JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, MOTOC AND PACZOLAY

We fully share the reasoning and conclusions in the judgment on all points related to Article 5 of the Convention. We respectfully dissent, however, from the majority ’ s finding that Article 10 of the Convention was not violated in the present case.

Undoubtedly, the applicant ’ s performance was extremely provocative, given the sensitive nature of war memorials. However, it is a firm stance of this Court, expressed more than forty years ago in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), 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”.

Although we acknowledge that decisions concerning attacks on “ a long-standing tradition in many cultures and religions ... aimed at commemorating a person or event of national significance” (paragraph 110) are hard for all courts, the reasons adduced by the national authorities to justify the restriction imposed on the applicant were not, in our view, “relevant and sufficient”. In particular, we cannot agree that the national judicial authorities applied the principles embodied in Article 10 and that they based their decisions on a satisfactory assessment of the relevant facts.

First of all, we find that the analysis by the domestic courts was deficient for its failure to address the purpose of the applicant ’ s performance and its satirical nature. The majority believe that since the applicant was convicted only on account of frying eggs over the Eternal Flame, and not for the subsequent distribution of the respective video and accompanying text, it cannot be said that she was convicted for expressing her views (see paragraph 107 of the judgment). We cannot share this view – she was convicted precisely for the performance as a whole. Two police officers who commented to her and her associates that their behaviour was inappropriate did not pursue the matter until after the subsequent posting of the video online and the relevant complaints.

The applicant belonged to an artistic group called the St Luke Brotherhood, which was known for its provocative public performances (paragraph 6). Their performance, as she explained, was aimed at drawing public attention to the incompatibility of the official pathos when it came to remembrance of the Second World War with the miserable situation of surviving war veterans. Together with other participants, she sought to highlight what they perceived as the superfluous nature of an eternal flame which, whilst honouring the sacrifices of those who fell in the service of their country, did little to support war veterans who desperately needed the State ’ s limited resources . Satura quidem tota nostra est is the famous saying of Quilitian describing the composite nature of this literary genre. Satire extended rapidly to all form of artistic expression mainly in the social and political arena. As Stanisław Jerzy Lec wittily mentioned in his Unkempt Thoughts , “there are times when satire has to restore what pathos has destroyed”. This satirical performance necessarily included filming the process of frying eggs to be later put on the Internet with the relevant commentary. By filming and subsequently disseminating the video, supplemented by the song and text, the applicant and other participants chose to express their criticism through a rude and irreverent satire.

This Court ’ s approach to freedom of artistic protests is clearly established in its case-law. In Vereinigung Bildender Künstler v Austria (no. 68354/01, § 33, 25 January 2007) the Court stated 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 [or anyone else ’ s right] to such expression should be examined with particular care.”

(see also Eon v. France, no. 26118/10, § 60, 14 March 2013, and Alves da Silva v. Portugal , no. 41665/07, § 27, 20 October 2009). Such careful examination has not been afforded to the applicant, whose claim before the domestic courts that the criminal proceedings against her were contrary to Article 10 was not adequately considered. The majority dismissed the applicant ’ s protest stating – in a surprisingly edificatory manner – that “there were many suitable opportunities for the applicant to express her views ... on the use of natural gas or responding to the needs of war veterans” (at paragraph 110), thus ignoring its intended message and purpose.

The applicant ’ s satire had done exactly what this art frequently does: it transferred the viewer ’ s attention from an object to its social context. An artistic gesture might demonstrate the conditionality of established value boundaries, but it does not reject them. In the context of freedom of speech, the US Supreme Court noted in the famous case of Texas v. Johnson, when holding that the desecration of the American Flag was protected speech under the First Amendment, that “symbolism is a primitive but effective way of communicating ideas” [1] . In a fast-moving world, it is not surprising that those who wish to highlight a particular cause or voice an opinion would have recourse to those symbolic acts and demonstrations which are likely to gather a greater degree of attention and trigger a wider debate than might have been achievable with more conventional and established forms of protest. The relationship between art and the conveyance of opinions is a complicated one; and whilst art should not be reduced to an opinion, art quite often relates to the expression of an opinion.

