February 28, 2023
by Jacob van de Kerkhof
On 15 December 2022, the European Court of Human Rights rendered its judgment in Peradze et al v Georgia, concerning 7 protestors who were arrested at a demonstration against a construction project for holding banners with lewd language (along the lines of ‘[construction project], my cock’). The applicants received a minor administrative sanction, which was upheld in appeal. They argued that interfering with their protest because of lewd language violated their right to peaceful assembly in conjunction with their right to freedom of expression. The Court had to decide whether the Georgian national authorities made the right balancing act in protecting public morals and ensuring the right to peaceful assembly ex Article 11 ECHR read in conjunction with the freedom of expression ex Article 10 ECHR. Even though this case does not constitute a revolutionary new precedent, it does confirm standing case law and the balancing of interests that national authorities need to make when addressing lewd speech in demonstrations.
Since 2014, the Georgian capital of Tbilisi is home to a large construction project on Sololaki Hill, ‘Panorama Tbilisi’. The construction process of this vast multifunctional complex encountered vast resistance from architects and environmental activists alike, because of the irreparable damage it allegedly causes to Tbilisi’s Old Town landscape. In 2015, Tbilisi hosted the European Youth Summer Olympic Festival (EYOF), during which the Olympic Flame was stationed outside of Tbilisi city hall. During the EYOF, protestors gathered in front of the Tbilisi City Hall to protest the construction of Panorama Tbilisi. The seven applicants in this case were among these protestors. The first applicant, Ms Peradze, was instructed by the police to remain within the boundaries of peaceful and regular conduct. The second applicant, Mr Makarashvili, stood holding a banner likening Panorama Tbilisi to a penis, using Georgian colloquial language (‘პანორამაარა,ყლე!’). After standing at the protest for 50 minutes, he was removed by the police and arrested under Article 166 of the Code of Administrative Offences (CAO), holding that disorderly conduct such as swearing and cursing in public places, harassing people and disturbing public order can be fined or punished with up to fifteen days of detention. After his arrest, the six other applicants created banners with the same slogan and started flaunting these in front of the police, upon which they were also arrested under Article 166 CAO. One of the protestors was also charged under Article 173 CAO for disobeying police orders. Before the Tblisi City Court, the arresting police officers noted their concern for the applicants conduct, especially the lewd nature of the banner and the presence of children – it was the European Youth Olympic Festival, after all. They also argued that the applicants had been chanting the slogan. Applicants relied on exercising their rights to freedom of expression and freedom of peaceful assembly under Article 10 and 11 of the European Convention on Human Rights (ECHR), which had been interfered with by the police officers’ actions. They further denied shouting at the police officers.
The Tbilisi City Court found the applicants guilty of disorderly conduct. They acknowledged the protestors exercise of their rights under Article 10 and 11 of the Convention, but argued that those could be limited within a proportionate manner in pursuit of a legitimate aim if that limitation is necessary in a democratic society. The applicant’s situation of swearing in public directly fell under Article 166 CAO, and interference with their protest was in pursuit of public order and public morals. The City Court found that the use of pejorative language constituted ‘sheer indecency, void of any political, cultural, educational or scientific value’. Under the Georgian Freedom of Expression Act section 9(1), indecency cannot contribute to the public debate in a civilized manner, and limiting such expressions is not a major limitation to the applicant’s right to freedom of expression. Because the pejorative language used by applicants is a particularly offensive insult in Georgian society, the expression could not convey any particular opinion and contribute to the public debate. Limiting that expression to preserve public order within the meaning of Article 166 was necessary in a democratic society to protect public morals, in particular that of the children standing close to the demonstration. In appeal, the appellate court upheld the lower court’s decision, and held that swearing was indeed covered by Article 166 CAO and that the lower court had made a thorough balancing act. Next to that, the protest as a whole was not disrupted by the police’s interference.
