JOINT DISSENTING OPINION OF JUDGES SPIELMANN AND JEBENS

(Translation)

We voted against finding a violation of Article 10 of the Convention. We are anxious to clarify the reasons for our vote in the following lines .

1. The Court accepted that the prohibition on exhibiting the painting “ Apocalypse ” was prescribed by law and pursued the legitimate aim of the “protection of the rights of others” . However, the majority of the judges found that the interference was disproportionate to the aim pursued and therefore not necessary in a democratic societ y within the meaning of Article 10 § 2 of the Convention. Accordingly, the majority found a breach of Article 10 of the Convention.

2. We do not subscribe to this approach .

3. I t should be recalled that the painting was a m ontage combin ing painted elements and photographs of people, the overall effect being an unrealistic and exaggerated depiction of public figures in sexually explicit positions . The painting was not intended to portray reality . On the contrary, it is permissible to consider that it sought to convey a message by means of caricature and satire, which, according to the Court, 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 ” (see paragraph 33 of the judgment ).

4. To justify its finding of a violation of Article 10, the Court relied on Mr Meischberger ' s standing as a politician and the fact that the message conveyed could be construed as a sort of counter-attack against the Austrian Freedom Party, whose members had previously criticised the artist ' s work (paragraph 34). The Court added that 33 people were depicted on the same painting and that Mr Meischberger was certainly one of the less well known of them (paragraph 35), that the painting had subsequently been damaged, having been covered in red paint (paragraph 36), and that the injunction in issue had not been limited in time or in space (paragraph 37). H aving weighed up Mr Meischberger ' s personal interests and tak en account of the artistic and sa tirical nature of his portrayal and the impact of the injunction on the applicant association, the Court concluded that the injunction was disproportionate (paragraph 38).

5. We do not agree with this conclusion. Our reason is that where the “protection of the rights of others” is at stake, artistic freedom cannot be unlimited.

6. Admittedly, the Court ' s case-law consistently reiterates, and rightly so, that freedom of expression “is applicable not only to ... ' 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ' democratic society ' . ” [1] We also take the view that the State ' s margin of appreciation should be particularly limited, or indeed practically non-existent, where its interference affects artistic freedom. [2]

7. However, in the present case the painting in question, even if it is an expression of what is known nowadays as “committed” art ( art engag é ), [3] does not deserve the unlimited protection of Article 10 of the Convention , precisely because it interferes excessively with the rights of others. In other words : “There are ... limits to excess : on e cannot be excessive ly excessive . ” [4]

8. The excessive nature of the portrayal results precisely from its attack on the “ dignit y of others” , which in our view is covered by the protection of the “rights of others”. On this point, we subscribe to the dissenting opinion of our collea gue Judge Loucaides. We would emphasise that the concept of dignity prevails throughout the European Convention on Human Rights, even if it is not expressly mentioned in the text of the Convention. [5] However, the Court has made it clear in its case-law that “[t]he very essence of the Convention is respect for human dignity and human freedom.” [6] And as a learned author has put it: “The foundation of human rights cannot be anything other than the ' equal dignity ' of all human beings. D ignit y and universalit y are therefore indissociable .” [7]

9. In our opinion, it was not the abstract or indeterminate concept of human dignity – a concept which can in itself be dangerous since it may be used as justification for hastily placing unacceptable limitations on fundamental rights [8] – but the concrete concept of “fundamental personal dignity of others” [9] which was central to the debate in the present case, seeing that a photo graph of Mr Meischberger was used in a pictorial montage which he felt to be profoundly humiliating and degrading.

10. It should be noted in this connection that in an order of 3 June 1987 , [10] in a case about cartoons, the German Federal Constitutional Court relied on the concept of human dignity as expressly enshrined in the Basic Law ( A rticle 1 (1) ) , [11] in dismissing a complaint by a publisher. The cartoon portrayed a well-known politician as a pig copul ating with another pig dressed in judicial robes. The court did not accept the publisher ' s argument relating to artistic freedom as protected by Article 5 (3) of the Basic Law. [12] It is important to note that the c ourt accepted that the cartoons could be described as a work of art; it was not appropriate to perform a quality control ( Niveaukontrolle ) and thus to differentiate between “superior” and “inferior” or “good” and “bad” art. [13] However, it dismissed the complaint, finding that the cartoons were intended to deprive the politician concerned of his dignity by portraying him as engaging in bestial sexual conduct . Where there was a conflict with human dignity, artistic freedom ( Kunstfreiheit ) must always be subordinate to personality rights . [14]

