Associative Harm in Ilareva: Clarity, Not Contraction [Guest Post]

(This is a guest post by Tanmay Durani)

Introduction

The commentary by Natalie Alkiviadou on Ilareva and Others v Bulgaria (“Ilareva”) presents the judgment as a moment of doctrinal slippage, an instance where the European Court of Human Rights (“Strasbourg Court”) has blurred the line between death threats and hate speech, and in doing so, stretched Article 14 (prohibition of discrimination) of the European Convention on Human Rights (“Convention”) beyond principled limits. More specifically, the concern is that the Strasbourg Court collapsed the distinction between individualised threats and equality-based harm, thereby expanding the reach of discrimination analysis into a terrain that is traditionally governed by criminal law and Article 8 (right to respect for private life) alone. 

The anxiety is intelligible. When courts expand positive obligations in the domain of speech regulation, the spectre of conceptual overreach is never far away.

How the Case Reached Strasbourg

To appreciate the stakes, however, the factual and procedural context of Ilareva requires closer attention. The applicants — Valeria Ilareva, Lidia Staykova, and Krasimir Kanev — were prominent human rights defenders in Bulgaria working with refugees and migrants at a time of heightened anti-immigrant rhetoric. In January 2015, they became the targets of a barrage of Facebook posts containing explicit death threats, including calls to “hang them at Parliament,” to “shoot them,” and to poison them. A photomontage portraying them as “Freaks of the Year” circulated widely. Their professional identities were publicly known, office addresses easily accessible, and one of the applicants was later physically attacked after appearing on television.

Complaints were lodged with the Bulgarian authorities under two provisions of the Criminal Code: Article 144 (criminal threats) and Article 162 (hate speech). Prosecutors, however, chose to pursue only Article 162 and declined to investigate the more direct charge of threats. Crucially, they then concluded that the applicants could not qualify as “victims” under the hate speech provision because they were not themselves members of a protected minority. The investigation stalled, with authorities characterising the posts as “negative assessments” unlikely to generate justified fear because they were made online. 

In effect, the applicants were excluded from protection both as victims of threats and as victims of hate speech. This failure created a ‘protection vacuum’ where the domestic authorities’ formalistic interpretation of victimhood effectively immunized prejudice-motivated threats from legal scrutiny. It was against this backdrop that the case reached Strasbourg.

Layered Harm in Digital Space

A closer reading of Ilareva, however, suggests not the erosion of doctrinal clarity, but an attempt — albeit imperfect, and perhaps under-theorised — to grapple with the layered nature of harm in contemporary digital environments. Online threats differ from their offline analogues not merely in medium but in scale, permanence, and networked amplification. They circulate rapidly, accumulate visibility, and can generate diffuse but enduring intimidation. And so, to that extent, the Strasbourg Court appears to have recognised that such harm may operate simultaneously at multiple normative levels -

It locates the threats within a matrix of prejudice. The applicants were targeted not randomly, but because of their professional association with refugees and migrants. The hostility was thus directed simultaneously at individuals and at the equal civic standing of the groups they defended. This is the hinge of the disagreement.

The charge of “hate speech by association” assumes that equality-based protection is triggered only when the immediate target belongs to a protected class. Yet anti-discrimination law has long recognised associative harm. One need only recall the reasoning in Beizaras and Levickas v Lithuania, where the Court held that homophobic abuse required investigation under Articles 8 and 14, not solely because of the personal distress caused, but because of its discriminatory character. Or consider the trajectory from Aksu v Turkey to Minasyan and Others v Armenia, where the Court progressively acknowledged that speech reinforcing structural prejudice inflicts harms that exceed individual reputational injury.

Seen in this light, Ilareva does not invent a new category; it extends an existing logic to a context where prejudice operates through proxy. This reflects the doctrine of 'transitive animus,' where the hostility directed at the advocate is not a separate injury but a 'mirrored' manifestation of the structural prejudice aimed at the primary group.

The deeper concern, however, is about hierarchy.

Does the invocation of Article 14 risk suggesting that a death threat becomes more legally significant when prejudice-motivated? That anxiety misconceives the function of equality analysis. Criminal law across many European jurisdictions treats bias motivation as an aggravating factor — not because threats absent bias are trivial, but because prejudice-based violence compounds harm. It intimidates communities, chills participation, and signals exclusion from the civic order. To acknowledge this additional dimension is not to dilute the gravity of threats per se; it is to recognise that harm can be cumulative and relational. Indeed, to exclude activists from equality protection on the ground that they are not themselves members of the vulnerable group would create a perverse asymmetry: solidarity would receive less protection than identity, narrowing Article 14 in a manner inconsistent with its purpose.

Concluding Thoughts

None of this is to deny that Strasbourg’s reasoning would benefit from sharper articulation. The Court’s positive obligations jurisprudence has expanded steadily, and its doctrinal architecture sometimes lags behind its normative intuitions. The justification for regulating hate speech lies not merely in preventing offence, but in protecting public assurance — the guarantee that all members of society can stand as equals without being publicly denigrated or threatened (Waldron, 2012). If that is the animating principle, then threats aimed at silencing those who defend minorities directly undermine that assurance. What remains for the Court, however, is to specify the analytical thresholds that distinguish (i) unprotected threats of violence, (ii) discriminatory hostility that engages Article 14, and (iii) protected but unsettling expression. Greater clarity as to intent, severity, nexus to protected characteristics, and demonstrable impact would go some way toward stabilising the framework.

Ultimately, Ilareva should not be read as collapsing categories, but as recognising their intersection. Death threats are punishable because they endanger personal security; prejudice-motivated threats implicate equality as well. The convergence of Articles 8 and 14 in such circumstances reflects the dual nature of the harm rather than an inflation of doctrine. The challenge for Strasbourg is not to retreat from this recognition, but to render explicit the theory that underpins it. Without such theoretical precision, critics will continue to perceive expansion where the Court may intend doctrinal continuity. With it, the jurisprudence can evolve without surrendering the commitment to freedom of expression that lies at the heart of the Convention system.