CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 janvier 2025

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ARMENIA (Application no. 59180/15)   JUDGMENT   Art 8 • Positive obligations • Private life • Art 14 (+ Art 8) • Discrimination • Online newspaper article targeting LGBT rights activists following their comments challenging Armenian Eurovision jury members’ statement criticising the victory of a gay cross-dressing man in 2014 • Impugned article motivated by hostility against LGBT persons and attacked applicants because of their LGBT rights activism, expressly inciting the public to commit harmful discriminatory acts against them • Art   8 applicable • Arguable claim before domestic courts that applicants’ perceived sexual orientation and close association with the LGBT community played a role in the online attacks • Art   14 (+ Art   8) applicable • Domestic courts’ failure to recognise article’s hostile tone, intentions and impact on applicants’ Art   8 rights • Failure to address discriminatory nature of impugned statements and comply with positive obligation to adequately respond • Failure to carry out requisite balancing exercise in line with the Court’s case-law • Civil remedy capable in theory of providing effective protection but manner in which interpreted and applied failed to protect applicants against hate speech and discrimination   Prepared by the Registry. Does not bind the Court.   STRASBOURG 7 January 2025 FINAL   07/04/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Minasyan and Others v. Armenia, The European Court of Human Rights (Former Fourth Section), sitting as a Chamber composed of:   Faris Vehabović, Acting President ,   Gabriele Kucsko-Stadlmayer,   Branko Lubarda,   Armen Harutyunyan,   Tim Eicke,   Anja Seibert-Fohr,   Anne Louise Bormann, judges , and Simeon Petrovski Deputy Section Registrar, Having regard to: the application (no. 59180/15) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fourteen Armenian nationals, Ms Lili Minasyan, Ms Anna Nikoghosyan, Ms Anna Shahnazaryan, Ms Arevik Martirosyan, Mr Davit Tadevosyan, Mr Vahan Sedrakyan, Mr Vardan Hambardzumyan, Ms Gayane Arustamyan, Mr   Mamikon Hovsepyan, Ms Nvard Margaryan, Ms Elvira Meliksetyan, Ms   Pertchuhi Kazhoyan, Ms Lusine Saghumyan and Mr Vahancheraz Ishkhanyan (“the applicants”), on 24 November 2015; the decision to give notice to the Armenian Government (“the Government”) of the applicants’ complaints under Articles 8, 14 and 17 of the Convention; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the Human Rights Centre of Ghent University and three non-governmental organisations, ARTICLE 19, ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) and TGEU (Transgender Europe), who were granted leave to intervene by the President of the Section; Having deliberated in private on 23 January and 10 December 2024, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns media articles targeting the applicants, activists for lesbian, gay, bisexual and transgender (LGBT) rights. It raises issues under Articles 8 and 14 of the Convention. THE FACTS 2.     The applicants’ details are set out in the appendix. They were represented by Ms N. Piliposyan, a practising lawyer, and Ms. L. Ghazaryan, a non-practising lawyer, both based in Yerevan, and Ms J. Gavron, Mr   P.   Leach, Ms K. Levine and Ms J. Sawyer of the European Human Rights Advocacy Centre (EHRAC) based in London. 3.     The Government were represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia on International Legal Matters. 4.     The facts of the case may be summarised as follows. 5.     The applicants were, at the time of lodging their application, activists, members of NGOs, journalists and researchers active in the sphere of human rights, including LGBT and women’s rights. 6 .     On 16 May 2014 Radio Liberty held an online press conference on Facebook during which the Armenian jury members of the 2014 Eurovision Song Contest (two well-known presenters, sisters Ms I.A. and Ms A.A.) said that they had awarded the lowest points to Conchita Wurst – a gay cross ‑ dressing man who had won that year’s competition – because of their “internal revulsion”, adding that “just like mentally ill people cause[d] aversion, so [did] such phenomena”. Many of the participants in the press conference, including the applicants, reacted to this statement and challenged the jury members by commenting on the Facebook press conference page. 7 .     The applicants’ comments included the following: (a)     Ms Martirosyan: “Have you ever wondered where you get your hateful and discriminatory attitude towards others from, namely your fear, hatred and disgust towards others who were born equal and free just like you? Are you familiar with Article 14.1 of the Constitution? Do you realise that your public statements are anti-constitutional and anti-human? Please specify your values and [explain] what you understand by the word ‘value’.” (b)     Ms Shahnazaryan referred to the Mental Healthcare Act and the Constitution, stating that, under those laws, mental healthcare in society included showing the necessary attitude towards mentally ill people, such as tolerance and kindness, while ruling out any discrimination. She also included the link to a song by Charles Aznavour about a cross-dressing