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
[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
[vi] Karatas v Turkey
[vii] Id.
[viii] Incal v. Turkey
[x] B.H., M.W., H.P. and G.K.
v Austria
[xi] Id.
[xii] Han v Turkey
[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
[xiv] Vogt v. Germany
[xv] Vajnai v. Hungary
[xvi] Leroy v. France
[xvii] Engel,
et alis v. The Netherlands
[xviii] Karatas v Turkey
[xix] Chorherr v. Austria
[xx] Ozgur Gundem v. Turkey
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