Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights (ECtHR) (fifth section) unanimously held that the Republic of Azerbaijan violated the right to freedom of expression of two journalists by imposing criminal sanctions for allegedly inciting religious hatred and hostility. The case concerned an article which compared the Eastern and Western philosophical traditions and spoke pejoratively of Islam. The article spurred strong criticism from religious groups, inspired protests in Iran and prompted an Iranian religious leader to issue a fatwa against the author. The Court found that while the restriction was provided by law and pursued the legitimate aims of protecting the rights of others and preventing disorder, it was not necessary in a democratic society. Taking into consideration the content, the context and intent of the speaker the Court held the article addressed the role of religion in society which was in the public interest. Further the margin of appreciation narrows for State’s when the expression involves freedom of the press. The domestic courts also failed to strike an appropriate balance between the competing rights as they based their findings largely on a textual analysis by outside experts rather than conducting their own legal assessment. Having considered all factors, The Court held that the applicants’ criminal conviction was disproportionate and not necessary in a democratic society and found a violation of freedom of expression guaranteed under Art. 10 of the ECHR.
The applicants were Mr Tagiyev and Mr Huseynov, journalists in Azerbaijan. Mr Tagivey is a well-known columnist who wrote an article entitled “Europe and us”, which was published in Sanat Gazeti newspaper on the 1st of November 2006 as part of a series entitled “East-West studies.” The second applicant, as a chief editor, approved this article for publication. A variety of religious figures and organizations in Azerbaijan and Iran severely criticised the article as it included a comparison between the Eastern and Western philosophical traditions and spoke of Islam in a pejorative manner.
On 11 November 2006, prosecutors initiated criminal proceedings and an investigation into the applicants based on Article 283 of the Criminal Code, which covers incitement to religious hatred and hostility, committed publicly or by use of the mass media. As part of the investigation, “a forensic linguistic and Islamic assessment” was conducted which concluded that aspects of the article could incite religious hostility. The impugned aspects of the text included a comparison stating that Jesus Christ was preferable to the Prophet Muhammad, and another which “ridiculed” eastern philosophers by likening them to clowns prone to madness. It highlighted another sentence which the authors of the report believed inferred “that Muslims livening in the West are terrorists and Islam supports terrorism.” The impugned sentence stated that “at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito.” [para. 11]
The applicants were detained pending trial. The Sabayil District Court on 4 May 2007 found the first applicant guilty of incitement to religious hatred and hostility (Art. 283.1 of the Criminal Code) and he was sentenced to three years’ imprisonment. The second applicant, as a chief editor of Sanat Gazeti, was sentenced to four years’ imprisonment under Art. 283.2.2 (inciting religious hatred and hostility perpetrated by a person using official position). These judgements were based solely on the forensic report.
Even though applicants applied for an appeal against these judgements on the ground of a violation of Article 10 of the European Convention and citing related case law, the Court of Appeal upheld the convictions on the 6th of July 2007, without considering the possible breach of freedom of speech. The Supreme Court upheld this decision on the 22nd of January 2008 based on the linguistic assessment and witness testimony. Before this decision, both applicants were released from prison by presidential decree on the 28th of December 2007.
The applicants lodged complaints against the Republic of Azerbaijan with the Court on 7 March 2008 claiming a violation of their Art. 10 rights due to their criminal conviction for the publication of the impugned article.
In 2011, while this case was pending before the ECtHR, the first applicant was stabbed to death by an unknown assailant on his way home from work and he died in the hospital on 19 November 2011. His wife was subsequently accepted by the Court as an applicant to pursue the complaint in question.
The main issue before the Court was whether the criminal convictions for incitement to religious hatred and hostility based on the article “Europe and us” amounted to a violation of freedom of expression.
The applicants argued that the article, which compared the values of Islam and Christianity, expressed an opinion and that their custodial sentences based on the findings of the forensic report was an unjustified and disproportionate interference with their freedom of expression. Moreover, they pointed out that the circulation of the newspaper was only around 800 copies, which has a small impact on society.
Even though the Government of Azerbaijan agreed with the applicants that the criminal conviction was an interference with their freedom of expression, it argued that this conviction was legitimate as the impugned article was an “abusive attack on religion,” that “offended and insulted religious feelings” and instigated severe criticism from segments of society. [para. 30-31] The Government submitted that states enjoy a wider margin of appreciation, especially when considering “public morals” as this concept has no uniform definition among the European societies. Thus, the domestic courts succeeded in striking a balance between freedom of religion and freedom expression.