man, asking the jury members if they appreciated and had ever clapped to it. She further asked them whether they were ready to “commit hara-kiri ” (ritual suicide) if they found out that they had clapped to a song about a male cross-dresser’s love for another man, given that it made their very limited “Armenianness” feel “aversion to the point of hara-kiri ”. (c)     Mr Sedrakyan: “For many, the first names [I. and A.] are indivisible, as if they were one person. Is it true that you two are incestuous lesbians?” (d)     Ms Margaryan asked the jury members if they considered anyone different from themselves to be mentally ill and whether they had also received a pre-election handout to promote the ruling Republican party. (e)     Ms Arustamyan referred to a number of gay artists from past and present, including Leonardo Da Vinci, Pyotr Tchaikovsky, Oscar Wilde and Freddie Mercury, and asked the jury members if they also had an aversion towards them. (f)     Mr Ishkhanyan also referred to the above-mentioned Charles   Aznavour song and asked the jury members how many points they would have awarded it given that they felt an aversion towards homosexuals. (g)     Mr Hambardzumyan asked the jury members if they were in good mental health and whether they had a document proving that they were not “mentally ill”. 8 .     On 17 May 2014 an article was published on the website of the Iravunk (Law) newspaper (“the newspaper”), written by its editor-in-chief, H.G., entitled “They Serve the Interests of the International Homosexual ( համասեռամոլ ) Lobby: the Blacklist of Enemies of the Nation and the State”, which included the following content: “Homosexual rights lobbyists are trying to aggressively establish their rules of the game in our country. In connection with the disgusting phenomenon called Eurovision, they ( սրանք ) started harassing and destroying people who have voiced their own natural disgust for the human waste called Conchita. Their intention is clear: to intimidate all those who dare to oppose the efforts to make perversion the norm in Armenia. The aims of the gay lobby are quite obvious: to establish such rules of the game that would drastically limit the population’s capacity to reproduce, while reducing the combat readiness of the generation eligible for military service to zero. First, they broke [the singer representing Armenia at the Eurovision Song Contest] and forced him to apologise, then they broke [I.A. and AA.] and forced them to apologise. It was in everyone’s full view how, in the case of these modest and decent sisters, they organised a nasty auto-da-fé against [I.A. and A.A.] on Radio Liberty’s Facebook press conference page. There is only one way to stop the onslaught of these lobbyists: ZERO TOLERANCE. Regardless of whether they were paid, forced or brainwashed to become gay-campaign-supporting zombies. All that is irrelevant; every lobbyist is an internal enemy of the Nation and the State, that’s it. To that end, to the extent that I could devote time to it, I managed to compile a blacklist of those who harassed [I.A. and A.A.] on the Facebook press conference page. Now, for whom would such blacklists be useful? 1.     ORDINARY PEOPLE : for them to stop any contact with these lobbyists both on the Internet and in real life; not to greet them; not to help them with any issues and not to do any business with them. 2.     PUBLIC OFFICIALS : for them not to hire these lobbyists for public service jobs, and if they already work there, to fire them under any convenient pretext. 3.     EMPLOYERS : for them not to hire these lobbyists. 4.     OWNERS OF MEDIA COMPANIES : for them not to give these lobbyists an opportunity to influence public opinion. 5.     HEADS OF EDUCATIONAL INSTITUTIONS : for these lobbyists not to have the opportunity to educate the younger generations. These are of course not the only ways to limit the activities of gay lobbyists. Below we present a list of Facebook profiles of those who were active participants in the harassment campaign of [I.A. and A.A.]. ” 9 .     The article was followed by a list of hyperlinks to a number of Facebook profiles, including those of the applicants. 10 .     On 31 May 2014 all the applicants, except Ms Minasyan and Ms   Arustamyan, requested a retraction from the chairman of the editorial board of the newspaper, H.B., who was also an MP for the ruling Republican Party, and its editor-in-chief, H.G. They submitted that the entire essence of the article and the individual statements contained in it, as well as the fact that it had been addressed to them through their Facebook pages, insulted their honour and dignity. Furthermore, it contained information which did not correspond to reality, and which defamed and tarnished their honour, dignity and business reputation. The applicants relied on Article 1087.1 of the Civil Code. 11 .     On 3 June 2014 another article by H.G. was published on the newspaper’s website, entitled “And They Still Dare to Request a Retraction?”