Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 215
February 2018
Sinkova v. Ukraine – 39496/11
Judgment 27.2.2018 [Section IV]
Article 10
Article 10-1
Freedom of expression
Conviction for protest at a war memorial: no violation
Facts – The applicant belonged to an artistic group and together with three other members went to a Second World War Memorial to make an “act of performance”. The applicant took a frying pan, broke some eggs into it and fried them over the Eternal Flame at the Tomb of the Unknown Soldier. Two others fried sausages on skewers over the flame whilst the final member of the group filmed the event.
On the same day the applicant posted the video on the Internet on behalf of the group with an accompanying statement condemning the burning of natural gas to maintain the Eternal Flame at the taxpayers’ expense.
Following the events the applicant was arrested and remanded in custody pending trial before being released. She was subsequently found guilty of desecrating the Tomb of the Unknown Soldier following a prior conspiracy and sentenced to three years’ imprisonment, suspended for two years. All her appeals were dismissed.
In the Convention proceedings, the applicant complained of a violation of her right to freedom of expression under Article 10.
Law – Article 10: It was not disputed that the applicant’s conviction constituted an interference with her right to freedom of expression. However, the Court held it was neither possible nor reasonable for the Criminal Code to specify the behaviour that might be considered as amounting to desecration of a tomb and therefore the interference complied with the requirement of lawfulness. The measure also pursued the legitimate aim of protecting the morals and rights of others.
Assessing whether the interference was “necessary in a democratic society” the Court noted that the applicant was criminally prosecuted and convicted only on account of frying eggs over the Eternal Flame, which the domestic courts considered to have amounted to desecration of the Tomb of the Unknown Soldier. The charge against her concerned neither the subsequent distribution of the video nor the contents of the text accompanying the video. Therefore, the applicant was not convicted for expressing the views that she did or even for expressing them in strong language. Her conviction was a narrow one in respect of particular conduct in a particular place based on a general prohibition forming part of ordinary criminal law.
There was nothing to suggest that the domestic courts had erred in their assessment of the relevant facts or incorrectly applied domestic law. The applicant’s conduct could be reasonably interpreted as contemptuous towards those in whose honour the memorial had been erected. It was emphasised there were many suitable opportunities for the applicant to express her views or participate in genuine protests in respect of the State’s policy on the use of natural gas or responding to the needs of war veterans, without breaking the criminal law and without insulting the memory of soldiers who perished and the feelings of veterans, whose rights she had ostensibly meant to defend.
In assessing the nature and severity of the penalty, the Court emphasised the applicant was given a suspended sentence and did not serve any of it. Therefore, having regard to all the circumstances of the case the restriction complained of was held to be reconcilable with the applicant’s freedom of expression.
Conclusion: no violation (four votes to three).
The Court also found, unanimously, a violation of Article 5 in respect of the applicant’s arrest and detention.
Article 41: EUR 4,000 in respect of non-pecuniary damage.
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