Conviction of an activist for insulting the Chief of Police. Violation of freedom of expression
JUDGMENT
Gaspari v. Armenia (no. 2) 11.07.2023(app. no. 67783/13)
SUMMARY
Freedom of expression. Criminal conviction for characterizations against the Chief of Police.
The Chief of Police chose to drive his car through the gathering crowd of a demonstration, pushing a female protester and causing an angry reaction from the crowd. The appellant reacted and called the Chief of Police a “hooligan”, “idiot”, “beast” and “scum”. He was criminally sentenced to a fine.
Relying on Article 10 of the ECHR, the applicant complained that his criminal conviction for his characterizations during a demonstration violated his right to freedom of expression.
According to the Court, the criminal sanction was not “necessary in a democratic society”. The insulting characterizations in question against a high-ranking public official constituted a harsh criticism of the latter’s attitude towards the protesters. The national authorities failed to strike a fair balance between the conflicting rights to demonstrate that the applicant’s criminal conviction responded to a “pressing social need” and was proportionate to the legitimate aim he pursued.
The ECHR found a violation of freedom of expression (Article 10 ECHR).
PROVISION
Article 10
PRINCIPAL FACTS
On 20 October 2011 the applicant, who is a well-known civic activist, took part in a small demonstration held by a few dozen people in front of the seat of the Government to protest against non‑combat deaths in the Armenian army and the alleged lack of proper investigation into such incidents.
According to the findings of the domestic courts, at one point during the demonstration the then Chief of the Armenian Police (“the Chief of Police”), A.S., had exited the building and approached the gathered crowd intending to pass through it in order to get to his car. He had asked one of the female protesters to let him pass and had made his way through, touching the hand of the woman in question in the process. At that moment, the applicant had started yelling at the Chief of Police, calling him a “Hooligan”, “Fool”, “Brute” and “Scum”. Some of those present, including civilians and police officers, had reacted critically to the applicant’s behaviour.
The applicant contested some of the above findings, alleging that other officials who had left the Government building before the Chief of Police had walked round the gathered crowd in order not to cause disruption, whereas the Chief of Police had deliberately ploughed through it and, in doing so, had pushed one of the female demonstrators, thereby provoking an angry reaction from the crowd. The demonstrators had shouted “hooligan” and “criminal” at the Chief of Police, while the applicant also yelled: “Don’t push, you brute! Scum!”.
The applicant was arrested at the site of the demonstration and later charged with hooliganism under Article 258 § 1 of the former Criminal Code (“the CC”) (see paragraph 16 below) in connection with the above events.
The transcripts of several video clips examined during the trial, in so far as relevant, may be summarised as follows. After the Chief of Police approached the protesters and began to make his way through them (see paragraph 6 above), the applicant started shouting “Hooligans!”, “Brutes!”, “Don’t push!”, “Get your hands off, you brute!”, “Fool!”, “Hooligan!” and “Scum!”. Two other women can be heard shouting “Murderer!” and “Traitors to the nation!”. Then the Chief of Police stopped to speak with some of the police officers on duty and, addressing one of them, said “Every worthy-unworthy person is here, [what is] the point? The point?” and the applicant shouted “[A.S.] is a hooligan!”. The Chief of Police then approached his car, while the crowd yelled “Shame on you!”. At some point, the protesters can also be heard shouting “Hooligans!” and “Murderers!”.
According to the testimony of the police officers who were present, including the arresting officers, and of two witnesses to the incident, the applicant had, inter alia, displayed aggressive and disrespectful behaviour by uttering insults directed at, among other officials, the Chief of Police. He had continued with such behaviour despite remarks made by the officers and others.
Two participants in the protest, including the female protester mentioned in paragraph 6 above, submitted that the Chief of Police and his aides had pushed them while forcing their way through the protesters despite the latter’s demands to go round the group.
On 29 October 2012 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty as charged, finding that his actions had amounted to hooliganism within the meaning of Article 258 § 1 of the CC and sentencing him to a fine in the amount of 30,000 Armenian drams[1]. The trial court held that the applicant had grossly violated public order by shouting the utterances in question (see paragraph 6 above) at the Chief of Police in the presence of numerous people. Moreover, his behaviour had provoked indignation among those present, as demonstrated by the fact that they had made critical remarks about his actions. The Chief of Police had not done anything immoral or unlawful during the protest. Consequently, the applicant had wished to stand out from the crowd and to underline, in an unjustified manner, his superiority over public officials, in this case the Chief of Police whom he had singled out by chance.
The applicant appealed against his conviction, arguing, inter alia, that it had breached his right to freedom of expression and freedom of peaceful assembly. He and others had been protesting peacefully until the moment when the Chief of Police had pushed through the demonstrators, thereby disrupting the peaceful protest. The purpose of the demonstration had been to present publicly their concerns to public officials, and the expressions uttered in such a context could often involve potentially insulting elements referring to the actions of public officials. Not only had the Chief of Police not shown the tolerance required in such situations of a public official, but he had himself provoked the incident. Lastly, if the Chief of Police had considered the applicant’s remarks to be insulting, he could have pursued a civil action.