. It reproduced the text of the applicants’ request for a retraction and added: “By throwing a quick glance at ‘those who requested the retraction’, the following immediately becomes evident. The list of those who signed the request is headed by a certain Anna Shahnazaryan , who, according to the Civilnet online channel, lives in Sweden. This character is famous for writing ‘gender’ on her own forehead and sharing that photo on Facebook for everyone to see, throwing down the gauntlet to public morality (see photo). In the same list, there is Mamikon Hovsepyan – the head of the NGO PINK Armenia, which has made the protection of homosexuals its main aim – the photos of whose participation in Latin American gay parades we already had the opportunity to publish years ago when we discovered the – to put it mildly – strange fact that the Ministry of Sport and Youth was sponsoring [PINK Armenia] ... Almost everyone can find such dishonourable episodes in the list of ‘those who requested the retraction’. Although we put it quite mildly by saying ‘dishonourable’, the Armenian way of saying it would be that they have a stinking biography.” 12 .     On 16 June 2014 the applicants instituted civil proceedings against the newspaper and its editor-in-chief under Article 1087.1 §§ 1 and 2 of the Civil Code (see paragraph 27 below), seeking compensation for damage to their honour and dignity. They argued that a number of statements in the article of 17 May 2014 – the colloquial and impolite form of “they” ( սրանք ), “gay ‑ campaign-supporting zombies” and the text starting with “All that is irrelevant” – were insults and tarnished their honour and dignity. The article also contained statements inciting hatred and discrimination. In reply to their request for a retraction, the defendant had published a similar article on 3 June 2014 containing further insults, including statements such as “character”, “stinking biography” and other similar expressions. The two articles had reached a large number of people – by 19 May 2014 the first had been viewed 3,495 times. Relying on Articles 3, 14.1 and 47 of the Constitution, they argued that by guaranteeing respect for private life and a person’s right to dignity, it prohibited any kind of encroachments on a person’s honour and dignity. Furthermore, the published material contained statements constituting hate speech and incitement to discrimination. In this connection, the applicants referred to two Recommendations of the Committee of Ministers of the Council of Europe (see paragraphs 31 and 32 below), citing passages which recommended that member States adopt measures to combat discrimination on grounds of sexual orientation or gender identity. They further stated that, according to those documents, acts motivated by hatred threatened the rule of law and democratic foundations of society, while expressions which incited discrimination against, inter alia , minorities, were considered offensive and violated the Convention. Relying on the cases of Erbakan v. Turkey (no. 59405/00, 6 July 2006) and Smith and Grady v.   the   United Kingdom (nos. 33985/96 and 33986/96, ECHR 1999-VI), the applicants stressed the need to sanction or even prevent all forms of expression which spread, incited, promoted or justified hatred based on intolerance, and the fact that discrimination based on one’s sexual orientation was as serious a problem as discrimination based on race, origin, skin colour and sex. While Article 10 of the Convention guaranteed freedom of expression, it also required that the rights of others not be violated by insults and expressions tarnishing their dignity. The applicants requested that the court order the defendant to issue a public apology on its website and pay 5,000,000 Armenian drams (AMD) in damages. 13 .     Between 11 and 30 July 2014 the newspaper published a series of articles concerning several of the applicants. These included (a) a photo of Ms Saghumyan with a funny grimace, with the caption “These Are the Phenomena That Sued Iravunk ”, (b) an article by H.G. about Ms Kazhoyan entitled “When the Daughter of a Public Official Engages in Homosexual Lobbying”, published in a section of the newspaper called “Conchita’s Witnesses” and attacking her for her activism in feminism and LGBT rights; (c) an article by H.G. about Mr Sedrakyan entitled “How the Son of a Bandit Became a ‘Conchita’s Witness’”, calling him, among other things, a “Conchita’s witness” and a “homosexual rights lobbyist” and attacking him for the comment he had made on the online press conference page, as well as other comments he had made on his own Facebook page in support of the LGBT community, (d) an article (author not indicated) about Mr Hovsepyan and the NGO PINK Armenia headed by him entitled “Camps: Young Gay Rights Lobbyists”, describing their activities as homosexual lobbying and asking readers whether they felt nausea “because of the level of freedom enjoyed by the disgusting abbreviation that is LGBT”; and (e) an article by H.G. entitled “Gay Rights Lobbyists Are Losing Their Tempers”, in which he continued to attack PINK Armenia, among others, for its activities combating hate and homophobia. In the latter article, the author at one point addressed the applicants as “boys and girls”, adding that it was questionable whether they could be called that. 14.     