Does the European Court of Human Rights Defend freedom of expressions enough?

The European Court of Human Rights (ECtHR) recently issued a series of judgments showing that its commitment to freedom of expression is not always consistent: Alekhina v Russia, (Application no. 38004/12), 17 July 2018 (the “Pussy Riot” case); Terentyev v Russia (Application no. 10692/09), 28 August 2018, and E.S. v Austria (Application no. 38450/12), 25 October 2018.

 The impugned utterances

Pussy Riot is an all-female punk band notorious for criticising Putin, his alliance with the Russian Orthodox Church, and the suppression of gay rights and public protest. One of their lyrics begins:

“Virgin Mary, Mother of God, drive Putin away

Drive Putin away, drive Putin away

[….]

The phantom of liberty is in heaven

Gay pride sent to Siberia in chains

The head of the KGB, their chief saint,

Leads protesters to prison under escort

So as not to offend His Holiness

Women must give birth and love

Shit, shit, holy shit!”

On 21 February 2012, it sought to perform this song before the altar of Christ the Saviour Cathedral in Moscow. This lasted one minute and 35 seconds, before security guards dragged the performers away. The women were charged with hooliganism for reasons of religious hatred. They were convicted and sentenced to two years’ imprisonment.

 Mr Terentyev’s problems began in February 2007, after police raided a newspaper which supported an opposition candidate, during an election campaign in the Komi Republic. A local blogger reported the raid. Mr Terentyev posted a comment on the blog entitled: “I hate the cops, for fuck’s sake”. He wrote:

“A pig always remains a pig. Who becomes a cop? Only lowbrows and hoodlums – the dumbest and least educated representatives of the animal world. It would be great if in the centre of every Russian city, on the main square … there was an oven, like at Auschwitz, in which ceremonially every day, and better yet, twice a day (say, at noon and midnight) infidel cops would be burnt.”

On 7 July 2008, he was convicted of inciting hatred and enmity and humiliating the dignity of a group of persons, on the grounds of their membership of a social group, and sentenced to one year’s suspended imprisonment.

ES lives in Vienna. From January 2008, she held a series of seminars, open to the public, called “Basic Information about Islam”. One was attended by an undercover journalist, who reported ES to the police. ES had said: “Muhammad… was a warlord, he had many women, to put it like this, and liked to do it with children….”. She then recounted a conversation she had with her sister:

And her: “You can’t say it like that!” And me: “A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?” Her: “Well, one has to paraphrase it, say it in a more diplomatic way.”

ES meant that Muhammad married one of his wives when she was aged six and consummated the marriage when she was nine. ES was convicted of disparaging religious doctrines, on the basis that she had imputed paedophilic tendencies to Muhammad, and thereby suggested that he was not a worthy subject of worship or veneration. She was fined €480. The first instance court stated:

Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society. ….the interference with the applicant’s freedom of expression in the form of a criminal conviction had been justified as it had been based in law and had been necessary in a democratic society, namely in order to protect religious peace in Austria.”

The European Court’s findings

The ECtHR found violations of Article 10 in the two Russian cases, whilst dismissing ES’ application. Russia has referred the Pussy Riot ruling to a Grand Chamber.

The ECtHR found in the Pussy Riot case that the circumstances did not support a finding of incitement to religious hatred. It cited the Grand Chamber ruling of Perinçek v Switzerland, (Application no. 27510/08), 15 October 2015. In Perinçek, the Grand Chamber approved a highly context-specific analysis of statements alleged to have stirred up violence, hatred or intolerance. It held that the interplay between a number of factors, rather than any one of them taken in isolation, determines the outcome of the case.

Such factors include:

– whether the statements had been made against a tense political or social background;

– whether such statements, fairly construed and seen in their immediate and wider context, could be seen as a direct or indirect call for violence, or a justification of violence;

– the manner in which such statements were made;

– their capacity to lead to harmful consequences, directly or indirectly.

In Terentyev, it concluded that the police were not an unprotected minority group that might need heightened protection from insult; rather, they should display “a particularly high degree of tolerance to offensive speech, unless such inflammatory speech is likely to … expose them to a real risk of physical violence”. It criticised the domestic courts:

they focused on the nature of the wording used by the applicant, limiting their findings to the form and tenor of the speech. They did not try to analyse the impugned statements in the context of the relevant discussion and to find out which idea they sought to impart. 

Terentyev’s post formed part of a discussion of the role of the police during an electoral campaign. It therefore concerned a matter of public concern, in which restrictions of freedom of expression are to be strictly construed. His words showed his emotional disapproval and rejection of what he saw as abuse of authority by the police.

By contrast, the ECtHR was unsympathetic to ES’ comments to an audience of 30 people, though there was no evidence of any public outcry. It cited existing case-law that gives states a wide margin of appreciation, where the protection of religious sensibilities is concerned:

As paragraph 2 of Article 10 recognises, however, the exercise of the freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane (see Sekmadienis Ltd. v. Lithuania , no. 69317/14, § 74, 30 January 2018…). Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures (see for example..Otto-Preminger-Institut, § 47).

The Court did not undertake a full Perinçek–style analysis, however. It will be interesting to see if ES seeks a Grand Chamber referral.

By Barbara Hewson ,barrister

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