Artistic Expression, Content Regulation / Censorship, Hate Speech, Indecency / Obscenity
Lopes v. Estado de São Paulo
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The European Court of Human Rights, by a majority of judges’ votes, found that the conviction of a soccer player for hate speech was a necessary and proportionate interference. Hence, the Courts’ decision declared the application manifestly-ill founded and thus inadmissible. The applicant, a well-known Croatian soccer/football player, was fined by domestic courts for shouting into a microphone at the end of a football match a cry that was used by and associated with the racist regime in Croatia during Second World War. The phrase “For Home – Ready” was a part of the official greetings of the Independent State of Croatia (ISC), a country based on fascism. The applicant argued that the cry was rooted in Croatian history and poetry, thus its use was not limited only to WWII. Nevertheless, the domestic courts denied such claims. According to the national courts, such a cry symbolized hatred towards people of a different religious or ethnic identity, and the cry was a manifestation of such racist ideology. Despite its historical and poetic roots, the yell was primarily associated with the ISC in today’s times. As a result, there was no violation of the right to freedom of expression.
The applicant is a football (soccer) player. After the official end of a match at Maksimir Stadium (Zagreb) he took the microphone, walked out onto the middle of the pitch and turned towards the spectators, addressing them by shouting “For Home” [para. 3]. The crowd replied “Ready!’” With his hand up, he repeated the same cry three times, and the audience responded in the same manner – “Ready!”.
The Zagreb Minor Offences Court found the applicant guilty of a minor offence under section 4(1)(7) of the Act on Prevention of Disorder on Sport Competitions since he incited hatred on the grounds of race, nationality and faith. The court explained that “the cry ‘For Home’ with the reply ‘Ready!’ [had been] used as the official greeting of the totalitarian regime of the ICS, and as such [was] rooted as a symbol of racist ideology, contempt towards other people on the basis of their religion and ethnic origin, and the trivialisation of victims of [crimes against] humanity” [para. 3].
Professor J.J. testified before the court as an expert witness, interpreting the phrase “For Home”. In its historical context, he described the term as “an old Croatian expression which [had been] used in various situations […] from poetry and art to political and social contexts, depending on the situation” [para. 3]. The professor concluded by saying that “the expression ‘For Home’ in all its forms had been used defensively and never in an offensive sense, therefore it was an old Croatian traditional greeting” [para. 3]. Nevertheless, the first instance court disagreed, noting that the applicant, considering all the surrounding circumstances, “was clearly inviting [spectators] to reply to his cry ‘For Home’ with ‘Ready!’, especially because he repeated it thrice [para. 3]. The court cited the ECtHR’s ruling in Sugg and Dobbs v. Sweden which stated that the prohibition of racist speech is essential in a democratic society.
On appeal, the High Minor Offences Court upheld the lower-court judgment, raising the fine to 25000 HRK (around 3300 EUR). The court argued that the expert’s view was not binding on the court and that the expert’s opinion could not be used to “derive a universal answer concerning the nature of the use of the greeting ‘For Home – Ready!’”. It was “an uncontested fact that the said cry, irrespective of its original Croatian literary and poetic meaning, was used also as an official greeting” of the Ustashe movement in ICS. The Ustashe regime was rooted in fascism and, the cry thus “symbolize[d] hatred towards people of a different religious or ethnic identity, the manifestation of racist ideology, as well as demeaning the victims of crimes against humanity”, sums up the court [para. 5].
The applicant filed a constitutional appeal with the Constitutional Court of Croatia. He argued for a violation of the right to freedom of expression on the grounds that the lower courts had imposed a blanket prohibition on the use of the phrase, regardless of its relating context and without making a proportionality assessment. However, the Court denied him any relief and affirmed the earlier courts’ decisions. The court determined that the conviction was based on law and pursued a legitimate aim – “the protection of the dignity of others, but also the basic values of a democratic society” [para. 7]. The court emphasized that the right to freedom of expression comes with obligations, and the applicant’s conviction was not disproportionate. The court also dismissed other claims related to the alleged violation of the right to equality and a fair trial and discrimination.
After the domestic proceedings, the applicant lodged the application before the ECtHR.
The ECtHR had to assess whether the Croatian authorities violated the applicant’s right to freedom of expression (Article 10 of ECHR), the right to a fair trial (Article 6 of ECHR), and the right not to be punished without law (Article 7 of ECHR). The applicant also invoked Article 13 (the right an effective remedy) and Article 1 of Protocol No. 12 (general prohibition of discrimination).
