August 09, 2022
By Natalie Alkiviadou
In May this year, the Fourth Section of the European Court of Human Rights (ECtHR) held unanimously that holding a lawyer in contempt of court for a ‘caustic’ and ‘sarcastic’ comments amounted to a violation of his Article 10 of the European Convention on Human Rights (ECHR) right to freedom of expression.
In the recent case of Simić v. Bosnia and Herzegovina, the applicant, a lawyer, was representing an individual during civil court proceedings. During the appeal at the third instance court, he made a joke about the second-instance court, likening it (and specifically its treatment towards him) to a professor who expected his students to provide names (and not only the number) of the victims of Hiroshima bombings. The third-instance court fined the applicant the equivalent of 510 Euros considering his joke/comments as insulting. Bosnia and Herzegovina’s Constitutional Court upheld this decision. Interestingly, in doing so, it relied on the ECtHR’s case of Žugić v. Croatia (2011) which did not involve contempt of court because of comments/remarks/jokes but contempt of court due to the absence of the defendant due to car trouble. Simić paid the fine in 2018. He made an appeal to the ECtHR, which found the fine for contempt was not ‘necessary in a democratic society’.
The central question for the ECtHR was whether the punishment for contempt of court was ‘necessary in a democratic society’ within the meaning Article 10 ECHR. To assess this necessity the Court looked at the case in its entirety, the context of the remarks and whether Article 10 tests and standards were applied on a national level. In terms of context, the ECtHR noted that although it was significant for lawyers to behave discretely, honestly and in a dignified manner, the comments were made in the ambit of judicial proceedings during which the applicant’s role was to ‘vigorously defend’ his client’s rights. It added that for public confidence to exist in the court system, lawyers must be able to provide effective representation. The ECtHR also highlighted that the comments were not made in public (for example in the media) but, rather, during an appeal process before a national court. It found that, on a national level, the courts did not place sufficient emphasis on this fact. Moreover, looking at the applicant’s comments themselves and relying on Morice v. France (2015) which involved a public defamation of a judge, it found that the tone of the remarks were ‘caustic, or even sarcastic’, but that such characteristics were compatible with Article 10. A committee of three judges at the ECtHR thus found that the applicant’s freedom of expression has been violated. Bosnia and Herzegovina was ordered to pay €510 to the applicant in respect of pecuniary damage, €4,500 in respect of non-pecuniary damage and €2,550 in respect of costs and expenses.
The freedom of expression is ‘the great bulwark of liberty’ and a ‘cornerstone upon which the very existence of a democratic society rests’. Since 1976 and with Handyside v. The United Kingdom, the ECtHR has underlined that the freedom of expression does not just extend to ideas that are ‘favourably received’, but also to those which ‘shock, offend and disturb’ because ‘such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society’. The importance of free speech having a broad range has also been recognised at the United Nations level. Specifically, General Comment 34 of the United Nations Human Rights Committee states that ‘freedom of opinion and freedom of expression are indispensable conditions for the full development of the person’ and such speech includes ‘deeply offensive speech’.
The ECtHR recognised that the tone of the applicant’s remarks had been caustic and sarcastic and despite such characterisations, they were still within the protection of Article 10.
Humour has, for time immemorial, been a popular tool for expressing and disseminating opinions. Terms such as humour, sarcasm and satire, are largely left undefined by courts. Satire is left undefined by the ECtHR, although in Vereinigung Bildender Künstler v. Austria (2007) it noted that such expression entails, amongst others, an exaggeration and distortion of reality. In Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others (2014), the Court of Justice of the European Union held that the concept of ‘parody’ which is provided for by a European Directive on copyright, is an ‘autonomous concept of EU law’. It underlined that the meaning of parody should be its usual meaning in ‘everyday language’, with its objective being ‘to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’. In an intervention to the ECtHR, the non-governmental organisation ARTICLE 19 underlined that ‘freedom of expression, including the freedom to joke is a bedrock of a democratic society’ (written submission of ARTICLE 19 to the ECtHR in ZB v. France (2021)).
