Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Expands Expression
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The European Court of Human Rights unanimously found the criminal conviction of a protester for an allegedly “obscene” demonstration to be a “manifestly disproportionate” interference with his right to freedom of expression. The case concerned a one-hour, peaceful, anti-corruption demonstration involving one person with two “obscene” statues representing alternately politicians and prosecutors, which the police halted on the grounds of restoring public order. The Court concluded that the domestic courts had failed to properly balance the competing interests and that the severe criminal sanctions could result in a serious chilling effect on expression.
The applicant Mr Anatol Mătăsaru is a Moldovan national residing in Chișinău. He was the victim of police abuse in the past which in part motivated him to engage in repeated protests against police corruption and judicial misconduct. The European Court previously heard a case brought by Mătăsaru related to his ill-treatment by the police and a subsequent inefficient investigation by the authorities where the Court found in his favor and awarded damages. (see Mătăsaru and Saviţchi v. Moldova , no. 38281/08, 2 November 2010)
The present case originates from a solo protest Mătăsaru staged in front of the Prosecutor General’s Office on 29 January 2013, the official holiday for prosecutors. Mătăsaru’s stated aim of the protest was to raise public awareness of political influence over the Prosecutor General’s Office. To illustrate his point, Mătăsaru installed a two-meter high sculpture of a penis wearing a tie and with the head of a well-known politician next to a statue of a large vulva with two pictures of prosecutors attached to it. Although the protest was peaceful, an hour after the installation the police arrived to confiscate the sculptures and to take Mătăsaru into custody where he was charged with hooliganism under article 287 of the Criminal Code. The criminal offense of hooliganism is defined as “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.” The investigation into his conduct was undertaken by the department whose director was one of the prosecutors featured on the statue of the vulva.
On 2 March 2015, the Râșcani District Court taking into consideration Mătăsaru’s past offenses, sentenced him to two years imprisonment, suspended for three years, during which time he was prohibited from engaging in any protests or risk imprisonment. The Court found his conduct to be obscene and “beyond the acceptable limits of criticism in a democratic society and was therefore not an act protected under Article 10 of the Convention.” [para. 10] His accusations of corruption were also deemed not to have any factual basis. The Court further found the public display of the statues to be immoral as they could have been seen by children. The Chișinău Court of Appeal and the Supreme Court of Justice rejected his appeals and upheld the lower court ruling.
The primary issue before the court was whether Mătăsaru’s criminal conviction for hooliganism in relation to his political protest was a justifiable interference of his freedom of expression.
The Court determined the complaint should be examined from the standpoint of Article 10 of the Convention alone, despite Mătăsaru’s argument that his conviction constituted breaches of his right to freedom of expression guaranteed by Article 10 of the Convention and his right to peaceful assembly guaranteed by Article 11 of the Convention. The Court provided provided no justification for its decision. [para. 18]
Mătăsaru argued that the protest pertained to a matter of significant public interest and that his peaceful conduct did not qualify as hooliganism as defined under 287 of the Criminal Code. He, therefore pleaded that his criminal conviction was neither provided by law nor necessary in a democratic society and hence was an interference with his right to freedom of expression.
The Government argued that his protest had not been banned at the outset but had to be stopped once it became “clear that due to its obscene nature it violated public order” and could be seen by children. [para. 25] The Government justified the severity of the sanction as the only means to curb his behavior.
The Court began by affirming the scope of freedom of expression as codified under article 10 and noted that it extends to information or conduct which may “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’.” [para. 28]
The Court then cited a range of its previous caw to demonstrate established protections of political expression, such as displaying a clothesline in front of Parliament to represent the “dirty laundry of the nation” (Tatár and Fáber v. Hungary , no. 26005/08and 26160/08, § 36, 12 June 2012) and pouring paint on statues of the former Turkish leader Ataturk to protest political policies (Murat Vural v. Turkey , no. 9540/07, §§ 54-56, 21 October 2014). The Court also referenced the Russian punk band Pussy Riot whose protests the Court found constituted “a mix of conduct and verbal expression which amounted to a form of artistic and political expression and that it was to be protected as such.” (see Maria Alekhina and Others v. Russia, no. 38004/12, 17 July 2018)
Applying the three part-test, the Court accepted that the interference pursued the legitimate aim of protecting the reputation of others. The Court questioned the Moldovan Court’s justification for applying criminal sanctions when the actions could have been prosecuted under the Code of Administrative Offenses. The Court found it was unnecessary to determine whether the interference was provided by law, and moved on to the question of whether it was necessary in a democratic society.
In order to assess whether the interference was necessary, the Court asked if it met a “pressing social need,” was proportionate to the legitimate aim pursued and whether the justifications were “relevant and sufficient.” [para. 33] The Court found that the national authorities had erred in their judgment that art. 10 was inapplicable in the present case and that the domestic courts had failed to properly balance the competing interests. Further, the imposition of a prison sentence for the present offenses was “manifestly disproportionate in its nature and severity to the legitimate aim pursued by the domestic authorities,” could have a significant chilling effect on freedom of expression for others, and hence could not be considered “necessary.” [para. 36] The Court unanimously found a violation of art. 10.
The Court awarded Mătăsaru EUR 2,000 in costs and expenses. It rejected his request for non-pecuniary damages finding the ruling in his favor to be just satisfaction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling expands expression by reaffirming previous European Court jurisprudence which protects expressive conduct on issues of public importance. Legal scholars Dirk Voorhoof and Ronan O Fathaigh find the judgment to be an important correction in the wake of the controversial Sinkova v. Ukraine ECtHR ruling in February 2018. In that ruling the Court found the arbitrary detention and imposition of a three-year suspended sentence for a provocative performance-art protest staged at a war memorial in Ukraine did not amount to a violation of the right to freedom of expression. Sinkova marked a concerning departure from established standards, and the Grand chamber further refused a referral request to rehear the case submitted by a Third Party Intervention joined by 22 national and international organizations. In their analysis, Voorhoof and Ó Fathaigh discuss a range of case law from the European Court to highlight the difference between expressive conduct in Mătăsaru which was “political expression targeting an elected official, and a number of public officials, in their official capacity, and on a matter of public interest” and other forms of allegedly obscene expression which has no public interest value and has been subject to legitimate restrictions by the court.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 287. Hooliganism: (1) 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 in the amount of 200 [4,000 MDL] to 700 [14,000 MDL] conventional units or by community service for 180 to 240 hours or by
imprisonment for up to 3 years.
Article 354. Petty hooliganism: Petty hooliganism, that is, accosting an individual in an offensive manner in a public place or other similar actions that violate moral norms or that disturb public order or the tranquility of an individual shall be punished with a fine of 10 [200 MDL] to 50 conventional units [1000 MDL] or with unpaid community work for 20 to 60 hours.
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