The right to freedom of expression
The court began its examination by restating its well-known principles on Article 10. Initially, the court stressed that Article 10 protects even statements that offend, shock or disturb due to the “demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” [para. 36]. In interpreting Article 10, the court invoked Article 17 (prohibition on activities destroying any of the rights and freedoms set forth in the Convention) to say that speech that was incompatible with the ECHR’s declared and guaranteed values was not protected under Article 10. Speech that incites hatred or violence, for example, falls into this category. The Court, however, determined not to apply Article 17 since the interference with the applicant’s right was justified by Article 10 paragraph 2.
Interference, legality and legitimate aim
The court acknowledged that the conviction amounted to interference, but it was justified as it was based on domestic law (section 4(1)(7) and 39a(1)(2)of the Act on Prevention of Disorder at Sport Competitions) and pursued a legitimate aim “of preventing disorder and combating racism and discrimination at sport competitions” [para. 42].
The ECtHR opined that the national courts provided sufficient and relevant reasons for the conviction and interference with the right protected by Article 10 of ECHR. The national courts analysed carefully all aspects of the case and “held that the said expression, irrespective of its original Croatian literary and poetic meaning, had been used also as an official greeting of the Ustashe movement and totalitarian regime of the Independent State of Croatia. That phrase had been present in all official documents of that State. The national courts also held that the Ustashe movement had originated from fascism, based, inter alia, on racism, and thus symbolised hatred towards people of a different religious or ethnic identity and the manifestation of racist ideology” [para. 44]. Another noteworthy aspect of the case was that the applicant chanted ‘For Home’ four times while the large crowd responded with ‘Ready’. “[T]he applicant, being a famous football player and a role-model for many football fans, should have been aware of the possible negative impact of provocative chanting on spectators’ behavior […] and should have abstained from such conduct”, emphasized the court [para. 45].
After ruling that the interference served a pressing social necessity, the court considered the sanction’s proportionality. Because the applicant was fined approximately 3300 Euros for a minor offense rather than a criminal offense, the court deemed the amount proportionate. Thus, the ECtHR found no reason to substitute the findings’ of the domestic courts “having regard to the relatively modest nature of the fine imposed on the applicant and the context in which the applicant shouted the impugned phrase” [para. 48].
In conclusion, the court invoked Article 35 §§ 3 (a) and 4 of ECHR and rejected the application as manifestly ill-founded.
The right a fair trial
The applicant contested the conviction due to the alleged inconsistency of the domestic case-law relying on two judgments in different cases where accused persons were found not guilty of the same offence. The ECtHR’s denied such claim since in one of those cases the accused was acquitted on account of an “erroneous qualification of the offence”, as noted by the Croatian Constitutional Court [para. 24]. Regarding the other judgment with the opposite findings, the ECtHR concluded that one decision could not amount to “profound and long-standing differences” in domestic case-law [para. 24].
Principle of legality
Under Article 7 of the ECHR, the applicant claimed that he had been penalized for an act that did not constitute an offense. Yet, the court found this claim to be inadmissible under Article 35 §§ 1 and 4 of the Convention as the applicant failed to raise it before national courts.
Regarding claims under Article 13 and Article 1 of Protocol No. 12 the ECtHR found no “appearance of a violation of the rights and freedoms set out in the Convention or its Protocols” [para. 51]. Therefore, the claims were rejected as manifestly-ill founded as well.
By a majority of judges, the ECtHR declared the entire application inadmissible, based on the above-mentioned conclusions. Due to the Rule 56 (1) of the Rules of Court, the Court may only mention whether a decision was rendered unanimously or by a majority. No exact number of dissenting judges can be specified. This is a substantial difference compared to judgments, which list the exact number of majority and dissenting justices. Dissenters can also publish their opinions in the form of judgments, but not in the form of decisions. It’s worth noting that the ECtHR only makes decisions on admissibility issues; judgments are reserved for the merits of cases
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision may signify a development of the court’s practice. While this is not the first time the ECtHR has dealt with symbols in freedom of expression cases (e.g. Nix v. Germany or Vajnai v. Hungary), the ruling is important since it suggests that even symbols which originated in poetry centuries ago might now be labeled as hate speech or symbols of discrimination. The decision was not unanimous, and unfortunately, due to the Rules of the Court dissenting opinions are not published which prevents any insight into how dissenting judges considered the issues. Furthermore, due to the absence of unanimity, the court’s decision to declare the application manifestly ill-founded under Article 35 of the ECHR is not compelling.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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