The ECtHR has recognised the right to hyperbolic and provocative language and speech as a central part of political speech, noting that polemical, sarcastic and satirical language is permitted. In Vereinigung Bildender Künstler v. Austria (2007), the applicant (an association of artists) held an exhibition which included the satirical painting ‘Apocalypse’ which featured members of the Austrian Freedom Party as well as Mother Teresa and an Austrian cardinal engaging in graphic sexual acts. One of the politicians who appeared in the painting filed a lawsuit against the association who held the exhibition. The applicant was fined and banned from displaying this painting. The ECtHR found a violation of Article 10 and emphasised that:
‘satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care.’ (para. 33)
The ECtHR followed this reasoning in Alves Da Silva v. Portugal (2009). Here, the applicant had been convicted and given a fine for driving around the city during carnival with a puppet representing the mayor of Mortágua, with symbols of corruption on the puppet and for playing a recording of a satirical message which suggested that the mayor had received illegal sums of money. The ECtHR found that Article 10 had been violated and that the applicant’s actions were clearly satirical and, thus, a form of artistic expression and social commentary. The Court followed a similar route in EON v. France (2013). This case involved the applicant waving a small placard reading “Get lost, you sad prick” as the President’s party was about to pass by. He made an allusion to a phrase which the President had used when a farmer refused to shake his hand during an event earlier in the year. The applicant received a suspended fine of 30 Euros. In finding a violation of Article 10, the Court highlighted that satire is a form of artistic expression and social commentary which aims to provoke and agitate. It noted that ‘by adopting an abrupt phrase that had been used by the President himself and had attracted extensive media coverage and widespread public comment, much of it humorous in tone, the applicant chose to express his criticism through the medium of irreverent satire’. It proceeded to find that criminal penalties for conduct such as that of the applicant would have a ‘chilling effect on satirical forms of expression related to topical issues’.
Thus, even within the public sphere and particularly vis-à-vis politicians, the ECtHR has been protective of free speech. This makes me wonder about the statement made by the court vis-à-vis the context of the impugned speech, namely that it been made in private (rather than in public) and the impact this differentiation would make. It compared the case under analysis with that of Morice v. France, noting that the former involved comments made in the court room and thus the general public were not aware of them, whereas the latter (criticisms of a judge) where made in public, specifically to the media. On this premise, it found that the domestic courts had not given sufficient weight to the context in which the comments were made. In essence though, would the private nature of the comments really have changed much if we base our view on previous cases of the ECtHR involving, inter alia, sarcasm? The puppet in the city, the verbal expression against the President during his visit or the Austrian artwork were all public, yet the ECtHR still found in favour of the applicants. Indeed, one may argue that the speech protective cases, although public, involved politicians rather than judicial institutions. One could counter-argue that public confidence in politicians can only arise if they receive public scrutiny (as is the case with courts whose public confidence can exist if lawyers can litigate freely).
In sum, we do not all share the same understanding of what could be sarcastic or caustic. What the Court did in this case was overcome such obstacles (including the lack of rigid definitions on such themes) but integrating the notion of context (both in terms of the comments’ context but also in terms of the court context as a private space). This was significant in that the Court managed to substantiate its argumentation beyond generic or abstract conceptualisation of the issue of sarcasm. Although a short judgment, this patter should and could be followed in other cases where the ECtHR has been less lenient in terms of the importance of free speech and has either ousted legal analysis on Article 17 (non-destruction clause) or has found no violation of Article 10 in cases involving the abstract, undefined notion of ‘hate speech’.
In brief, a short yet succinct analysis of why Bosnia and Herzegovina were in violation of Article 10, an ode to the significance to the role of lawyers and their speech for just judicial proceedings and public confidence thereto as well as an indirect hint that despite the Court noting that the private context (in a court room) affected the remarks and their impact, the same Court has decided in favour of applicants who were silenced due to their jokes/sarcasm/satire of political institutions.