Tulkens on the barricades of freedom of expression and information

The Strasbourg Observers are delighted to post this tribute to Judge Tulkens by Professor Dirk Voorhoof, Ghent University.

‘Au moment où les vents sont contraires, nous pensons que notre Cour doit plus que jamais renforcer la liberté d’expression qui, loin de constituer une protection ou un privilège, est un des éléments clés de la démocratie’

Dissenting opinion of Françoise Tulkens, with Dragoljub Popović and András Sajó, in the case Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal (Appl. no. 4035/08), Judgment of 11 January 2011, Second Chamber : Françoise Tulkens (Belgium), President, Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl Karakaş (Turkey) and Guido Raimondi (Italy).

In its judgment of 11 January 2011 the European Court of Human Rights held, by a majority, that there had been no violation of Article 10 (freedom of expression and information) of the European Convention on Human Rights. The case concerned the criminal conviction of two local politicians for defamation, for having, at a press conference, accused a doctor and political opponent of serious criminal offences. The majority of the Court considered the statements by the two politicians as clearly accusing their target of criminal conduct involving abuse of authority for personal gain. Because these allegations were extremely serious charges, they should have been supported by factual evidence. The Court found however, referring to the domestic proceedings, that any such convincing factual evidence was lacking. This was confirmed by the fact that the criminal proceedings brought by the applicants against their political opponent had been dropped. In addition, the defamatory allegations by the two politicians had not been spontaneous but, rather, carefully planned, in so far as they had been made at a press conference organised for that purpose. The majority of the Court also took into consideration that the allegations were expressed by two political opponents, not by journalists. Although they did concern a matter of general interest, namely the allegedly criminal conduct of a political figure, the applicant’s real intention had been solely to attack their political opponent. As to the EUR 1,800 fine paid by each applicant, the Court agreed that this sum was certainly not negligible, but in view of the circumstances of the case, it was not considered excessive or likely to have a chilling effect on freedom of expression. The Court found by four votes to three that there had been no violation of Article 10.

Tulkens, as the presiding judge of the second section of the Court that delivered the judgment, firmly dissented from this finding by the majority, together with Popović and Sajó. The dissenting opinion of Tulkens in this case is an excellent example illustrating her consistent and firm approach and concern in cases related to freedom of expression and information as a fundamental value in a democratic society.

Tulkens’ arguments in favour of freedom of expression and information

First, emphasis is put on the political nature of the debate and allegations at issue:

‘il s’agit en l’espèce de toute évidence d’un débat politique. Or, depuis longtemps et à plusieurs reprises, notre Cour a estimé qu’un politicien devait avoir un plus grand degré de tolérance qu’une personne privée à l’endroit de la critique et que, partant, la protection de sa réputation entraînait une moindre protection’.

In such a context there should not be too broad a protection of the reputation of public figures or politicians. Tulkens in her dissenting opinion with Popović and Sajó emphasises the ‘philosophy’ itself developed over the years in the case law of the ECtHR related to freedom of expression:

‘En mettant l’accent de manière aussi forte et exclusive sur la sauvegarde de la réputation, le présent arrêt contribue à affaiblir la philosophie même de la liberté d’expression et se situe en porte-à-faux par rapport à une jurisprudence solide de la Cour’.

Second, according to Tulkens and co. there is a sufficient factual basis for the allegations, as the two politicians ‘ont signalé qu’ils avaient déposé plainte auprès des autorités compétentes chargées de mener une enquête et de déterminer les éventuelles responsabilités. Le fait que cette plainte ait ultérieurement été classée sans suite par le ministère public n’est pas de nature à soutenir que les requérants étaient de mauvaise foi et, partant, à les priver de la liberté d’expression’. The reasoning of this dissent is fully in line with the Court’s case law holding that it is wrong to consider that allegations of corruption could only be substantiated with evidence of a court judgment. In the more recent Kasabova case the Court clarified that ‘while a final conviction in principle amounts to incontrovertible proof that a person has committed a criminal offence, to circumscribe in such a way the manner of proving allegations of criminal conduct in the context of a libel case is plainly unreasonable, even if account must be taken, as required by Article 6(2), of that person’s presumed innocence’ (ECtHR 19 April 2011, Kasabova v. Bulgaria).

