March 19, 2018
By Ronan Ó Fathaigh and Dirk Voorhoof
The European Court’s Fourth Section has held, by four votes to three, that a protestor’s conviction, including a suspended three-year prison sentence, for frying eggs over the flame of a war memorial, did not violate the protestor’s freedom of expression. The judgment in Sinkova v. Ukraine prompted a notable dissent, which highlighted “inconsistency” with the Court’s prior case law, and a disregard for the principle that criminal penalties are likely to have a “chilling effect on satirical forms of expression relating to topical issues.”
Facts and domestic proceedings
The case concerns Anna Olegovna Sinkova, acting as a member of the artistic group St. Luke Brotherhood. In December 2010, Sinkova and three group members decided to protest “against wasteful use of natural gas by the State while turning a blind eye to poor living standards of veterans,” and staged an artistic performance at a war memorial in central Kyiv. The performance involved Sinkova frying eggs over the Eternal Flame at the Tomb of the Unknown Soldier. A member of the group also filmed the performance. Two police officers had approached the group and remarked that their behaviour was “inappropriate,” but they made no further interference.
Sinkova posted the video of her performance online as an act of protest, with the commentary that “precious natural gas has been being burned, pointlessly, at the Glory Memorial in Kyiv for fifty-three years now. This pleasure costs taxpayers about 300,000 hryvnias per month.” Following the video’s publication, a number of complaints were made to the police. In late March 2011, Sinkova was arrested, and charged with “desecration of the Tomb of the Unknown Soldier,” which is an offence under Article 297 of Ukraine’s Criminal Code. The District Court granted a request for Sinkova’s pre-trial detention, as she was accused of a “serious offence punishable by imprisonment of from three to five years.”
Following three months in pre-trial detention, Sinkova was convicted of the offence. The District Court held that Sinkova’s argument that her performance had not been meant to desecrate the tomb “had no impact on the legal classification of her actions,” and the “deliberate acts” showed “disrespect for the burial place of the Unknown Soldier.” The District Court imposed a three-year prison sentence, which was suspended for two years. The conviction was upheld on appeal, with the Kyiv City Court of Appeal rejecting Sinkova’s argument that there had been a violation of her right to freedom of expression, ruling that her conviction was “in accordance with the law and pursued a legitimate aim.”
Violation of Article 5 (right to liberty), no violation of Article 10
Sinkova subsequently made an application to the European Court, claiming her pre-trial detention had violated her right to liberty under Article 5, and her conviction had violated her right to freedom of expression. On Article 5, the Fourth Section unanimously found three separate violations concerning her pre-trial detention, including that the courts “had maintained her detention on grounds which cannot be regarded as sufficient,” and even finding her detention in June 2011 “was not covered by any judicial decision.” However, on Article 10, the Fourth Section, divided four votes to three, found that there had been no violation of Sinkova’s freedom of expression.
The majority judgment noted that the interference with Sinkova’s Article 10 right to freedom of expression was based on the sufficiently precise criminal code provision on “desecration;” and that the conviction pursued the legitimate aim of “protecting morals and the rights of others.” The main question was whether the conviction had been “necessary in a domestic society.”
The reasoning of the majority
The majority held that Sinkova was prosecuted and convicted “only” on account of frying eggs over the Eternal Flame. The majority pointed out that she had not been charged over the video, nor the content of the “rather sarcastic and provocative text” in the video. Thus, the applicant “was not convicted for expressing the views that she did,” but rather her conviction “was a narrow one in respect of particular conduct in a particular place,” (citing Maguire v. UK) and based on a “general prohibition of contempt for the Tomb of the Unknown Soldier forming part of ordinary criminal law.”
Second, while the majority admitted that the domestic courts “paid little attention to the applicant’s stated motives given their irrelevance for the legal classification of her actions,” it noted that the courts “did take into account the applicant’s individual circumstances in deciding on her sentence.”
Third, the majority rejected Sinkova’s argument that her conduct could not be reasonably interpreted as contemptuous towards those the memorial honoured, with the Court noting that “eternal flames are a long-standing tradition in many cultures and religions most often aimed at commemorating a person or event of national significance.” The majority held that there were many “suitable” opportunities for Sinkova to express her views, or participate in “genuine” protests, without breaking the criminal law, and without “insulting the memory of soldiers who perished and the feelings of veterans.”
Finally, the majority examined the “nature and severity of the penalty,” and noted the conclusion in Murat Vural v. Turkey, that “peaceful and non-violent forms of expression in principle should not be made subject to the threat of a custodial sentence.” However, the majority observed that in contrast to Murat Vural, where the applicant was imprisoned for over 13 years, Sinkova was “given a suspended sentence and did not serve a single day of it.” The majority thus held there had been no violation of Article 10.