11. One commentat o r, Eric Barendt , rightly approved this decision, stating :

“Political satire should not be protected when it amounts only to insulting speech directed against an individual. If, say, a magazine feature attributes words to a celebrity, or uses a computerized image to portray her naked, it should make no difference that the feature was intended as a parody of an interview she had given. It should be regarded as a verbal assault on the individual ' s right to dignity, rather than a contribution to political or artistic debate protected under the free speech (or freedom of the arts) clauses of the Constitution.” [15]

12. In a word, a person ' s human dignity must be respected, regardless of whether the person is a well-known figure or not .

13. Returning to the case before us, we therefore consider that the reasons that led the Court to find a violation ( see paragraph 4 above) are not relevant. Such considerations must be subordinate to respect for human dignity .

14. We would also like to add that the very fact that Mr Meischberger ' s photograph was included as part of the painting without his consent is in itself problematic in terms of the Convention. The right to one ' s own image is in our view covered by Article 8 of the Convention , which protects the right to private life. [16] Article 8 prot ects the right to an identity [17] and the right to personal development, particularly in relation to the notion of personal autonomy , an important principle underlying the interpretation of the guarantees of that provisi on . [18] Since control of one ' s own image is one of the essential components of personal development , Article 8 may therefore be applicable simply on the ground that the person has not had the prior opportunity to challenge the reproduction of his or her image . In the present case, the question of a violation of the right to one ' s own image is all the more serious in that the photograph of Mr Meischberger was used , or rather misused, as part of a depiction of situations which were particularly shocking in their conception and have, moreover, been eloquently described by our colleague Judge Loucaides in his dissenting opinion.

15. Lastly , we voted against the second point of the operative provisions in which the Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained . The wording of p oint 2 of the operative provisions of the judgment should have left us indifferent . But since we voted against finding a violation of Article 10 of the Convention, we also decided to vote against that point of the operative provisions.

[1] 1. Handyside v. the United Kingdom , judgment of 7 December 1976, Series A no. 24, p. 23, § 49.

[2] 2. This solution has (unfortunately) not been adopted to date by the Court. See Müller and Others v. Switzerland , judgment of 24 May 1988, Series A no. 133 , concerning the applicants’ conviction and sentence to a fine (“conviction”) for publishing obscene material following an exhibition of pictures, and the confiscation of the pictures ; Otto -Preminger-Institut v. Austria , judgment of 20 September 1994, Series A no. 295 ‑ A, concern ing the seizure and forfeiture of a film deemed to be blasphemous ; and Wingrove v. the United Kingdom , judgment of 25 November 1996, Reports of Judgments and Decisions 1996 ‑ V, concern ing the refusal of a certificate for distribution of a video deemed to be blasphemous . We might note in passing that in Müller and Others v. Switzerland the Court found that there had been no violation of Article 10, a solution which we do not find persuasive, seeing that the paintings in issue in that case did not infringe the rights of others but were simply deemed to be obscene. As to the applicant’s conviction, the Court added, however, that “[m] oreover , as the Commission pointed out, there is a natural link between protection of morals and protection of the rights of others” (pp. 20-21, § 30). Concerning the confiscation of the paintings, the Court referred to the “protect[ion of] public morals by preventing any repetition of the offence with which the applicants were charged” (pp. 23-24, § 39).

[3] 3. See the German Federal C onstitutional Court ’s decision of 3 June 1987 ( BVerfGE 75 , 369 ; EuGRZ , 1988, 270), discussed below :

“Die umstrittenen Karikaturen sind das geformte Ergebnis einer freien schöpferischen Gestaltung, in welcher der Beschwerdeführer seine Eindrücke, Erfahrungen und Erlebnisse zu unmittelbarer Anschauung bringt. Sie genügen damit den Anforderungen, die das Bundesverfassungsgericht als wesentlich für eine künstlerische Betätigung ansieht (BVerfGE 67, 213 [226] = EuGRZ 1984, 474 [ 4 77] unter Berufung auf BVerfGE 30, 173 [189]). Daß mit ihnen gleichzeitig eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt ihnen nicht die Eigenschaft als Kunstwerk. Kunst und Meinungsäußerung schließen sich nicht aus; eine Meinung kann – wie es bei der sogenannten engagierten Kunst üblich ist – durchaus in der Form künstlerischer Betätigung kundgegeben werd en (Scholz, a.a. O., Rdnr. 13). Maßgebliches Grundrecht bleibt in diesem Fall Art. 5 Abs. 3 Satz 1 GG, weil es sich um die spezielle Norm handelt (BVerfGE 30, 173 [200]).”