In the present case, the Soviet song with a repeated refrain (“The battle is going on again and again”) as a soundtrack to the video also underlines the satirical nature of the protest, and is self-explanatory – the protesters were criticising, in their view, the hypocritical behaviour of authorities who do not want to accept that the battle is already over and that it is time to propose real and not illusory care of those who handed the victory. The applicant ’ s actions, and those of her associates, undoubtedly generated significant controversy and offence among many of those who became aware of it, due perhaps to its perceived bad taste, but their aim was the opposite: in the words of George Orwell, “the aim of the joke is not to degrade the human being, but to remind him that he is already degraded”.

The matter received extensive coverage in the media and online. Yet it must be emphasised that it is not the applicant ’ s opinions which have shocked and angered others, but rather the manner in which she chose to communicate them. To our regret, neither domestic courts nor this Court commented on the satirical nature of the performance. Moreover, the domestic courts paid little attention to the applicant ’ s stated motives given their irrelevance for the legal classification of her actions, although a little scope under Article 10 § 2 for restrictions on freedom of expression in the area of political speech or debate required them to give consideration to the structure of the performance as a whole and to conduct a sufficiently careful balancing exercise on the basis of the criteria laid down in the Court ’ s case-law. In Murat Vural v. Turkey , cited in the judgment, the Court stated:

“in deciding whether a certain act or conduct falls within the ambit of Article 10 of the Convention, an assessment must be made of the nature of the act or conduct in question, in particular of its expressive character seen from an objective point of view, as well as of the purpose or the intention of the person performing the act or carrying out the conduct in question.”

This approach must surely be relevant not simply in determining the applicability of Article 10, but also in assessing whether there has been a violation of that provision.

Finally, this Court has already mentioned that criminal penalties for conduct such as that of the applicant in the present case are likely to have a chilling effect on satirical forms of expression relating to topical issues. Such forms of expression can themselves play a very important role in open discussion of matters of public concern, an indispensable feature of a democratic society (see Eon v France , cited above, § 61).

As the Court stated in Murat Vural , “peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence”. In that case, even the infliction of criminal damage, specifically the pouring of paint onto a statue, were not viewed as being “of a gravity justifying a custodial sentence”. In Dmitriyevskiy v. Russia (no. 42168/06, § 117, 3 October 2017), the Court considered that the conviction of a journalist for incitement to hatred or enmity and his two-year suspended sentence and four months ’ probation had violated Article 10 as “both the applicant ’ s conviction and the severe sanction imposed were capable of producing a chilling effect on the exercise of journalistic freedom of expression”. We find some inconsistency in the Court ’ s concern over the “severe sanction” of a suspended sentence in Dmitriyevskiy , and the position of the majority as to the same sanction in the present case, where the applicant committed no criminal damage, nor any breach of the peace.

In sum, 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 sentence, we believe that Article 10 was violated in the present case.

As a general remark, the present judgment inevitably gives rise to the question of how far a contracting State may criminalise insults to memory and designate certain spaces and structures as “off-limits” for individuals to exercise their right to protest and express their opinions, in a manner consistent with Article 10 [2] . There is a real risk of eroding the right of individuals to voice their opinions and protest through peaceful, albeit controversial, means.

[1] 1. 491 U.S. 397, 405 (1989), citing West Virginia State Board of Education v. Barnette 319 U.S. 624, 632 (1943). In Johnson , the petitioner had been convicted for desecration of a venerated object under Texas state law (Tex. Penal Code Ann. § 42.09(a)(3) (1989)). Under the law, “'desecrate' means to deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action”.

[2] 2. For a discussion on this topic see the concurring opinions of Judge Sajo in the case of Murat Vural v. Turkey and Judge Pinto de Albuquerque in the case of Faber v. Hungary .