Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Contracts Expression
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The European Court of Human Rights found that the imposition of a three-year suspended sentence for a provocative performance using a war memorial in Ukraine did not amount to a violation of the right to freedom of expression. The case concerned the arrest, detention and conviction of Anna Sinkova, who fried eggs on the flame of the Tomb of the Unknown Soldier in Kyiv as a protest against the waste of natural gas. She was arrested and detained for three months pending criminal proceedings on the charge of desecrating the tomb, and was eventually convicted. The European Court of Human Rights found that Ms. Sinkova’s conviction for allegedly desecrating the Tomb of the Unknown Soldier had interfered with her right to freedom of expression, but that the interference was “necessary in a democratic society.” It held, among other things, that she was not convicted for expressing specific views but for carrying out certain conduct in relation to the tomb that amounted to a criminal offence. Furthermore, it observed that Ms. Sinkova could have found more suitable ways to express her views or participate in protests about the State’s use of natural gas without breaking the criminal law or insulting the memory of soldiers who had given their lives defending their country. The European Court of Human Rights also found the sentence to be proportionate because Ms. Sinkova did not serve a day of it.
The case concerned Anna Sinkova who was, at the time of the events, a member of an artistic group called St. Luke Brotherhood, which was well-known for its provocative public performances.
On December 16, 2010, Ms. Sinkova, together with three other members, went to Kyiv to the Eternal Glory Memorial to those who perished in the Second World War, which contained the tombs of several soldiers including the one of the Unknown Soldier. Ms. Sinkova fried eggs on the flame of the Tomb of the Unknown Soldier, while two other members fried sausages on skewers over the flame. Another member of the group filmed the event. The police approached them and made a remark that their behavior was inappropriate. However, the police did not interfere further.
Later that day, Ms. Sinkova posted the video on the Internet on behalf of the St. Luke Brotherhood. The video accompanied by a statement explaining that the activities depicted were an act of protest against the natural gas that had been burned at the Glory Memorial. The statement explained that this burning was a waste of precious natural resources. The soundtrack to the video was a famous 1974 Soviet song “The battle is going on again,” devoted to the victory of the 1917 revolution and optimism about the future of the communist regime. The police received several complaints that the action of the video had amounted to desecration of the Tomb of the Unknown Soldier and called for criminal prosecution.
The police were able to identify one of the members (D.). On December 24, 2010, criminal proceedings were brought against D. and three unidentified individuals on the grounds of suspicion of desecration of a tomb. D. subsequently identified Ms. Sinkova from photographs shown to her by police. On February 5, 2011, the police questioned Ms. Sinkova’s mother and grandmother, who denied knowledge of Ms. Sinkova’s whereabouts or contact details. On February 18, 2011, Ms. Sinkova was declared wanted by the police.
On March 17, 2011, the investigator applied to the Pecherskyy District Court of Kyiv for Ms. Sinkova’s detention as a preventive measure pending trial. The judge of the Pecherskyy District Court allowed the application in part, ordering for Ms. Sinkova’s arrest with a view to bringing her before the court for examination. She was arrested on March 29, 2011 at the house of a third party. She confessed to the offence and expressed remorse, but explained that her intention was to protest against the inappropriate use of natural gas.
On April 1, 2011, the Pecherskyy District Court further remanded the applicant in custody as a preventive measure pending trial on ground that she had committed a serious offence, had absconded and might hinder establishment of the truth if at liberty. The judge limited the pre-trial detention to two months, with the possibility of extension. On May 25, 2011, the applicant was indicted and on the same day, the case was sent to the Pecherskyy Court for trial. On June 17, 2011 the Pecherskyy Court held a preparatory hearing, during which it refused to order for Ms. Sinkova’s release. On June 30, 2011, the Pecherskyy Court allowed for Ms. Sinkova’s release.