It should be noted that in German Constitutional Law, freedom of the arts ( Kunstfreiheit ) is specifically protected by Article 5 (3) of the Basic Law. “The exercise of this freedom is not limited, as is freedom of expression, by the provisions of general laws or the right to reputation, but it must be considered in conjunction with other constitutional rights, notably the right to the free development of personality and human dignity.” E. Barendt , Freedom of Speech , 2nd ed., Oxford , Oxford University Press, 2005, p. 229, citing the order of the German Constitutional Court of 17 July 1984 in the “street-theatre” case, [ BVerfGE 67, 213; EuGRZ , 1984, 474] in which the court held that a moving street theatre, in which Franz-Josef Strauss, then a candidate for the Chancellorship, was portrayed in the same float as prominent Nazis, should be protected under freedom of the arts in the absence of evidence that there was a very serious injury to personality rights.

[4] 4. P. Martens, Théories du droit et pensée juridique contemporaine , Brussels, Larcier , 2003, p. 151: “Il y a (…) des limites à l’excès : on ne peut pas être excessivement excessif.”

[5] 5. The Preamble to the Convention refers to the Universal Declaration of Human Rights (10 December 1948) , which contains references to dignity in the first recital of its Preamble and in A rticles 1, 22 and 23. The concept is also referred to in the Charter of the United Nations (1945) (Pre amble) and the United Nations Covenants (1966) ( P r eamb les to both Covenants ; A rticle 10 of the International Covenant on Civil and Political Rights ; Article 13 of the International Covenant on Economic, Social and Cultural Rights ). This list of international instruments is not exhaustive. Several national constitutions contain an explicit reference to the concept of dignit y . For example, Article 1 ( 1 ) of the German Basic Law provides: “ Human dignity is inviolable. A ll public authorities have a duty to respect and protect it . ” (“Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.”) Lastly, mention may also be made of the Charter of Fundamental Rights of the European Union, Article 1 of which provides: “ Human dignity is inviolable. It must be respected and protected. ” For a commenta ry on this provis ion in the light of international case-l aw , see the commentary on the European Union Charter by the EU Network of Independent Experts on Fundamental Rights (CFR-CDF) , June 2006 , and L. Burgorgue-Larsen, A. Levade and F. Picod , Traité établissant une Constitution pour l’Europe . Commentaire article par article. Partie II : La Charte des droits fondamentaux de l’Union , Brussels, Bruylant , 2005, Vol. 2, pp. 36 et seq .

The European Court of Justice has mentioned human dignity several times. See the commentary on the European Union Charter by the EU Network of Independent Experts on Fundamental Rights (CFR-CDF), June 2006, op. cit. , pp. 24 et seq. , and in particular the judgment of 14 October 2004, Case C-36/02, Omega Spielhallen - und Automatenaufstellungs -GmbH v. Oberbürgermeisterin der Bundestadt Bonn , [2004] ECR I-9609, § 34: “the Community legal order undeniably strives to ensure respect for human dignit y as a general principle of law . ” The ECJ referred to the opinion of Advocate-General, Mrs. Christine St ix-Hackl of 18 March 2004 (§§ 82- 91).

[6] . Pretty v. the United Kingdom , no. 2346/02, § 65, ECHR 2002 ‑ III , and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI. See also ValaÅ¡inas v. Lithuania , no. 44558/98 , § 102, ECHR 2001 ‑ VIII.

[7] . E. Decaux, “Dignité et universalité”, in S. Marcus Helmons ( ed .), Dignité humaine et hiérarchie des valeurs. Les limites irréductibles , Brussels, Academia - Bruylant , Bruylant , 1999, p. 164 : “Le fondement des droits de l’homme ne peut être que « l’égale dignité » de tous les hommes. Dès lors, dignité et universalité sont indissociables.”