The Court began by affirming that the criminal convictions constituted an interference with the right to freedom of expression under Art. 10 of the ECHR.
Next, the Court looked at whether this interference was justified under Art. 10(2) of ECHR. To be considered as a justified interference, the interference must be prescribed by law, the state must pursue a legitimate interest, and the interference must be necessary in a democratic society. In the instant case, the Court observed that the criminal convictions imposed under Art. 283 of the Criminal Code, were provided by law and pursued the legitimate aims of protecting the rights of others and preventing disorder. [para. 32].
The Court then assessed whether the criminal conviction met a pressing social need and hence was necessary for a democratic society. The Court stated that freedom of expression plays an essential role in the democratic society; the scope of the right covers not only inoffensive expressions but also offending, shocking and disturbing ones. In the present case, the Article 10 rights of the journalists must be balanced against the Article 9 to right Freedom of thought, conscience and religion, which imposes “a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane (see Giniewski v. France, no. 64016/00, § 43, ECHR 2006-I.” [para. 37] The Court clarified that “[w]here such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance” [para. 37], governments may restrict the right to freedom of expression. Further, State authorities have the discretion to adopt rules, including criminal sanctions to prevent disorder in their society, if proven necessary. State authorities also have a broader discretion to adopt restrictive measures since there is an “absence of a uniform European conception of the requirements of the protection of the rights of others concerning attacks on their religious convictions” [para. 39].
However, the scope of the margin of appreciation by governments narrows when the expression involves freedom of the press and the topic contributes to discussions related to the public interest, such as in the present case. Although the article made derogatory remarks about Islam, the main issue in the article was the comparison of Eastern and Western values. Thus, the article must be analysed in the context of the role of religion in society, which is related to the public interest.
When considering the proportionality of the restriction, the Court referred to its own case law to determine that the content, context and intent of the speaker must be taken into consideration. Although some remarks about the Prophet Muhammad and Islam in the article might be seen as “capable of causing religious hatred” [para. 46], the Court stressed that national authorities must “carry out a comprehensive assessment of the impugned remarks, putting forward relevant and sufficient reasons for justifying the interference” [para. 46]. As the domestic court simply reiterated what the forensic report stated and accepted the report’s “legal characterization of the impugned remarks”, the Court held that the domestic court failed to make its own legal assessment, which was not acceptable. Additionally, it noted that the domestic court did not examine the article in the context of general discussion on the religion and there was nothing in the article that undermined core values or rights of the convention. Taken in the appropriate context and considering the intent of the author, the article aimed to discuss the “role of a religion in society and its role in the development of society” which is in the public interest. [para. 45] The Court held that “the domestic courts in their decisions did not even try to balance the applicants’ right to freedom of expression with the protection of the right of religious people not to be insulted on the grounds of their beliefs” [para. 48].
The Court considered the nature and severity of the interference, sentencing three and four years’ imprisonment to the applicants, respectively. Although the applicants were ultimately released, they spent more than thirteen months in detention. The Court observed that imposing criminal sanctions on expressing an opinion on the role of religion in society would have a chilling effect on the press, which plays a vital role in democratic society.
Having considered all factors, The Court held that the applicants’ criminal conviction was disproportionate and not necessary in a democratic society and found a violation of freedom of expression guaranteed under Art. 10 of the ECHR. Regarding pecuniary damages, the Court decided that as no documents substantiated the loss of earnings, compensation could not be granted to the applicants. Moreover, regarding non-pecuniary losses, the Court granted 12.000 Euro for each applicant as a mere finding of violation was insufficient for the damages incurred.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Ronan Ó Fathaigh and Dirk Voorhoof, in a blog for the Strasbourg Observers, note that the decision upholds important principles established in Paraskevopoulos v. Greece – namely, “that when considering incitement to hatred, national courts are required to assess (a) the context, (b) the author’s intention, and (c) the public interest of the matter discussed, in combination with other relevant elements.” The ruling further reinforces precedent that potential incitement may only be restricted “under the strict conditions of ‘relevant and sufficient reasons’ justifying a proportionate interference.”
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