OAS » IACHR » Special Rapporteurship for Freedom of Expression » 4 - Chapter III - Jurisprudence

Freedom of Expression

4 - Chapter III - Jurisprudence

A.         Summary of the jurisprudence of the European Court of Human Rights on freedom of expression[1]

 

1.                  Introduction

 

1.         The following sections summarize the jurisprudence on freedom of expression of the European Court of Human Rights. The inclusion of these sections in this chapter responds to an attempt by the Special Rapporteur for Freedom of Expression to encourage comparative case law studies in compliance with the mandate of the Heads of State and Government conferred at the Third Summit of the Americas held in Quebec, Canada, in April 2001.  During the Summit, the Heads of State and Government ratified the mandate of the Special Rapporteur for Freedom of Expression, and further held that the States “will support the work of the Inter-American System of Human Rights in the area of freedom of expression, through the Special Rapporteur for Freedom of Expression of the IACHR, will proceed to disseminate comparative case law studies, and will further endeavor to ensure that national laws on freedom of expression are consistent with international legal obligations.”

 

2.         The Special Rapporteur for Freedom of Expression regards the European Court's extensive jurisprudence on the right to freedom of expression as a valuable source that can shed light on the interpretation of this right in the Inter-American system, and serve as a useful tool for legal practitioners and interested people.

 

3.         In its 2002 Report on Terrorism and Human Rights, the Inter-American Commission on Human Rights recognized the value of the European Jurisprudence as a useful tool for the interpretation of the right to freedom of expression as guaranteed by the inter-American system.  Specifically, when dealing with the issue of emergency situations that might constitute exceptions to the ban on prior censorship guaranteed by Article 13.2 of the American Convention, the Commission referred to the jurisprudence of the European Human Rights System in order to demonstrate the high level of scrutiny that any prior censorship must be given.  In this regard, the Commission pointed out that "The case law of the European Human Rights system can serve as a relevant indicator of the application of the issue of prior censorship at the regional level, in particular considering its considerable number of cases dealing with freedom of expression.  Notwithstanding the fact that the European Human Rights System does not recognize the same absolute ban on prior censorship as in the Inter-American system, its institutions have also been reluctant to allow prior restraints on dissemination of expression (…)".[2]

 

4.         The European Convention for the Protection of Human Rights and Fundamental Freedoms was opened up for signature in November 1950 and entered into force in September 1953.  The Convention lay down a list of civil and political rights and freedoms, and established an institutional architecture for the enforcement of the rights set out in the Universal Declaration, made up of the European Commission of Human Rights, the Committee of Ministers of the Council of Europe and the European Court of Human Rights.  In 1998, as a result of an increasing workload for the Court, Protocol 11 to the Convention came into force, changing the manner in which the judicial function was performed by the Court.  Under the former system, the main stage in the examination of a complaint was carried out by the European Commission of Human Rights, which ceased to exist in October 1999.  Under the reformed system, the existing Court and Commission were replaced by a single full-time Court.  However, the great number of applications attracted by the new system has led the Ministers to evaluate the possibility of further reforms.  In 1999, the President of the new Court noted that:

 

The continuing steep increase in the number of applications to the Court is putting even the new system under pressure.  Today we are faced with nearly 10,000 registered applications and more than 47,000 provisional files, as well as around 700 letters and more than 200 overseas telephone calls a day.  The volume of work is already daunting but is set to become more challenging still…[3]

 

5.         Both the American and European Conventions have a specific provision regarding the right to freedom of expression, delineated in Articles 13 and 10, respectively.  However, the form in which the articles are drafted differs greatly: while Article 13 of the American Convention contains a specific list of exceptions to the general principle established in the first paragraph of the Article, its counterpart in the European Convention is formulated in very general terms.  Also, the articles have a very different reach, evident in the establishment in Article 13 of the American Convention of a virtually complete ban on prior censorship, absent in Article 10 of the European document.  The Inter-American Court of Human Rights has compared Article 10 of the European Convention with Article 13 of the American Convention and Article 19 of the International Covenant on Civil and Political Rights, concluding that "A comparison of Article 13 with the relevant provisions of the European Convention (Article 10) and the Covenant (Article 19) indicates clearly that the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas".[4] 