[8] . See D. Feldman , “Human Dignity as a legal value. Part I ” , Public Law , 1999, pp. 682-702, at p. 697: “ The notion of dignity can easily become a screen behind which paternalism or moralism are elevated above freedom in legal decision-making. ” As another author has pointed out, “[l]a notion de dignité, indéfinie, est à l’évidence manipulable à l’extrême. Grande peut-être alors la tentation d’un ordre moral évoquée par G. Lebreton ( Chr. D . [1996, J., 177]). La confusion établie entre moralité publique et dignité s’y prête particulièrement à l’heure où le politiquement correct traverse l’Atlantique”, J.-P. Théron, “Dignité et libertés. Propos sur une jurisprudence contestable”, in Pouvoir et liberté. Etudes offertes à Jacques Mourgeon , Brussels, Bruylant , 1998, p. 305, concerning two decisions of 27 October 1995 by the French Conseil d’Etat , sitting as a full court, Commune de Morsang-sur-Orge and Ville d’Aix-en-Provence , AJDA , 1995, 942, RFDA , 1995, 1204, submissions by Mr Frydman , and Rev . trim. dr . h ., 1996, 657, submissions by Mr Frydman , note by Nathalie Deffains . See also P. Martens, “Encore la dignité humaine: Réflexions d’un juge sur la promotion par les juges d’une norme suspecte”, in Les droits de l’homme au seuil du troisième millénaire. Mélanges en hommage à Pierre Lambert, Brussels, Bruylant , 2000, pp. 561 et seq . On the role played by morals in the debate on dignity , see J. Fierens, “La dignité humaine comme concept juridique”, Journal des Tribunaux , 2002, pp. 577 et seq ., in particular p. 581. See also , from the perspective of the “ paradigm of humanity ”, B. Edelman , “La dignité de la personne humaine, un concept nouveau”, D. , 1997, chron . p. 185, and reprinted in the book by the same author La personne en danger , Paris, PUF, 1999, pp. 505 et seq .

[9] . On the distinction between protection of the dignity of others and protection of one’s own fundamental dignity , see B. Maurer, Le principe de respect de la dignité humaine et la Convention européenne des droits de l’homme , Paris, La documentation française, 1999, in particular pp. 450 et seq . and pp. 464 et seq .

[10] . BVerfGE 75, 369; EuGRZ , 1988, 270. See also the article by G. Nolte, “Falwell vs. Strauß: Die rechtlichen Grenzen politischer Satire in den USA und der Bundesrepublik”, EuGRZ , 1988, pp. 253-59.

[11] . See footnote 5 above.

[12] . Article 5 (3) of the German Basic Law provides: “Art and science, research and teaching are free. ...”

As already noted (see footnote 3 above), freedom of the arts ( Kunstfreiheit ) is specifically protected by Article 5 (3) of the Basic Law and the exercise of this freedom is not limited as freedom of expression is. It must be considered in conjunction with other constitutional rights, such as the right to human dignity. See E. Barendt , Freedom of Speech , 2nd ed., Oxford , Oxford University Press, 2005, p. 229.

[13] . “ Die Grundanforderungen künstlicher Tätigkeit festzulegen, ist daher durch Art. 5 Abs. 3 Satz 1 GG nicht verboten sondern verfassungsrechtlich gefordert. Erlaubt und notwendig ist allerdings nur die Unterscheidung zwischen Kunst und Nichtkunst; eine Niveaukontrolle, also eine Differenzierung zwischen ‘höherer’ und ‘niederer’, ‘guter’ und ‘schlechter’ (und deshalb nicht oder weniger schutzwürdiger) Kunst, liefe demgegenüber auf eine verfassungsrechtlich unstatthafte Inhaltskontrolle hinaus (Scholz in: Maunz/Dürig, GG, Art. 5 Abs. 3 Rdnr. 39) .”

[14] . E. Barendt , Freedom of Speech , 2nd ed., Oxford , Oxford University Press, 2005, p. 230.

[15] . Op. cit. , p. 230. The author adds in a footnote the following: “For an Italian case on the point, see the decision of the Corte di Cassazione , Penal Section, of 20 Oct. 1998, reported in (1999) Il Diritto dell’Informazione e dell’Informatica 369, rejecting appeal of author of a newspaper article which included a cartoon implying that a woman senator fellated Berlusconi. Satire is not protected if does not respect personality rights. ”

[16] . See Von Hannover v. Germany , no. 59320/00, § 50, ECHR 2004 ‑ VI , and Sciacca v. Italy , no. 50774/99, § 28, ECHR 2005 ‑ I.

[17] . See Wisse v. France , no. 71611/01, § 24, 20 December 2005.

[18] . See Pretty v. the United Kingdom , no. 2346/02, § 61, ECHR 2002 ‑ III .