), “Turkish Dictionary for Students” (Öğrenciler için Türkçe Sözlük) and “Turkish Dictionary” (Türkçe Sözlük). In the applicant’s view, these books violated his right to privacy as they contained discriminatory and derogatory statements about the ethnic group to which he belonged.

For example, in the applicant’s opinion, in “The Gypsies of Turkey” the author described Roma as thieves, fraudsters, robbers, usurers, beggars, drug dealers, prostitutes, and pimps. And dictionaries contained discriminatory interpretations of expressions about Romani: Gypsy (Turkish: çingene) = stingy, Gypsy tent (Turkish: çingene borcu) = dirty and poor place, Gypsy wedding (Turkish: çingene düğünü) = crowded and noisy gathering.

Turkey stated that the books did not personally concern the applicant, and the complaint was actio popularis, and therefore inadmissible.

However, Turkey did not take into account that the ECtHR interprets the concept of “victim” autonomously from national concepts in the context of Article 34 of the ECtHR, and therefore, the applicant may have the status of a victim, although these statements were not directed against him, since, in the opinion of the ECtHR, he could have felt offended by the statements about the ethnic group to which he belongs.

Based on the results of the case, the ECtHR decided that certain excerpts from the books were discriminatory and offensive but that the books were generally scientific studies and their authors did not intend to discriminate against the Romani community.

However, in this case, we are interested not in the final decision of the ECtHR but in the concept of “negative stereotyping of a group,” which, according to the ECtHR, can affect the private life of individual members of a group when it reaches a certain level that can affect the sense of identity of the group and the sense of self-esteem and confidence of individual members of the group.

3. The first case in which the ECtHR applied the principle of “reaching a certain level of stereotyping of a group” in favor of the applicant is LEWIT v. AUSTRIA.

In this case, the applicant, a Holocaust survivor who was held in the Mauthausen concentration camp from 1940 to 1945, filed a lawsuit in the Austrian national courts against the author of the article “Mauthausen Prisoners as Mass Murderers.” In this article, the author argued that the prisoners of the Mauthausen concentration camp committed mass murder and looting after their liberation in 1945 by the Americans and were generally a “plague on the population.”

As expected, the Austrian courts dismissed the claim, as the author’s statements again did not relate to the plaintiff personally.

The ECHR singled out Mauthausen prisoners as a social group and decided that such statements affected the applicant’s private life.

4. Already in 2021, the ECtHR significantly detailed its position in the case Budinova and Chaprazov v. Bulgaria.

The ECtHR considered the applications of two Bulgarian citizens of Romani origin. They appealed to the national courts with a demand that Bulgarian journalist and politician Volen Siderov publicly apologize for a number of public statements in which he rudely, negatively, and stereotypically described Romani in Bulgaria and refrain from such actions in the future.

The ECtHR concluded that the main question to be answered by the ECtHR in this case is whether negative public statements about a particular social group can be considered as having a negative impact on the private life of individual members of that group.

To answer this question, the following criteria need to be clarified

• the characteristics of the group (e.g., its size, its degree of homogeneity, its particular vulnerability or history of stigmatization, and its position in relation to society as a whole)
• the precise content of the negative statements about the group (in particular, the extent to which they may convey a negative stereotype of the group as a whole and the specific content of that stereotype); and
• the form and context in which the statements were made, their reach (which may depend on where and how they were made), the position and status of the author, and the extent to which they can be considered to have affected a fundamental aspect of the group’s identity and dignity.

None of these criteria takes precedence, but their interaction makes it possible to conclude whether the statement meets the “certain level of stereotyping of a group” under AKSU v. TURKEY or the “certain level of seriousness” under DENISOV v. UKRAINE.

The general context of each case – in particular, the social and political climate prevailing at the time the statements were made – may also be an important factor.

The ECtHR found that Volen Siderov’s statements could have a sufficient impact on the sense of identity of Roma in Bulgaria and on the dignity and confidence of individual Romani so that the statements reached a “certain level” or “a “threshold of severity”.

5. The most recent case of the ECtHR on this issue is NEPOMNYASHCHIY AND OTHERS v. RUSSIA, in which the ECtHR found that the national courts of Russia did not investigate the facts of violation of the right to privacy of members of the LGBTQ+ community in connection with derogatory and discriminatory statements about the community, as they decided that the challenged statements did not concern the applicants personally. As a result, the Russian courts failed to fulfill their obligation to adequately respond to discriminatory statements and ensure respect for the applicants’ private lives.

(summary) And what are the conclusions?

The ECHR does grant the status of “victim” to individual members of social groups who have been subjected to derogatory statements in cases of violation of the right to privacy.

To substantiate a violation, it is necessary to

1. prove the existence of a certain social group;
2. provide evidence of membership in this social group;
3. to justify the achievement of “a certain level of stereotyping of the group” or “a certain level of seriousness” through the prism of the criteria set out in the case of BUDINOVA AND CHAPRAZOV v. BULGARIA.

At first glance, everything seems very simple, but how realistic is it to win a lawsuit against local councils with a position that is entirely based on ECtHR case law and contradicts the Supreme Court case law?

We cannot say yet whether such a lawsuit will be successful, but we believe that we can try to implement ECtHR standards in defamation lawsuits. What do you think?