On 5 September 2014 H.G. created a Facebook event calling on “everyone who [was] not indifferent towards traditional values and who value[d] the institution of the family and the nation’s morality” to go to the court hearing scheduled for 20 October 2014 to support the newspaper, which had thrown down the gauntlet to gay rights lobbyists in order to defend “the right to live in an environment free from perverse influences”. It appears that on the day of the hearing, about a dozen people gathered in front of the court building, holding posters with messages such as “Stop Anti-Armenian Propaganda”, “Propaganda of Perversion Must be Banned by Law”, “Gender Equals Perversion”, “Yes to Traditional Family” and “Let’s Protect the Right to Be Armenian”. 15 .     On 25 October 2014, on the newspaper’s twenty-fifth anniversary, H.B. and H.G. were awarded medals and other honours by the President of Armenia and the President of the National Assembly for, among other things, their significant contribution to the success of the newspaper. 16 .     On 30 October 2014 the Kentron and Nork-Marash District Court of Yerevan dismissed the applicants’ claim. The court acknowledged at the outset that they were seeking a public apology and compensation for statements which had allegedly tarnished their honour, dignity and business reputation and incited hatred and discrimination. It was therefore necessary to carry out a balancing act between two competing interests – the right to honour and dignity, on the one hand, and freedom of expression and of the press, on the other – in order to determine whether the permissible limits of free speech had been overstepped and, as a result, their honour and dignity had been tarnished. Referring extensively to the Court’s case-law under Article 10 of the Convention, as well as the Court of Cassation’s case-law regarding Article 1087.1 of the Civil Code (see paragraph 30 below), the District Court recapitulated the circumstances of the case, finding that freedom of expression enjoyed wider protection in cases like the present where press articles on a matter of public interest were at stake and a distinction was to be made between value judgments and statements of fact. The article had not aimed to insult the applicants but simply contained an element of journalistic exaggeration and provocation. The impugned statements did not contain offensive words and ideas. Even if formulated with some exaggerations, the approach used had been balanced overall. The author had simply tried to give an equivalent response to those who, according to him, were trying “to aggressively establish new rules of the game in the country that could have destructive consequences”. Thus, the article was within the permissible boundaries of freedom of journalistic speech and was of paramount public interest. The author had been guided by the principle of plurality of opinions and had not pursued the aim of tarnishing the applicants’ honour and dignity, even if some of the formulations used might have shocked or disturbed them. The fact that I.A. and A.A.’s statements about Conchita Wurst had become the target of the applicants’ criticism had provided the author of the article with press material and the applicants had ended up being subject to criticism themselves. Having joined a public discussion, the applicants should have shown a certain tolerance towards the critical statements, since those statements as a whole were part of an open debate concerning the instilling of homosexual and similar ideas in society and not deviating from a Christian path, rather than personal insults. The District Court concluded that the interference with freedom of expression sought by the applicants was not necessary in a democratic society. It stated, lastly, that value judgments were not susceptible of proof and that such a requirement could in itself breach freedom of expression protected under Article 10 of the Convention. 17 .     On 28 November 2014 the applicants lodged an appeal. They argued, inter alia , that the District Court had failed to examine and assess all the evidence in the case, in particular, copies of all the subsequent articles published by the defendant which the applicants had presented to the court as evidence in support of their allegation that the defendant had had the intention to insult them and tarnish their dignity. The District Court had failed to correctly apply the Court’s case-law under Article 10 of the Convention, to explain why it believed that the article was a matter of paramount public interest or to indicate the statements which it considered to amount to “value judgments” and why. Referring to the requirements of, inter alia , Articles 14 and 17 of the Convention and Protocol No. 12, the applicants argued that the court had failed to give any assessment to – or even mention – the fact that the article explicitly incited discrimination and hatred. The applicants again cited a number of passages from the above-mentioned Committee of Ministers Recommendations (see paragraphs 31 and 32 below), as well as the Court’s findings in, inter alia , the case of Vejdeland and Others v. Sweden (no. 1813/07, § 55, 9 February 2012) concerning incitement to hatred and discrimination. 18 .     