The issue at hand was whether the applicant’s arrest during the protest amounted to a violation of their right to freedom of expression under Article 10 ECHR and right to peaceful assembly under Article 11 ECHR. Despite Georgia’s admissibility challenge, the Court found that domestic remedies have been exhausted to a sufficient extent, especially in light of the practical reality for the applicant (Adamski v Poland): when an applicant has used an effective and sufficient remedy, they cannot be expected to try others that are no more likely to be successful.
The applicants complained that the interference of their rights under Article 10 and 11 of the Convention was not prescribed by law, since the City Court’s interpretation of Article 166 CAO was too broad and not foreseeable. They further argued that the interference did not have a legitimate aim nor was it necessary in a democratic society, because, whilst the slang uttered during the protest was offensive, limiting a contribution to the public debate to uphold an abstract notion of public morals was disproportional to their interest of contributing to the public debate. Georgia objected to their complaints, arguing that the interference was prescribed by Article 166 CAO, and the necessity in democratic society was safeguarded by the proceedings before the domestic courts, the tolerance of the display of slang at the protest before the police interfered, the position of national authorities to assess the peculiarities of public morals in Georgian society and the lenient nature of applicants’ sentencing.
In the context of Article 11, the Court had to assess whether the interference pursued a legitimate aim answering a pressing social need, and whether that interference is proportionate to the aim and justified with relevant and sufficient reasons. It had to decide whether these standards are applied by the national authorities. In that light, contracting states enjoy a wide discretion: demonstrations can disrupt ordinary life but national authorities enjoy a wide discretion when it comes to the degree of tolerance to that disruption. National authorities need to make an assessment on their permissibility on a case-by-case basis (Kudrevicius et al v Lithuania). In the context of Article 10, the Court reiterates that freedom of expression extends to offensive, shocking and disturbing content as well (Handyside v United Kingdom). There is especially little scope for limitation of freedom of expression in cases of political speech or questions of public interest (Bumbes v Romania). The form of that expression does matter: offensive language is not necessarily protected by the freedom of expression, when its sole intention is to insult particular individuals or institutions (Skalka v Poland); conversely, if vulgar language is used as a stylistic feature to convey a political message, it is protected (Uj v Hungary).
The Court found that the applicants could have foreseen that the interference was prescribed by law – their conduct could entail liability under Article 166 CAO. The Court further found that the interference pursued a legitimate aim. However, the interference was not necessary in a democratic society; because the building project was a topic of public interest, the scope for interference was limited (Bumbes). The Court considered that even though national authorities have discretion, it can assess whether the authorities have duly considered the extent of the ‘disruption to ordinary life’ in relation to the applicants’ protest. Because the applicants were calmly holding signs, the disruption to ordinary life of the demonstration was limited to the sheer indecency of the texts on the applicants’ banners. The indecency of that language is best tested by the national court, who is better acquainted with the linguistic features of the Georgian language. However, sheer indecency does not exclude an expression from protection; if it is used for stylistic purposes it may still not be limited. In this case, the Court found that the indecency of the language was incorrectly dissociated from its context and apparent goal. The obscene language was used by applicants as a stylistic tool to express disapproval with the construction project. The Court reiterated a number of cases in which vulgar and offensive language was protected under Article 10 (Vereinigung Bildender Künstler v. Austria; Mătăsaru v. the Republic of Moldova; and Patrício Monteiro Telo de Abreu v. Portugal), as long as it served a stylistic purpose contributing to a debate on topics of public interest. The interference with applicant’s freedom under Article 11 – in the context of Article 10 – was disproportional, because removal from protest may have a chilling effect on freedom of expression in further protests. The national court has failed to assess the abovementioned aspects of applicants’ protest. As such, the Court found that there has been a violation of Article 11 of the Convention, read in light of Article 10.