On October 4, 2012, Ms. Sinkova was found guilty of the desecration of the Tomb of the Unknown Soldier, acting as a part of a group of persons following a prior conspiracy. The Court argued, in particular, that “by committing deliberate acts in a group which showed disrespect for the burial place of the Unknown Soldier and for the public tradition of honouring the memory of soldiers who perished defending or liberating Kyiv and the lands of Ukraine from the fascist hordes, and by subsequently presenting those actions as a protest, [Ms. Sinkova] has tried to escape social condemnation of her conduct and criminal liability for the offence”. [para. 33]
In assessing the penalty to be imposed, the Pecherskyy Court considered the fact that Ms. Sinkova did not have a criminal record, that she was working as a political analyst, and that she had positive character references from her place of residence and work. On the other hand, it alleged that she had not shown any remorse for what she had done. She was sentenced to three years’ imprisonment, suspended for two years.
On appeal, the Kyiv City Court of Appeal upheld the judgment of the first-instance court. The City Court of Appeal found, among other things, that Ms. Sinkova’s right to freedom of expression had been restricted in accordance with the law and had pursued a legitimate aim. On April 11, 2013, the Higher Specialized Court for Civil and Criminal Matters rejected a further appeal.
Ms. Sinkova brought her case to the European Court on Human Rights, claiming that a number of her rights had been violated, including her right to freedom of expression and her right to liberty and security. In relation to her right to freedom of expression, she argued that the provision of the Criminal Code on the “desecration of a tomb or burial place” lacked clarity. She also argued, among other things, that her conviction did not pursue a legitimate aim, was imposed solely for the purpose of punishing her for expressing her views, and was unnecessary in a democratic society. The Government, on the other hand, maintained that, regardless of her stated motives, she had demonstrated disrespect and mockery. It argued that the conviction pursued the legitimate aim of protecting morals and the rights of others. It also argued that the sentence was proportionate since it had been suspended.
The European Court of Human Rights (Court) found no violation of Ms. Sinkova’s right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention). However, it did find violations under some parts of the right to liberty and security.
In relation to the right to freedom of expression, the Court first noted that it was not disputed by the parties that there had been an interference with the right. The Court went on to analyze whether it was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society.
When considering whether the interference was prescribed by law, the Court found that Ms. Sinkova was criminally prosecuted for desecrating the Tomb of the Unknown Soldier under Article 297 of the Criminal Code. The Court found that the provision was drafted with sufficient precision for it to be “prescribed by law” in accordance with Article 10 of the Convention. The Court stated that it was not convinced that the “legal provision was worded so vaguely that she could not foresee its applicability to her case. Indeed, it is neither possible nor reasonable to specify the behaviour that might be considered as amounting to desecration of a tomb in different circumstances.” In short, the interference was found to be lawful.
The Court also subscribed to the Government’s view that the interference pursued the legitimate aim of protecting morals and the rights of others. The Court went on to consider whether the interference was necessary in a democratic society. The Court first noted that Ms. Sinkova carried out what she considered to be an artistic performance aimed at protesting against wasteful use of natural gas by the State while turning a blind eye to poor living standards of veterans. The Court then held that she was prosecuted and convicted only on account of frying eggs over the Eternal Flame. She was not prosecuted for disseminating the video of the act, or her comment that accompanied the video. On this basis, the Court reasoned that she “was not convicted for expressing the views that she did or even for expressing them in strong language. Her conviction was a narrow one in respect of particular conduct in a particular place. Moreover, it was based on a general prohibition of contempt for the Tomb of the Unknown Soldier forming part of ordinary criminal law.” [para. 108] The Court also reasoned that there was no evidence that the domestic courts erred in their assessment of the relevant facts or incorrectly applied domestic law. The Court also noted that Ms. Sinkova’s personal circumstances were taken into account when deciding on her level of punishment.