On 2 March 2015 another article was published in the newspaper, entitled “Adventures of the Armenian Gay Rights Lobbyists in Istanbul”, covering the visit of Mr Hovsepyan to Istanbul. It was stated, inter alia , that he had travelled to Istanbul to exchange experiences with Turkish homosexual organisations, and that those establishing contact with Turkish homosexuals still dared to demand restoration of their honour from an Armenian newspaper even though it would have been more logical for their activities to be examined by Armenia’s national security authorities. The author further referred to the proverb “obscenity is the second happiness”, stating that the LGBT logic was interesting: they had travelled to kiss Turkish homosexuals and, at the same time, sued an Armenian journalist who had dared to tell the truth. 19 .     On 5 March 2015 the Civil Court of Appeal dismissed the applicants’ appeal and upheld the judgment of the District Court. The court referred at the outset to the principles enshrined in the Court’s case-law under Article 10 of the Convention, such as the wider protection enjoyed by the media and the press and the fact that value judgments were not susceptible of proof. It went on to conclude that, contrary to the applicants’ claim, the District Court had addressed and dismissed their arguments regarding the offensive nature of the impugned statements. The court had been right to conclude that the criticism expressed by the defendant was considered an opinion. Thus, the defendant, being a journalist, had expressed his negative view in respect of morals unacceptable for him, which, according to the author, were also of significance to national security, whereas value judgments and truthfulness of criticism were not susceptible of proof. The applicants had failed to prove that the defendant had had the intention to tarnish their honour, dignity or business reputation. As to the subsequent articles published by the defendant, they also simply expressed the author’s negative attitude towards morals unacceptable to him and did not contain anything tarnishing the applicants’ dignity. Moreover, the applicants had failed to specify which of the statements contained in those articles had tarnished their honour, dignity or business reputation. Those articles could not therefore serve as evidence of the defendant’s intention to do so. 20 .     As regards the applicants’ arguments of a violation of Articles 14 and   17 of the Convention, Protocol No. 12 to the Convention and Article 14.1 of the Constitution, those were also unfounded. In particular, the provisions in question guaranteed the equality of everyone before the law and prohibition of discrimination, whereas the subject of the applicants’ claim before the courts concerned redress for damage caused to their honour and dignity. The applicants’ arguments concerning discrimination therefore fell outside the scope of their claim because the provisions in question, in the light of the circumstances presented by the applicants, were not connected to questions of damage to honour and dignity. Moreover, the applicants had failed to show how they had been discriminated against or to submit any evidence that they had fallen victim to discrimination on the grounds of sexual orientation or because of advocating, spreading and lobbying in favour of such ideas. In particular, they had failed to provide proof that they had been refused a job, dismissed or had in some other way been subjected to discrimination precisely on those grounds. The applicants’ allegations of a violation of those Articles were therefore unsubstantiated and had to be dismissed. 21 .     On 25 March 2015 H.B. gave a speech in Parliament, stating that George Soros, through his Open Society Foundation, was sponsoring NGOs such as PINK Armenia for them to initiate a judicial persecution against the newspaper and persecute freedom of speech and of the media in Armenia by targeting a specific media outlet. He added that the activities of the Open Society Foundation gave the impression of being aimed not only against the system of traditional values, but also against such a core democratic principle as freedom of speech and of the media. H.B. referred, in particular, to a grant provided to PINK Armenia by the Open Society Foundation, whose purpose, as stated on its website, was to assist in initiating strategic proceedings against discrimination and, more specifically, raising the question as to whether there was hate speech in the article containing “the blacklist of enemies of the nation”. 22.     On 7 April 2015 the applicants lodged an appeal on points of law, raising similar arguments as previously. 23 .     On 29 April 2015 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. A copy of that decision was served on the applicants on 29 May 2015. 24.     The applicants alleged that, following the decision of the Court of Cassation, the newspaper had continued to publish similar articles about them. RELEVANT LEGAL FRAMEWORK         relevant domestic law AND PRACTICE    Constitution (2005-2015) 25 .     Article 3 of the Constitution, as in force at the material time, provided that a person, his or her dignity and fundamental rights and freedoms had supreme value. The State ensured the protection of a person’s and a citizen’s fundamental rights and freedoms in accordance with the principles and norms of international law. The State was bound by fundamental human rights and freedoms and those of its citizens as a directly applicable law. 26 .     