LIMITS TO EXPRESSION UNDER STRASBOURG JURISPRUDENCE (First of Two Parts)

by; CHERYL L. DAYTEC-YANGOT

In the  jurisprudence of the European Court of Human Rights (ECHR), freedom of expression[i]  is highly apprized. Thus it entrenched a principle of liberal interpretation in favor of rights holders when there is a clash between the right and government interests in every case. This liberal interpretation is complemented by the principle of narrow interpretation of exceptions to its free exercise.[ii] Where there is interference, the necessity therefor must be convincingly established.[iii]

However, Strasbourg jurisprudence is also very zealous against the use of expression for ends incompatible with democratic principles. Where expression is employed as license to justify acts challenging the democratic paradigm contemplated under the ECHR[iv], Strasbourg frowns. Procurement to public disorder and violence against an individual or a class of the population is considered repugnant to democratic principles and hardly inspires Strasbourg’s sympathy.

One principle prominent in Strasbourg jurisprudence   on matters involving free expression stands out.  Contracting States “enjoy a certain margin of appreciation in assessing whether and to what extent an interference is necessary"[v]  and this margin is wider in cases of incitement to violence, public disorder and hatred.[vi]

But  “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician.”[vii] Holding that contracting States, “in their capacity as guarantors of public order,”  are free to adopt  measures to restrict freedom of expression,[viii] their actions are, in  a democratic system, subject to close scrutiny of authorities and the public, and, as the dominant force, must “display restraint in resorting to criminal proceedings.”[ix]  Underlying this is the  principle of narrow interpretation against States even in public disorder cases.

Public order is envisaged to refer not only to public order or ordre public but also embraces order “that must prevail within the confines of a specific social group.”[x] Thus Strasbourg held that restriction of  expression that tended to create disorder in the armed forces, a specific group, was proper considering that disorder in that group can have repercussions on societal order. [xi]

The test on incitement takes the speech in its entirety and concerns itself with determining whether it  encourages violence,  public disorder, armed resistance and insurrection.[xii]  There must be    sufficient nexus between expression and the real possibility of resulting violence for  interference to be justified. Although Strasbourg adheres to a principle of  tolerance and broadmindedness, consistent to which it protects information and ideas that shock, offend and disturb,[xiii] imminence of violence  is way above the threshold of real possibility.

In drawing the demarcation line between permissible and impermissible expression, Strasbourg evaluates intent,  content and context. Thus, although communism is regarded reprehensible to democracy, sheer membership in a communist organization not legally banned is insufficient basis to penalize an individual especially where the latter has not advocated violence and this intent to promote disorder cannot be presumed.[xiv]  Mere use of aggressive language does not legitimize  interference. The use of an equivocal symbol associated both  with communism and  proletariat struggle for better labor conditions was held not to promote  totalitarian propaganda.[xv] Where a cartoon condoning  11 September 2001 terrorist attack was published soon after in an area with separatist elements, Strasbourg held that the expression glorified violence.[xvi] When journals questioning military discipline were distributed among soldiers under a charged atmosphere of military discontent, it was held that there was incitement to public disorder.[xvii]

 Strasbourg jurisprudence considers  medium of expression and  audience size. In one case,  explosive poems  which literally might be  procurement to violence was upheld  as legitimate expression. Ruling against the State, Strasbourg said that it must  “be borne in mind that the medium used by the applicant was poetry, a form of artistic expression that appeals to only a minority of readers.”[xviii] This implies that if the  medium had mass appeal, the judgment would have been different. The audience size was a consideration  when leaflets assailing a military decision was distributed during a military parade witnessed by 50,000 people.[xix]

Strasbourg  employs the  fair balance test in determining if a positive obligation exists even in cases related to public disorder or violence. It said that  regard must be had to the fair balance to be struck between the community’s general interest  and the individual rights.[xx]

Historical matters figure in the equation of appraising  whether expression promotes public disorder or violence or tenets antithetical to democracy. Thus, Strasbourg is emphatic that  National Socialism principles  are  beyond  the ambit of protection ‘out of respect for the historical past forming the background to the Convention” declaring that  National Socialism is a totalitarian doctrine incompatible with democracy and human rights.”[xxi]




[i] This is protected under Article 10 of the European Convention on Human Rights.
[ii] Vajnai v. Hungary, Application No. 33629/06.
[iii] Autronic AG v. Switzerland, judgment of 22 May 1990; Worm v. Austria, judgment of 29 August 1997; Vajnai, id.
[iv] European Convention on Human Rights
[v] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.
[vi] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.
[vii] Id.
[viii] Incal v. Turkey, 9 June 1998
[ix] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV
[x] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87, 12 October 1989.
[xi] Id.
[xii] Han v Turkey, Judgment of 13 September 2005.
[xiii] Müslüm Gündüz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC), 23168/94, ECHR 1999-IV; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.
[xiv] Vogt v. Germany, id.
[xv] Vajnai v. Hungary, Application No. 33629/06
[xvi] Leroy v. France, Application No. 36109/03
[xvii] Engel, et alis v. The Netherlands, Application No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72
[xviii] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.
[xix] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.
[xx] Ozgur Gundem v. Turkey, Application No. 00023144/93; 16/03/2000
[xxi] B.H., M.W., H.P. and G.K. v AustriaApplication No. 12774/87, 12 October 1989.
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