The Court stated that eternal flames were a long-standing tradition in many cultures and religions often aimed at commemorating a person or event of national significance, or serving as a symbol of an enduring nature. The Court noted that the Eternal Flame in the present case was part of a monument commemorating soldiers who gave their lives defending their country during the Second World War. It added that Ms. Sinkova had “many suitable opportunities to express her views or participate in genuine protests in respect of the State’s policy on the use of natural gas or responding to the needs of war veterans, without breaking the criminal law and without insulting the memory of soldiers who perished an the feelings of veterans, whose rights she had ostensibly meant to defend.” [para. 110]
The Court also drew a distinction between this case and another, Murat Vural v. Turkey, where the Court found that peaceful, non-violent protests in principle should not be subject to the threat of a custodial sentence. The Court noted that the latter case involved a term of imprisonment of over ten years, while Ms. Sinkova had not served a single day of her sentence because it was suspended.
The Court concluded that the restriction was reconcilable with Ms. Sinkova’s right to freedom of expression. Therefore, there had been no violation of Article 10 of the Convention.
The Court did, however, find a number of violations of the right to liberty and security under Article 5 of the Convention. Firstly, it found that Ms. Sinkova’s detention between May 29 and June 17, 2011 was not covered by any judicial decision. Secondly, the Court found that less intrusive preventative measures than pre-trial detention should have been applied earlier in Ms. Sinkova’s case and the court’s reasons in justifying her continued detention were insufficient. Finally, the Court found that the Ukraine had not ensured, with a sufficient degree of certainty, the effective enjoyment of the right to compensation since Ms. Sinkova could not make a claim for compensation on the basis that her detention had been unlawful because the detention had been established by a judicial decision. Ms. Sinkova was awarded 4,000 EUR in respect of non-pecuniary damage arising from these violations of Article 5 of the Convention.
Joint partly dissenting opinion of judges Yudkivska, Motoc and Paczolay
The dissenting opinion disagreed with the majority’s finding that Article 10 of the Convention had not been violated. The dissenting judges recognized that, although the performance was extremely provocative, freedom of expression applied to information and ideas that offended, shocked or disturbed the State or any sector of the population. The judges could not find that the national authorities applied the principles under Article 10 of the Convention.
For instance, the judges noted that the domestic courts did not sufficiently address the purpose of the performance and its satirical nature. Under the Court’s case law, an interference with an artist’s right to use satire should be examined with particular care. The judges noted that no such care had been given in the present case. In fact, neither the domestic courts or this Court commented on the satirical nature of the expression. The judges also noted the nature of the protest, stating that “[i]n a fast-moving world, it is not surprising that those who wish to highlight a particular cause or voice an opinion would have recourse to those symbolic acts and demonstrations which are likely to gather a greater degree of attention and trigger a wider debate than might have been achievable with more conventional and established forms of protest.” [p. 25] Finally, the judges noted that the penalty imposed was disproportionate. In light of the above, the dissenting judges were of the opinion that there had been a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision seriously contracts expression since the European Court of Human Rights (Court) essentially upheld a severe penalty against an individual, for her peaceful yet provocative protest using a war memorial, as being consistent with the right to freedom of expression. The decision ignores the crucial importance of protecting satirical expression and gives little weight to the political message behind the protest. This seems to be inconsistent with the Court’s own case law, which has stated on many occasions that “there is little scope under Article 10(2) of the Convention for restrictions on political speech or on debate on matters of public interest.” (Sürek and Özdemir v. Turkey) The Court, in the present case, also glibly upheld the three-year term of imprisonment as proportionate because it had been suspended. Seemingly ignoring the potential negative consequences such measures could have on the provocative, controversial, and peaceful expression of others. It is also inconsistent with the Court’s previous judgments. For instance, in Murat Vural v. Turkey, the Court reasoned that peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence. The negative consequences that could flow from this decision were well-articulated in the concluding paragraph of the dissenting opinion, where it was remarked that “the present judgment inevitably gives rise to the question of how far a contracting State may criminalise insults to memory and designate certain spaces and structures as “off-limits” for individuals to exercise their right to protest and express their opinions, in a manner consistent with Article 10. There is a real risk of eroding the right of individuals to voice their opinions and protest through peaceful, albeit controversial, means.” [p. 26]
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