Notably, three judges dissented, including Judge Ganna Yudkivska, the judge elected in respect of Ukraine. The dissent found a violation of Article 10, including the domestic courts’ failure to address the “purpose of the applicant’s performance,” and the disregard of the performance’s satirical nature. The dissent also referred to the established principle in the Court’s case law that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” Further, the dissent noted an “inconsistency” in the majority’s position and the Court’s prior case law that a suspended prison sentence is “likely to have a chilling effect on satirical forms of expression.” Given “the lack of adequate assessment by the national authorities of the applicant’s performance from the standpoint of Article 10 of the Convention,” and the “complete disregard of its satirical nature,” in addition to the “disproportionate nature of the sentence,” the dissenting judges found that Article 10 was violated in the present case.
It must be reiterated at the outset that the Fourth Section unanimously found three separate violations of Article 5 over Sinkova’s three-month detention before trial. However, this should not take away from the serious questions that arguably lie over the majority’s conclusion that the prosecution and conviction did not violate Article 10. The first point concerns the majority’s finding that Sinkova “was not convicted for expressing the views that she did,” nor for the “distribution by her of the respective video,” but was convicted “only” on account of frying eggs over the memorial flame. However, this idea of completely stripping the performance of all meaning and context does not seem consistent with the Court’s case law. On this point, and most curiously, the majority fails to apply, or even cite, the unanimous 2012 judgment in Tatár and Fáber v. Hungary, which is arguably directly relevant, and similarly concerned a “provocative performance.”
In Tatár and Fáber, two protestors had been prosecuted for a “regulatory offence” for hanging dirty laundry on the fence of the Hungarian parliament, as a protest “to hang out the nation’s dirty laundry.” Notably, the Court in Tatár and Fáber rejected the government’s argument that that the protestors had “not been” sanctioned for “expressing their political views,” but only for “failure to respect” a notification rule. The Court held that the performance was a form of “artistic and political expression.” Restrictions on such speech are subject to the Court’s highest scrutiny, and must be “convincingly established.” Similar to the protest in Sinkova, the Court in Tatár and Fáber found it crucial that the “political performance” in question was “intended to send a message through the media.” The Court unanimously found a violation of Article 10, concluding that even an administrative sanction, “however mild,” on the authors of such artistic and political expressions, can have “an undesirable chilling effect on public speech.”
It is difficult to see how the Sinkova majority’s findings square with Tatár and Fáber, given that the performance was similarly “artistic and political” expression, concerned a matter of public interest, with the performance filmed “to send a message” through online media. Rather than apply Tatár and Fáber (and other relevant judgments such as Murat Vural v. Turkey, Shvydka v. Ukraine, Navalnyy and Yashin v. Russia, Novikova and others v. Russia), the Sinkova majority curiously relied upon a single admissibility decision, namely Maguire v. UK, as its sole authority. However, it is quite difficult to see how the decision in Maguire is applicable, given that its fact are arguably so far removed from Sinkova, concerning an arrest for displaying the initials of a terrorist organisation on a jumper at a football match prone to “sectarian violence.” Crucially, the Court in Maguire accepted that the jumper was likely “to give rise to a substantial risk of violence,” and the purpose of the prosecution was the “prevention of disorder and crime.” In contrast, there was no risk of public disorder in Sinkova, the police officers had not considered it necessary to interfere with the protest beyond a “remark,” and the purpose of the prosecution had been the “protection of morals and the rights of others.”
The second major point relates to the majority’s finding that it was acceptable under Article 10 that the “the domestic courts paid little attention to the applicant’s stated motives given their irrelevance for the legal classification of her actions.” However, it is highly questionable that such disregard for Sinkova’s intention is consistent with the Court’s case law. Indeed, on several occasions when finding a violation of Article 10, the Court explicitly took into consideration the intention of the applicant, rather than the mere fact of the criminal offence (see e.g. Thorgeir Thorgeirson v. Iceland, Jersild v. Denmark, Morice v. France and Perinçek v. Switzerland). Thus, in Tatár and Fáber the Court took into account that the political performance “was intended to send a message.” The Court was even more explicit in Murat Vural v. Turkey, holding that “in light of its case-law,” assessment “must be made” of the “purpose or the intention of the person performing the act or carrying out the conduct in question.” Similarly, and most recently, in Stern Taulats and Roura Capellera v. Spain, concerning a prosecution for burning in public a photograph of the Spanish king and queen, the Court took into account the protestor’s “intention” not to incite violence. The Court found in particular that the setting fire to a photograph of the royal couple during a demonstration had been part of a political critique of the institution of monarchy in general, and in particular of the Kingdom of Spain. It also noted that it was one of those provocative “events” which were increasingly being “staged” to attract media attention, and which went no further than the use of a certain permissible degree of provocation in order to transmit a critical message in the framework of freedom of expression.
