Sinkova v Ukraine, Application No. 39496/11
Court: European Court of Human Rights, Fourth Section
Date of judgment: 27 February 2018
The European Court of Human Rights (the ECtHR) has upheld a conviction for frying eggs on a war memorial, finding that this did not breach the applicant’s right to freedom of expression under article 10 of the European Convention on Human Rights (European Convention).
The applicant, Ms Sinkova, belonged to an artistic group that was known for its provocative public performances. In December 2010, together with other members, the applicant went to the Eternal Glory Memorial in the Ukraine, a remembrance for those who died in World War II. The applicant broke eggs into a frying pan and fried them over the Eternal Flame at the Tomb of the Unknown Soldier. Two of her friends joined and fried sausages on skewers over the flame, while another member of the group filmed this taking place. Two police officers approached them and made a remark that their behaviour was inappropriate, without further interference.
On the same day, the applicant posted the video on the internet with the following statement:
“Precious natural gas has been being burned, pointlessly, at the Glory Memorial in Kyiv for fifty-three years now. This pleasure costs taxpayers about 300,000 hryvnias [UAH] per month. And this is only one ‘eternal flame’ pagan temple, whereas there are hundreds or even thousands of them throughout Ukraine. On 16 December the St Luke Brotherhood reacted to this by an act of protest in the Glory Park in the capital. It showed that people should use the ‘eternal flame’.
We suggest to the outraged representatives of the Communist Party of Ukraine to follow the example of ancient Roman vestal virgins and to carry out around-the-clock duty at the ‘eternal flames’, keeping the fire lit manually by wood. There is no doubt that communists will have no problems with fulfilling this task, because they already have experience of taking care of the Lenin monument in Kyiv and their financing is much better than that which the vestal virgins had.”
Several complaints were made to the police that the action on the video had amounted to the desecration of the Tomb of the Unknown Soldier and called for criminal prosecution. Following some investigation, on 18 February 2011 the applicant was declared a wanted person. The following month, a judge ordered the applicant’s arrest with a view to bringing her before the court for examination, and she was subsequently arrested and questioned. The applicant indicated that her intention had only been to protest the use of natural gas, confessed to the offence and expressed remorse.
Before the domestic court, the applicant was convicted under article 297 of the Criminal Code of 2001 – which criminalises the desecration of a tomb or other burial place – and sentenced to three years’ imprisonment, suspended for two years. The applicant appealed, arguing amongst other things that the criminal proceedings had violated her right to freedom of expression under article 10 of the European Convention. The appellate court upheld the judgment of the court of first instance, finding that the restriction on the applicant’s right to freedom of expression was in accordance with the law and pursued a legitimate aim.
The ECtHR, in a 4-3 majority, agreed with the domestic courts that the applicant’s right to freedom of expression had not been violated. According to the majority, the restriction complied with the requirement of lawfulness and pursued the legitimate aim of protecting morals and the rights of others. With regard to whether this was necessary in a democratic society, the majority noted its position that the applicant carried out what she considered to be an artistic performance aimed at protesting the wasteful use of natural gas by the state, while turning a blind eye to poor living standards of veterans.
In the view of the majority, the applicant was not convicted for expressing her views, but rather on the narrow basis relating to her particular conduct in a particular place. In reaching its conclusion, the majority considered that eternal flames are a long-standing tradition in many cultures and religions most often aimed at commemorating a person or event of national significance, or serving as a symbol of an enduring nature. As stated by the majority: “There were many suitable opportunities for the applicant to express her views or participate in genuine protests in respect of the State’s policy on the use of natural gas or responding to the needs of war veterans, without breaking the criminal law and without insulting the memory of soldiers who perished and the feelings of veterans, whose rights she had ostensibly meant to defend.”
The majority therefore concluded that the restriction complained of by the applicant was reconcilable with the applicant’s right to freedom of expression under article 10 of the European Convention.
The minority of the ECtHR reached a different conclusion, and would instead have found that the applicant’s right to freedom of expression had been violated. As stated in the minority’s dissenting opinion, it is a firm stance of the ECtHR that the right to freedom of expression also applies to information or ideas that offend, shock or disturb the state or any sector of the population. According to the minority, the reasons for the restriction imposed by the domestic courts did not meet the threshold of being relevant and sufficient. This included, amongst other things, a failure by the domestic courts to address the purpose of the applicant’s performance and its satirical nature. The minority went on to note that criminal penalties for conduct such as that of the applicant are likely to have a chilling effect on satirical forms of expression relating to topical issues, in circumstances where such forms of expression can themselves play a very important role in open discussion of matters of public concern.
In conclusion, the minority stated that: “As a general remark, the present judgment inevitably gives rise to the question of how far a contracting State may criminalise insults to memory and designate certain spaces and structures as “off-limits” for individuals to exercise their right to protest and express their opinions, in a manner consistent with Article 10. There is a real risk of eroding the right of individuals to voice their opinions and protest through peaceful, albeit controversial, means.
The full judgment is accessible here.
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