6.         The higher regard in which the American Convention holds the right to freedom of expression in relation to the European Convention makes it imperative that the rules derived from the jurisprudence of the European Court be understood as minimum standards required by the right to freedom of expression, but never as a limitation on the enjoyment of greater protection of freedom of expression.  This approach is consistent with the view adopted by the Inter-American Court of Human Rights on the simultaneous applicability of international treaties.  In this regard, the Court affirmed, following the rule of interpretation set out in Subparagraph (b) of Article 29 of the American Convention[5], that " (…) if in the same situation both the American Convention and another international treaty are applicable, the rule most favorable to the individual must prevail. Considering that the Convention itself establishes that its provisions should not have a restrictive effect on the enjoyment of the rights guaranteed in other international instruments, it makes even less sense to invoke restrictions contained in those other international instruments, but which are not found in the Convention, to limit the exercise of the rights and freedoms that the latter recognizes." [6]

 

2.                  Cases under the European Convention for the Protection of Human Rights and Fundamental Freedoms

 

7.         Section 1 of Article 10 of the European Convention provides for the right to freedom of expression in the following way:

 

Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

 

8.         Section 2 of Article 10 states that:

 

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

9.         The following section refers to cases decided by the European Court of Human Rights on subjects related to the right to freedom of expression. The selection of these subjects responds to the importance of their proper understanding in tackling the difficulties faced by the countries in the Americas at the current stage of development of the right to freedom of expression. 

10.       The subjects treated in this section are divided under the following titles: Public Order; Prior Censorship; and Defamation.  The cases under the title of Public Order refer to situations in which the questioned restrictions are imposed on the grounds that they are necessary for the protection of public order.  The cases under the title Prior Censorship portray situations in which there has been a prior restraint on a publication on the basis of the achievement of a legitimate aim.  The cases under the title of Defamation refer to situations in which legal proceedings for defamation were brought against the complainants for allegedly damaging the reputation of another person or persons through the exercise of the right to freedom of expression.

 

11.       The cases portrayed are only a few of the cases available on the subjects treated in the extensive jurisprudence of the European Court.  The cases below have been selected to illustrate the Court's interpretation of the right to freedom of expression as set out by Article 10 of the European Convention.  In these cases, the Court analyzes whether there has been a violation of the right to freedom of expression by evaluating whether the restrictions imposed come within the ambit of Article 10.  The complete text of these cases can be viewed through the European Court's website.[7] 

 

a)                  Public Order

 

12.       Section 2 of Article 10 of the European Convention establishes that the rights provided for in paragraph 1 may be subject to "such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, . . . for the prevention of disorder or crime[.]"  In the cases below, the European Court of Human Rights analyzes the concept of public order, and studies whether the restrictions imposed are justified on these grounds, pursuant to the Article's provision.

 

i)          Engel and Others v. The Netherlands

 

13.       The European Court of Human Rights addressed the issue of public order in the 1976 case of Engel and Others v. The Netherlands.[8]  In this case, two of the applicants, conscripts in the Netherlands Army and editors of a journal aimed at conscripts, published an article which alleged unlawful behavior on the part of several military commanders, suggesting that the commanders used intimidation techniques to suppress dissent and that conscripts had been unfairly punished.  The commanding officer of the barracks deemed that this article and other articles in the same publication that discussed a demonstration of the conscripts’ union against the government tended to undermine military discipline. Following a hearing, the applicants were committed to several months’ service in a disciplinary unit.

 

14.       In evaluating the legality of the restriction, the European Courtunderstood that the interference met this condition to the extent that its purpose was the prevention of disorder within the armed forces.  The Court analyzed the concept of “public order”, stating that the term covered a range of situations:

 

The concept of ‘order’ refers not only to public order or ‘ordre public’ … [I]t also covers the order that must prevail within the confines of a specific special group. This is so, for example, when, as in the case of armed forces, disorder in that group can have repercussions on order in society as a whole.[9]

 

15.       In analyzing the question of whether the restriction imposed was "necessary in a democratic society", the Court esteemed that the applicants contributed to the publication and distribution of a writing that was inflammatory in nature. In these circumstances the Supreme Military Court was justified in holding that the applicants had attempted to undermine military discipline and that the imposition of a penalty was necessary.  Therefore, the applicants had not been deprived of their right to freedom of expression; they had merely been punished for the abusive exercise of that right.  Because the punishment was prescribed by law, necessary in a democratic society, and pursued the legitimate aim of the prevention of disorder, the Court held that the State did not violate Article 10.

 

ii)         Chorherr v. Austria

 

16.       A similar solution was arrived at in the 1993 case of Chorherr v. Austria.[10]  In this case, the European Court held that there was an interference by a public authority with the applicant’s right to freedom of expression, which was prescribed by law and pursued a legitimate aim, namely the prevention of disorder.  The applicant and his friend were detained for refusing to stop distributing leaflets calling for a referendum on the purchase of fighter aircraft by the Austrian Armed Forces.  Their demonstration had caused a commotion at a military ceremony to mark the thirtieth anniversary of Austrian neutrality.  The two friends were informed by a police officer that they were disturbing public order and instructed to cease their "demonstration."  They refused to comply, citing their right to freedom of expression.  Despite further warnings, the applicant and his friend continued to pass out leaflets. They were arrested and held for three-and-a-half hours.