Finally, this dissenting opinion illustrates how Tulkens is radically opposed to criminal prosecutions and criminal convictions in the context of defamation and freedom of expression. Referring to the PACE Resolution 1577(2007) Tulkens is of the opinion that the politician who had been accused allegedly without factual basis could have responded in the public forum, as a politician, ‘sans devoir nécessairement recourir à la voie pénale. Depuis quelques années, en effet, les organes politiques du Conseil de l’Europe ont invité les Etats membres à décriminaliser la diffamation et abolir les peines de prison en cette matière’.

It is interesting to note that Tulkens, with Popović and Sajó, at the end of their dissenting opinion point at a worrying trend, fundamental rights of the Convention being under attack. Tulkens expresses a kind of warning that ‘au moment où les vents sont contraires, nous pensons que notre Cour doit plus que jamais renforcer la liberté d’expression qui, loin de constituer une protection ou un privilège, est un des éléments clés de la démocratie’.

The Times They Are A-Changin?

The dissenting opinion in Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal contains a strong message by Tulkens and co., emphasizing that the finding of the majority in this case contributes to the weakening of the philosophy of freedom of expression itself, ending with a statement supporting the pro-active role of the European Court of Human Rights in this matter:

‘At a time when the winds are changing, it is the Court’s task, more than ever, to reinforce freedom of expression as a key element in democracy’.

One can find this approach and concern of judge Tulkens once again expressed in her last dissenting opinion in a Grand Chamber judgment in an Article 10 case, namely Mouvement raëlien suisse v. Switzerland (ECtHR Grand Chamber 13 July 2012). In a joint dissenting opinion (with Sajó, Lazarova Trajkovska, Bianku, Power-Forde, Vučinić and Yudkivska) Tulkens again firmly disagrees with the Court’s majority finding no violation of Article 10, this time in a case concerning a ban imposed by local authorities on a poster campaign of an association, or rather a sect, promoting unlawful activities on their website. While the majority of the Court found ‘that the national authorities did not overstep the broad margin of appreciation afforded to them in the present case’, and that ‘the reasons given to justify their decisions were “relevant and sufficient” and met a “pressing social need”, Tulkens argued on a number of grounds why the disputed ban of the poster campaign amounted to a violation of the right of freedom of expression. Essentially Tulkens explains why she cannot find any indication ‘that there was a clear and imminent danger which justified the impugned interference’.

Finally and most convincingly it is argued by Tulkens and co. that it ‘is certainly necessary to combat the dangers and excesses of sects and a State may have to ban associations that seriously contravene democratic values. However, it is difficult to accept that a lawful association, with a website that has not been prohibited, should be prevented from promoting its ideas through posters that are not unlawful in themselves. As to the argument whereby, in accepting a poster campaign in public space, the municipal authorities would be endorsing or tolerating the opinions at issue, we find this not only rather unrealistic in relation to the current role of such authorities, but also dangerous. That would be tantamount to arguing, a contrario,that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed. Article 10 of the Convention would then risk becoming inoperative’. Therefore Tulkens is not convinced that the ban of the poster campaign at issue is in accordance with Article 10, framing this finding again in the broader perspective of the philosophy of freedom of expression in a democratic society and the very strict necessity test:

‘The right to freedom of expression under Article 10 is an essential provision because it underpins the democracy that lies at the heart of the Convention. Any restriction of that freedom must be strictly justified by a pressing social need and narrowly circumscribed by relevant and sufficient reasons’.

Those who are advocating transparency, pluralism and diversity in public speech, open and robust debate on matters of interest for society do hope that the European Court of Human Rights in the future will continue to show a critical and restrictive approach towards restrictions on freedom of expression and information. Even when Judge Tulkens will not be acting anymore ‘as a public watchdog’ to point at the Court’s immense responsibility and impact regarding these matters…

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