Article 14.1 provided that everyone was equal before the law. Discrimination on the grounds of sex, race, skin colour, national or social origin, genetic characteristics, language, religion, ideology, political or other opinion, association with a national minority, property, birth or disability status, age or personal or other social circumstances was prohibited.    Civil Code (1999) 27 .     Article 1087.1 § 1 provides that a person whose honour, dignity or business reputation has been tarnished through insult or defamation can institute court proceedings against the person who made the insulting or defamatory statement. Article 1087.1 § 2 provides that, within the meaning of the Code, an insult is a public statement made through words, images, sounds, signs or other means with the aim of tarnishing someone’s honour, dignity or business reputation. A public statement may be considered not to be an insult if it is based on true facts (except congenital defects) or pursues a paramount public interest. Article 1087.1 § 7 provides that, in the case of insult, a person may request the court to order one or more of the following measures: (i) a public apology, with the form of apology to be determined by the court; (ii) if the insult appears in information disseminated by a media company, publication of all or part of the court’s judgment through that media outlet, with the manner and volume of the publication to be determined by the court; and/or (iii) payment of compensation of up to 1,000 times the fixed minimum wage.    Code of Civil Procedure (2018) 28 .     On 9 April 2018 a new Code of Civil Procedure entered into force in Armenia, replacing the former Code of Civil Procedure of 1999. 29 .     Article 4 of the new Code provides that if there is no substantive law or other legal act regulating a disputed relationship, the court will apply the legal provisions regulating similar relationships (legal analogy).    Case-law of the Court of Cassation 30 .     In decision no. KD/2293/02/10 of 27 April 2012, the Court of Cassation, inter alia , interpreted Article 1087.1 of the Civil Code as follows. For a particular statement to be considered an “insult” within the meaning of that provision, it had to meet the following three criteria: (a) the expressed statement had to actually tarnish a person’s honour or dignity; (b) the person making the statement had to pursue the aim of tarnishing a person’s honour or dignity from the outset, meaning having the intention to belittle and humiliate a person; and (c) the statement had to be made publicly, which implied the presence of at least one third person. Furthermore, the definition of “insult” did not imply that any negative opinion or value judgment having a sufficient factual basis was not protected by law. When examining cases of alleged “insult”, the courts had to pay special attention to the explanations of the person who had made the public statement in order to determine whether he or she had had the intention to humiliate someone or whether he or she had objectively expressed a value judgment, acting in good faith.       relevant COuNCIL OF EUROPE materials    The Committee of Ministers of the Council of Europe      Recommendation No. R (97) 20 of the Committee of Ministers of the Council of Europe to Member States on “Hate Speech” 31 .     The relevant extracts from the Recommendation adopted by the Committee of Ministers on 30 October 1997 read as follows: “The Committee of Ministers ... Recommends that the governments of member states: 1.     take appropriate steps to combat hate speech on the basis of the principles laid down in this recommendation; ... 4.     review their domestic legislation and practice in order to ensure that they comply with the principles set out in the appendix to this recommendation. Appendix to Recommendation No. R (97) 20 Scope The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media. For the purposes of the application of these principles, the term ‘hate speech’ shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin. ... Principle 2 The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others. To this end, governments of member states should examine ways and means to: - stimulate and co-ordinate research on the effectiveness of existing legislation and legal practice; - review the existing legal framework in order to ensure that it applies in an adequate manner to the various new media and communications services and networks; - develop a co-ordinated prosecution policy based on national guidelines respecting the principles set out in this recommendation; ... - enhance the possibilities of combating hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction; ... Principle 3 The governments of the member states should ensure that in the legal framework referred to in Principle 2, interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of, or interference with, freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others. Principle 4 National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein. Principle 5 National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect’s right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.”      Recommendation Rec(2010)5 of the Committee of Ministers of the Council of Europe to Member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity 32 .     