On 15 January 2013 the Criminal Court of Appeal dismissed the applicant’s appeal and endorsed the reasons given by the trial court.
The applicant appealed further, and on 27 March 2013 the Court of Cassation declared his appeal on points of law inadmissible for lack of merit in a decision which was notified to him on 9 April 2013.
THE DECISION OF THE COURT…
a) Whether there was an interference
The Court considers that the applicant’s criminal conviction constituted an interference with his right to freedom of expression (compare Janowski v. Poland [GC], no. 25716/94, § 22, ECHR 1999‑I).
The interference will not be justified under the terms of Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 of the Article and is “necessary in a democratic society” for the achievement of that aim or those aims.
(b) Whether the interference was lawful and pursued a legitimate aim
The Court notes that the applicant’s conviction was based on Article 258 § 1 of the Criminal Code. In the absence of any specific argument on the applicant’s part regarding the lawfulness of the interference of which he complained, the Court considers that his conviction had a sufficient legal basis in domestic law and thus met the requirement of lawfulness.
Furthermore, the Court is prepared to accept that the interference in question pursued the legitimate aim of the prevention of disorder.
(c) Whether the interference was “necessary” in a democratic society
In the case at hand, the applicant was prosecuted in criminal proceedings for statements which, as the domestic courts subsequently found, had grossly breached public order and aroused indignation among those present. The Court notes that the applicant used mostly derogatory language in his utterances directed at a high-ranking public official. It reiterates that a clear distinction must be made between criticism and insult. If the sole intent of any form of expression is to insult, an appropriate punishment would not, in principle constitute a violation of Article 10 of the Convention. However, not every remark which may be perceived as offensive or insulting by particular individuals or groups justifies a criminal conviction. While such sentiments are understandable, they alone cannot set the limits of freedom of expression. It is only by a careful examination of the context in which the offending, insulting or aggressive words appear that one can draw a meaningful distinction between shocking and offensive language which is protected by Article 10 of the Convention and language which amounts to wanton denigration – for example, where the sole intent of the offensive statement is to insult – thereby falling outside the protection of freedom of expression.
It is noteworthy that the applicant uttered the impugned remarks during a protest which concerned a highly sensitive matter for Armenian society . It transpires from the transcripts of the video material examined by the trial court that the attitude of the Chief of Police aroused indignation among some of the protesters who responded critically to his behaviour. The applicant, for his part, submitted before the domestic courts that his utterances had been made in response to the provocative attitude of the said official, who could have simply walked round the gathering without disrupting it.
Seen from this perspective, the Court considers that the applicant’s remarks can be understood as his immediate emotional reaction to what he saw as an instance of abusive conduct by an important public official who had knowingly entered into confrontation with the protesters and had exposed himself to their criticism. Therefore, considering the context and the wider circumstances, the Court is of the view that the disputed expressions, although provocative, offensive and aiming to agitate, were intended as harsh criticism of the attitude of a high-ranking public official, namely the Chief of Police, towards the protest and the participants, and thus did not amount to wanton denigration.
The Court further notes that the present case does not as such concern the discharge of the State’s positive duty, under Article 8 of the Convention, to protect the right to reputation of the Chief of Police, and thus does not necessitate the striking of a fair balance between two Convention rights deserving equal protection. Rather, the task of the domestic courts was to determine, in the light of the circumstances of the case, whether the applicant’s remarks could be considered to have breached public order and thus justified a criminal sanction. The Court, however, observes that the judgments of the domestic courts contain no specific reasoning leading to the conclusion that the applicant’s statements had grossly and intentionally breached public order. The domestic courts failed to provide any explanation of how, in the specific circumstances of the case, the interests of society in the protection of public order “overrode” the applicant’s interest in expressing his criticism of the public behaviour of a State official who had knowingly put himself in the limelight. In fact, the domestic courts appear to have ruled out altogether the possibility that the disputed remarks could be considered to have been an expression of the applicant’s opinion, without even addressing his arguments in that respect. In this connection, the Court would reiterate the importance of the obligation to provide reasons for decisions concerning a restriction of the right to freedom of expression, an obligation which offers an important procedural safeguard against arbitrary interferences with this right. In the Court’s view, such a limited assessment of the underlying facts deprived the national authorities of the possibility to establish whether there was a pressing social need to prosecute the applicant.
This was all the more important as the proceedings at issue were of a criminal nature and led to the applicant’s conviction. The Court reiterates, in this connection, that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal. Even when the sanction is the lightest possible, such as a guilty verdict with a discharge in respect of the criminal sentence and an award of only a “token euro” in damages, it nevertheless constitutes a criminal sanction and, in any event, a mild sanction cannot suffice, in itself, to justify the interference with the applicant’s freedom of expression. The Court has emphasised on many occasions that interference with freedom of expression may have a chilling effect on the exercise of that freedom – a risk that the relatively moderate nature of a fine would not suffice to negate.
The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to carry out any balancing exercise to show that the applicant’s criminal conviction met a “pressing social need” and was proportionate to the legitimate aim pursued. The interference was thus not “necessary in a democratic society”.
There has accordingly been a violation of Article 10 of the Convention.