 

17.       The Court held with regard to the necessity of the interference, that Contracting States hold a certain margin of appreciation in assessing whether and to what extent an interference may be “necessary” for the purposes of Article 10(2).  The Court stated that this margin extends to the choice of the reasonable and appropriate means to be used by the authorities to ensure that lawful manifestations can take place peacefully.  Here, the Court noted that the nature, importance and scale of the parade could appear to the police to justify strengthening the forces deployed. Further, the applicant, in choosing this event, must have realized that it might lead to a disturbance requiring measures of restraint, which the Court did not find excessive.  Finally, when the Austrian Constitutional Court approved these measures it expressly said such measures had been intended to prevent breaches of the peace and not to frustrate the expression of opinion.  The Court said there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued and accordingly there was no violation of Article 10.

 

iii)         Piermont v. France

 

18.       The European Court found that a violation of Article 10 of the European Convention had been committed in the 1995 case of Piermont v. France.[11]  In this case, the applicant, a German pacifist, environmentalist, and Member of the European Parliament, visited French Polynesia during an election campaign preceding the territorial assembly and parliamentary elections.  The applicant was served with an expulsion and exclusion order from the territory after she had taken part in a demonstration during which she denounced the continuation of nuclear testing and the French presence in the Pacific.  The applicant flew to New Caledonia, which was also in the throes of an election campaign. Upon arrival, she was excluded from the territory due to the likelihood that her presence during election time would cause public disorder.

 

19.       The European Court assessed that both in French Polynesia and in New Caledonia there had been an interference with the right to freedom of expression.  In addressing the legitimacy of the interference in French Polynesia, the Court concluded that the restriction was prescribed by law, and pursued the legitimate aims of the prevention of disorder and the preservation of territorial integrity. The Court did not, however, consider that the interference was necessary in a democratic society.  The Court emphasized that the applicant's speech, which in no way promoted violence, occurred during a peaceful, authorized demonstration. The Court concluded that a fair balance was not reached between the public interest in preventing disorder and preserving territorial integrity, on the one hand, and the applicant's right to freedom of expression, on the other.  In addressing the legitimacy of the interference in New Caledonia, the Court stated that the exclusion order amounted to an interference, since the applicant had not been able to come into contact with the politicians who had invited her or to express her ideas on the spot.  The interference was prescribed by law; the High Commissioner was entitled to use his general police powers to ban the applicant on grounds of public safety. However, regarding the necessity of the interference, the Court stated that even if the political atmosphere was tense and the applicant’s arrival led to a limited demonstration of hostility, there was no substantial difference in her position vis-à-vis the two territories.

 

            iv)        Incal v. Turkey

 

20.       A violation of Article 10 of the European Convention was also found in the 1998 case of Incal v. Turkey.[12]  The applicant was a member of the executive committee of the People’s Labour Party.  The committee asked for official permission for the distribution of a leaflet calling for the establishment of neighborhood committees to oppose the official policy to drive out Kurds from the city of Izmir.  As a result, an injunction was obtained ordering the seizure of all copies of the leaflet, on the basis that they contained separatist propaganda capable of inciting people to resist the Government and commit crimes. Criminal proceedings were instituted against the applicant and other members of the committee. The applicant was found guilty of attempting to incite hatred or hostility through racist words and was sentenced to six months and twenty days’ imprisonment.  As a result of his conviction, he was debarred from the civil service and forbidden from taking part in a number of activities within political organizations, associations or trade unions.

 

21.       The European Court held that there was an interference by a public authority with the applicant’s right to freedom of expression; it was prescribed by law, and pursued a legitimate aim, namely the prevention of disorder.  Regarding the issue of "necessity," the Court assessed that none of the appeals raised by the leaflets amounted to incitement to violence, hostility or hatred between citizens.  The Court further expressed that the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician, and that the actions or omissions of the Government must be subject to the close scrutiny of public opinion in a democracy.  Therefore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.  The Court noted that in spite of this, it does remain open for competent state authorities to adopt measures, even of a criminal–law nature, intended to react appropriately to such remarks.  The Court noted the radical nature of the interference.  Even taking the background of terrorism into account, there was nothing that could warrant the conclusion that the applicant was responsible for the problems of terrorism in Turkey or Izmir.  The Court concluded that the applicant’s conviction was disproportionate to the aim pursued and therefore unnecessary.

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