The relevant extracts from the Recommendation adopted by the Committee of Ministers on 31 March 2010 are summarised in Oganezova v.   Armenia (nos. 71367/12 and 72961/12, § 59, 17 May 2022).    European Commission against Racism and Intolerance (ECRI) ECRI Report on Armenia 33 .     The relevant parts of the report on Armenia published by ECRI on 4   October 2016 read as follows (footnotes omitted): “ECRI notes a rise in hate speech leading to acts of violence. The main targets of this are members of the LGBT community and non-traditional religious groups. This situation is all the more worrying given that there is high level of under-reporting of racist and homo/transphobic crime and that the effectiveness of the criminal, civil and administrative law provisions dealing with hate crime or discrimination is seriously hampered by the shortcomings in legislation. In addition, political discourse frequently contains statements stigmatising these vulnerable groups, which helps trivialise racist and intolerant attitudes within the population. Criminal law ... 2.     ECRI notes that Article 226 of the Criminal Code refers only to nationality, race, and religion as the characteristics of the victims of racist acts that are classified as criminal offences (hereafter ‘prohibited grounds’) ... This list of prohibited grounds ... does not refer to sexual orientation and gender identity ... ... Civil and administrative law ... 12.     The Armenian authorities have ... recognised the need for an anti-discrimination law ... 17.     ECRI again recommends that the Armenian authorities adopt comprehensive civil and administrative legislation against discrimination – which should also cover the grounds of interest to ECRI – in all key fields of life ... Treatment of homo/transphobic speech in the Criminal Code ... 26.     ECRI recommends that sexual orientation and gender identity be expressly added to the prohibited grounds in Article 226 of the Criminal Code... Hate speech in political discourse 29.     ECRI notes a worrying level of intolerant statements against people belonging to the LGBT community, in particular by political leaders ... 30.     ...Following a publication in an Armenian newspaper in May 2014 of an anti-gay black list of people, a ruling political party MP [H.B.] publicly supported the article; he also appeared as a witness for the newspaper in related court proceedings ... 37.     As regards homo/transphobic hate speech, ... [a] particularly worrying case of anti-LGBT hate speech in the media has already been referred to [above]: in 2014, an Armenian newspaper called ‘Iravunk’ published an anti-gay black list of people, with direct incitement to discrimination and intolerance towards them ... 40.     ECRI considers hate speech particularly worrying because it is a first step in the process towards actual violence, as demonstrated by several violent incidents against people belonging to ... the LGBT community ... 90.     ... According to a survey conducted in 2012 by a local NGO, 72% of the Armenian population believe that the state should take measures to ‘fight against homosexuals’. A survey released the same year ... revealed that 94% of the persons interviewed in Armenia would not want a gay neighbour. NGOs report that ‘society either believes that homosexuality is a disease to be treated or people simply do not wish to accept something which is different from their traditional understanding of morality and family’. As a result, LGBT persons in Armenia ‘exist, but not many are out in the open. They are hiding, though the general attitude is not negative; they are just seen to be ill people who are unfortunate to be born like that’. Legislation 91.     A general equality clause is included in Article 14.1 of the Armenian Constitution, prohibiting discrimination on the grounds of, among other things, gender and ‘other personal or social circumstances’ ... However, ECRI understands that, as was the case for hate speech ... general antidiscrimination standards have not been applied so far to LGBT persons in court proceedings, and the authorities have not provided ECRI with references to relevant case law in this respect. Moreover, since the burden of proof lies with the victim and there exists neither a legal definition of discrimination in Armenian law nor an adequate mechanism for investigating discrimination complaints, it remains difficult to prove discrimination cases on the grounds of sexual orientation or gender identity ... 99.     ECRI’s analysis shows the pressing need for the Armenian authorities to adopt comprehensive legislation to protect against discrimination, including on grounds of sexual orientation and gender identity and to establish effective mechanisms and procedures for dealing with complaints in this area ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION in conjunction with article 14 34.     The applicants complained that the article of 17 May 2014 and subsequent articles had amounted to harassment and hate speech and had interfered with their private life, while the State had failed to provide protection in that regard, in breach of Articles 3 and 8 of the Convention. The State had also failed to acknowledge and provide protection from the discriminatory motives of the author, including the bias-motivated abuse and incitement to discrimination on the grounds of thei