In Peradze et al v Georgia, the Court decided on a case combining Article 11 on the right to peaceful assembly and Article 10 on the right to freedom of expression. Noteworthy about this case is that the right to freedom of expression informs the framework in determining whether the right to freedom of assembly was interfered with. In that context, the Court did not depart from standing caselaw, and relied predominantly on existing standards. Regardless, the Court clarified how the right to freedom of expression may inform the framework for testing interference with the right to freedom of assembly, and set out the criteria that national authorities need to take into account.
The Court determined whether lewd language used in this case was protected under the freedom of expression, and if not, whether it caused a disruption to public life in a way that a normal exercise of the right to peaceful assembly would not. That assessment can be particularly sensitive because it requires the Court to decide whether a national court made a correct assessment of the lewd nature of the applicant’s banners in its own language (in casu Georgian). The Court mentioned this sensitivity in para 44. A further sensitivity lies in assessing whether the lewdness of the language would cause a disruption of public life, in which case the Court too acknowledged the wide discretion of the national authorities in that regard in para 42.
The Court therefore did not address the lewdness of the statement on the banners (პანორამაარა,ყლე), but addressed whether the national court has made a proper impact assessment of the lewdness and the disturbance to public life. It addressed two points to that end. Firstly, the Court found that the national court did not assess the degree to which applicants’ protest disturbed public life. The limitation of the protest was part of the national authorities’ discretion, but that discretion does need to account for the proportionality of a limitation of the right to peaceful assembly. Indeed, even if the applicants were in violation of Article 166 CAO by using vulgar language on their banners, their actions still would need to be assessed from a proportionality standpoint. In this case, limiting the applicants’ protest was not proportional to the disturbance that they caused to public life by quietly holding their banners. Secondly, the Court confirmed that vulgarity is not necessarily excluded from protection under Article 10. InSkalka, the Court found that offensive language is excluded from protection if its sole intention is to insult. Further, if the banners were devoid of any political message, it is plausible that sanctioning applicants under Article 166 CAO together with Article 9(1) of the Georgian Free Speech Act was not an interference with their freedom of expression. However, in Vereinigung Bildender Künstler v Austria and other case law cited in para 45, vulgar language is not excluded from protection under Article 10 if it contributes to the public debate. In casu vulgar language was used as a stylistic feature (see Uj v Hungary) to express public dismay – and not to insult an individual or institution in particular (cf. Skalka). This in itself is not a sufficient reason to restrict speech in a public protest.
As such, the Court did not tread too much in the discretion of national authorities; it also did not close the door on national authorities seeking to interfere in protests to protect public morals in cases of vulgar language. However, when doing so, the national authorities need to account for (i) proportionality, being the degree of disturbance with public life caused by the protest and its vulgar language justifying interference with the protestors’ rights. In this case peacefully holding signs without being aggressive did not amount to a disturbance that was different from any other peaceful assembly. And (ii) the nature of the vulgar language used. Lewdness may be excluded from protection of Article 10 ECHR and therefore be limited, if it is used to offend or insult particular persons or institutions. However, if it is used as a stylistic feature to contribute to the public debate, the scope for interference with this expression is limited. In this sense, the Court did not develop a new line of caselaw that departs from the nuances of Skalka, Uj or VBK v Austria. It confirmed how these decisions inform the assessment whether the interference with the right to peaceful assembly was necessary in a democratic society (Bumbes). By doing so, it provided national authorities with a framework for assessment for future protests.
Peradze v Georgia clarifies the factors that national authorities need to take into account when deciding to interfere with protests using vulgar slurs. It establishes that, even though member states have a large discretion in defining the borders of their own public morals, they need to account for proportionality and democratic values in the process. In a time when protests are becoming increasingly polarized and aggressive, this is a helpful guidance. Vulgarity in its own right cannot be a reason to interfere with someone’s right to freedom of expression or right to peaceful assembly, but must assessed within its context and its impact in the public disturbance of the protest. Arguably, this case does not hold a new judicial precedent. However, it is a welcome clarification in protestors’ rights and national authorities’ responsibilities when it comes to dealing with public demonstrations.