The third point concerns the majority’s holding that “there were many suitable opportunities for the applicant to express her views or participate in genuine protests,” without “breaking the criminal law,” and “insulting the memory of soldiers” and “feelings of veterans.” However, this approach arguably turns the logic of Article 10 upside down and reverses the burden of proof: it is not up to the individual to show that breaching the law was necessary, it is up to the State to justify that applying the criminal law was necessary in a democratic society. Considering that there were other means of expression available, is no valid argument to end Article 10 scrutiny. As a matter of fact, there are always other forms or channels available to express an opinion or formulate a criticism. No authority was offered for this limiting principle by the Sinkova majority, and arguably offends the Court’s seminal principle that Article 10 protects “not only the substance of the ideas and information expressed but also the form in which they were conveyed” (Murat Vural, para. 44). Indeed, in Women on Waves and Others v. Portugal the Court held that for “symbolic protests,” the “mode of dissemination” is of “such importance” that restrictions may “substantially affect the substance of the ideas and information in question.”
Further, the majority’s framing of the issue that Sinkova broke “the criminal law,” leads in a problematic way to the justification of the interference with her freedom of expression rights under Article 10. In Tatár and Fáber, the Court reiterated that the performance’s “classification in national law has only relative value and constitutes no more than a starting-point.” It is indeed up to the government to “convincingly establish” the necessity for interfering with freedom of expression, and not simply point to a law, with the scrutiny ending there. The Court needs to assess the legitimate aim behind the prosecution, which in Sinkova was “protection of morals,” and more particularly, protecting against “insulting the memory of soldiers” and “feelings of veterans.” However, it is highly questionable that the aim of protecting the memory of soldiers from insult, and the feelings of veterans, outweighs Sinkova’s freedom of expression, given that it (a) was a “political and artistic performance,” subject to the highest protection of Article 10, (b) concerned a matter of public interest (“wasteful use of natural gas” and “poor living standards of veterans”), (c) did not involve violence, and (d) had no intention to insult or hurt. On this latter point, the Grand Chamber in Perinçek v. Switzerland, concerning insult to the memory of Armenians, held that the applicant “did not express contempt or hatred for the victims,” and did not “use abusive terms.” In other cases (Alekseyev v. Russia and Sergey Kuznetsov v. Russia) the Court found that any measures interfering with the freedom of assembly and expression “other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words may appear to the authorities – do a disservice to democracy and often even endanger it”.
The fourth point concerns the majority distinguishing the principle from Murat Vural that “peaceful and non-violent forms of expression in principle should not be made subject to the threat of a custodial sentence,” because the applicant in Sinkova was only given a suspended sentence and “did not serve a single day of it.” However, Murat Vural was only applying an earlier principle, which had been established in two earlier cases of Pekaslan and Others v. Turkey, and Yılmaz Yıldız and Others v. Turkey, where it was held that a peaceful demonstration should not, in principle, be made subject to the threat of a “penal sanction.”
Notably, in Pekaslan the protestors were prosecuted, and “subsequently acquitted,” (para. 81) while in Yılmaz Yıldız the protestors only received “administrative fines” (para. 46). Moreover, in Akgöl and Göl v. Turkey, the Court found that a suspended 15-month prison sentence violated Article 10, as a peaceful demonstration should not, in principle, be made subject to the threat of a “penal sanction” (para. 43). Thus, on the basis of Pekaslan, Yılmaz Yıldız, and Akgöl and Göl, it is difficult to see how the suspended three-year prison sentence in Sinkova is consistent with Article 10. Finally, the majority seems to completely neglect the fact the Sinkova spent three month in pre-trial detention, and in Taranenko v. Russia, the Court, in considering a suspended three-year prison sentence, also took into account the “period of detention pending trial” in finding a violation of Article 10. The emphasis by the majority that Sinkova “did not serve a single day” of the suspended prison sentence, completely disregards the fact that she spent effectively three months in prison.
A case for the Grand Chamber?
The Sinkova judgment raises a set of serious questions affecting the interpretation and application of the Convention. It also touches upon a serious issue of general importance, justifying a referral to the Grand Chamber (Article 43 ECHR). It is worth remembering that in 2003, something very similar to the Sinkova judgment happened: a divided Second Section, by four votes to three, in Cumpănă and Mazăre v. Romania held that seven-month prison sentences imposed on two journalists did not violate Article 10, as “they did not serve their custodial sentences.” However, in an unanimous judgment, the 17-judge Grand Chamber of the Court set aside the Chamber judgment, and held in no uncertain terms, that a prison sentence, “by its very nature, will inevitably have a chilling effect,” on freedom of expression, and crucially, “the fact that the applicants did not serve their prison sentence does not alter that conclusion.” One could imagine that, after a successful request for referral, the Grand Chamber will similarly step into the fold in Sinkova, and set aside the Fourth Section’s judgment. We share the concern expressed in the dissent that the judgment in Sinkova v. Ukraine holds a “real risk of eroding the right of individuals to voice their opinions and protest through peaceful, albeit controversial, means.”