European Court of Human Rights Rules Anti-LGBTQ+ Hate Speech Legislation Does Not Violate the Right to Freedom of Expression

On 4 December 2015, the applicant, who was a senior official in the Greek Orthodox Church published an article on his personal blog under the title “THE SCUM OF SOCIETY HAVE REARED THEIR HEADS! Let’s be honest SPIT ON THEM”. At that time, the Hellenic Parliament was about to debate proposed legislation introducing civil unions for same-sex couples.


The applicant was then convicted of incitement to hatred or violence and sentenced to five months’ imprisonment. The applicant proceeded to appeal this to the European Court of Human Rights (ECtHR) arguing that his conviction violated his article 10 (Freedom of Expression) and article 17 (general protection of all other rights in the convention) rights under the European Convention on Human Rights (ECHR).

The ECtHR  noted that in particular, the appellate court, after considering the article as a whole, concluded that certain expressions used by the applicant in relation to homosexual people, such as that homosexuality was a “social felony”, a “sin” and “a deviation from the laws of nature” and that homosexual people were “the scum of society”, “criminals”, “people of the dark”, “mentally ill people”, “defective” and “humiliated”, amounted to hate speech against a group of individuals identified on the basis of their sexual orientation. It further focused on the incitements contained in the article – “Spit on them! Condemn them! Blacken them out! ... Therefore, do not hesitate! When you meet them, spit on them! Do not let them rear their heads!” – and the quotation from the psalm at the end and concluded that the applicant’s article was capable of stirring up violence against homosexual people and causing them anguish and fear.


The Court agrees with the domestic courts’ conclusions. It reiterated that regard must be had to the words used and the context in which they were published, with a view to determining whether the texts taken as a whole can be regarded as incitement to violence. In the present case, it considered that the expressions used by the applicant amounted to hate speech against a group of people on the basis of their sexual orientation. As the domestic court rightly pointed out, the applicant used harsh expressions which went so far as to deny homosexual people their human nature stating “They are not humans! They are perversions of nature!” Other phrases used, such as “They are the scum of society, marginal people, defective, humiliated, people of the dark, who now, with the rising of the left, have reared their heads!. They are the damned of Society!” and “They are suffering mentally and spiritually! They are people with a mental disorder! Unfortunately, these people are worse and more dangerous than some of the people living in nuthouses”, further reinforce the above conclusion, as it is clear that these phrases go beyond the expression of opinion, even in offending, hostile, or aggressive terms (contrast Savva Terentyev v. Russia, no. 10692/09, § 72, 28 August 2018).


The Court further noted that pursuant to its case-law, another factor to be taken into account is whether the statements, fairly construed and seen in their immediate or wider context, could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance The applicant’s article included multiple incitements to violence.


The Courts’ findings were reinforced by three factors. First, as the domestic courts highlighted, the applicant, who was a senior official of the Greek Orthodox Church, had the power to influence not only his congregation but also many other people who adhered to that religion, that is to say, the majority of the Greek population.


Secondly, the applicant disseminated his remarks on the Internet, which made his message easily accessible to thousands of people.


Thirdly, the applicant’s comments targeted homosexuals who may be seen as requiring enhanced protection. In particular, the Court notes that it has already found that gender and sexual minorities required special protection from hateful and discriminatory speech because of the marginalisation and victimisation to which they have historically been, and continue to be, subjected (see Lilliendahl v. Iceland (dec.), no. 29297/18, § 45, 12 May 2020). The Court also notes the low levels of acceptance of homosexuality and the situation of LGBTI people in the national context as identified in international reports.


The Court reiterates that Article 17 of the Convention is only applicable on an exceptional basis and in extreme cases. In cases concerning Article 10 of the Convention, it should only be resorted to if it is immediately clear that the disputed statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention. Though this list is not exhaustive, the Court has applied Article 17 of the Convention by excluding certain statements from the protection afforded by Article 10 mainly in cases relating to statements denying the Holocaust (see Garaudy,), in cases which concerned the use of freedom of expression for Islamophobic purposes (see Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004‑XI) and antisemitic purposes (see Pavel Ivanov and M’Bala M’Bala,) and to cases inciting violence against all non-Muslims (see Belkacem v. Belgium ((dec.), no. 34367/14, 20 July 2017).


In this connection, the Court stresses that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour” (see Vejdeland and Others v. Sweden, no. 1813/07, § 55, 9 February 2012). In the circumstances of the present case, and having regard to the nature and wording of the disputed statements, the context in which they were published, their potential to lead to harmful consequences and the reasons adduced by the Greek courts, the Court considers that it was immediately clear that the statements sought to deflect Article 10 of the Convention from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention.


Click here to see the full decision in Lenis v Greece{%22fulltext%22:[%22Lenis%20v.%20Greece%22],%22itemid%22:[%22001-226442%22]}



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