European Court holds conviction for public demonstration violates right to freedom of expression4 minute read.
Mătăsaru v Republic of Moldova, Application Nos. 69714/16 and 71685/16
Date of judgment: 15 January 2019
Court: European Court of Human Rights, Second Section
On 15 January 2019, the European Court of Human Rights (European Court) held that the applicant’s right to freedom of expression under article 10 of the European Convention on Human Rights (European Convention) had been violated. The applicant had been convicted of hooliganism under the domestic law and given a suspended sentence of two years’ imprisonment. The applicant’s conviction arose from a demonstration that he had conducted in front of the Prosecutor General’s Office, involving a sculpture of an erect penis with a picture of the face of a high-ranking politician attached to its head; and another sculpture of a vulva with pictures of several high‑ranking prosecutors between the labia.
Background
The applicant has been involved in numerous protests against alleged acts of corruption and abuse committed by police officers, prosecutors and judges, and had himself been the victim of police abuse, ill-treatment and prosecutorial inaction. Each year during the professional holiday of the prosecutors or the police, he staged protests involving live animals, toilets, caricatures and masks.
On 29 January 2013, the applicant conducted a demonstration in front of the Prosecutor General’s Office. The aim of the protest was to draw public attention to the corruption and the control exercised by politicians over the Prosecutor General’s Office. The applicant installed two wooden sculptures on the stairs of the Prosecutor General’s Office: the first sculpture, which measured two metres, represented an erect penis with a picture of the face of a high-ranking politician attached to its head; and the second sculpture represented a vulva with pictures of several high‑ranking prosecutors between the labia. The applicant also inflated balloons in the form of male genitals and attached them to nearby trees.
Approximately an hour after the demonstration began, the police removed the sculptures and took the applicant to a police station. The applicant was charged with the criminal offence of hooliganism. In March 2015, the applicant was found guilty as charged, and sentenced to two years’ imprisonment (suspended for three years). In deciding on the sanction, the court considered, amongst other things, that the applicant had previously been sanctioned with fines for similar deeds; that the applicant’s deeds had been immoral because he had exposed obscene sculptures in a public place where they could be seen by anyone, including children; and that prosecution witnesses had testified that they considered the sculptures to be indecent and obscene. In the court’s view, assimilating public officials with genitals went beyond the acceptable limits of criticism in a democratic society, and the demonstration was therefore not protected under article 10 of the European Convention.
Judgment of the European Court
Before the European Court, the applicant argued that his criminal conviction amounted to an interference with his right to freedom of expression. The applicant argued further that the interference had not been prescribed by law because article 287 of the domestic Criminal Code had not been applicable to his situation, and that the interference had not been necessary in a democratic society. Article 287, which deals with the offence of hooliganism, provides that: “Hooliganism, meaning deliberate actions grossly violating public order, involving violence or threats of violence or resistance to authorities’ representatives or to other persons who suppress such actions as well as actions that by their content are distinguished by an excessive cynicism or impudence, shall be punished by a fine … or by community service for 180 to 240 hours or by imprisonment for up to 3 years.”
In assessing the merits of the case, the European Court reiterated that freedom of expression –
constitutes one of the essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual. … [I]t is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.
The European Court accepted that the applicant’s conviction was an interference with his right to freedom of expression, and that the interference pursued the legitimate aim of protecting the reputation of others. The judgment of the European Court therefore hinged on whether the interference was necessary in a democratic society. This required the European Court to determine whether the interference corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify the interference were relevant and sufficient.
In this regard, the European Court held that the domestic court had failed to conduct a proper balancing exercise of the different interests involved, and imposed a very heavy sanction on the applicant in the form of a suspended prison sentence. According the European Court, the circumstances of the case presented no justification whatsoever for the imposition of a prison sentence. As stated in the judgment: “Such a sanction, by its very nature, not only had negative repercussions on the applicant but it could also have a serious chilling effect on other persons and discourage them from exercising their freedom of expression. The fact that the sentence was suspended does not alter that conclusion”.
Accordingly, the European Court held that the criminal sanction imposed on the applicant was “manifestly disproportionate in its nature and severity to the legitimate aim pursued by the domestic authorities”, and that the domestic courts went beyond what would have amounted to a necessary restriction on the applicant’s freedom of expression. The European Court therefore held that there had been a violation of article 10 of the European Convention.
Order of the European Court
In the result, the European Court made the following order:
“For these reasons, the Court, unanimously,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 10 of the Convention;
4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.”
The full judgment is accessible here.
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