In a judgment released last week, the European Court of Human Rights unanimously held that Ukraine violated the rights to freedom of expression and an appeal in criminal matters when, in 2011, it detained Ms. Galyna Shvydka for ten days under the charge of petty hooliganism due to her act of political protest in support of the opposition party. See ECtHR, Shvydka v. Ukraine, no. 17888/12, Judgment of 30 October 2014, paras. 42, 55. The Court found that the State had violated Article 10 (freedom of expression) of the European Convention on Human Rights because her removal of a ribbon from a wreath during an Independence Day ceremony was an act of political expression, and her detention for ten days was excessive and penalized her for her political views. [ECtHR Press Release] The Court also found that the State violated Article 2 of Protocol No. 7 to the European Convention (right of appeal in criminal matters) because Ms. Shvydka’s appeal was examined after she had already served her sentence, thereby impairing the effectiveness of her appeal. [ECtHR Press Release] The Court ordered the State to pay Ms. Shvydka 5,000 euros in non-pecuniary damages. See ECtHR, Shvydka v. Ukraine, no. 17888/12, Judgment of 30 October 2014, para. 59.
Facts of the Case
At a wreath-laying ceremony for Independence Day, then Ukrainian President, Mr. Viktor Yanukovych, laid a ribbon on the wreath. Ms. Shvydka, who was a member of the opposition party Batkivshchyna, carefully removed the part of the ribbon that bore the President’s name to express her opposition. At the time, the leader of Batkivshchyna, Yulia Tymoshenko, was in prison facing what many viewed as politically motivated charges, and which the European Court of Human Rights later found to be arbitrary. See ECtHR, Tymoshenko v. Ukraine, no. 49872/11, Judgment of 30 April 2013. The State arrested Ms. Shvydka for petty hooliganism, and she was sentenced to 10 days of administrative detention after she refused to plead guilty to the charge. Administrative detention was the harshest sentence available for the offense. On the first day of her detention, she appealed the conviction but her appeal was not heard for three weeks, which was after she had served her full sentence. [ECtHR Press Release]
The petty hooliganism charge falls under Article 173 of Ukraine’s Code of Administrative Offences, which is defined as “offensive behavior or other similar actions which amount to a breach of the peace or disturb public order.” See ECtHR, Shvydka v. Ukraine, no. 17888/12, Judgment of 30 October 2014, para. 16. The prescribed punishments range from the imposition of a monetary fine to administrative detention for up to fifteen days if a fine would be “insufficient having regard to the character of the perpetrator.” See id. The Ukrainian Code of Administrative Offenses provides that imprisonment should only be applied for administrative offenses in exceptional cases, and the ten-day sentence imposed on the applicant was the longest available in cases of petty hooliganism not involving violence or danger. Id. at para. 41.
The Court’s Discussion of Freedom of Expression
The Court explained that Article 10 of the European Convention protects “not only the substance of the ideas and information expressed but also the form in which they are conveyed.” Id. at para. 31. The Court stated that any restriction on the freedom of expression must be “established convincingly” and “construed strictly.” See id. at para. 32.
The Court initially found that Ms. Shvydka’s act was an act of “expression,” because her removal of the ribbon was intended to express her views toward the President. The Court stated that requiring her to serve ten days’ detention “amounted to an interference with her right to freedom of expression.” See id. at para. 38.
The Court noted that administrative detention was a prescribed penalty under the domestic law, and that penalizing Ms. Shvydka for her actions would be lawful. See id. at para. 39.
However, the Court found that the State’s decision to apply the most severe penalty to “a sixty-three-year-old woman with no criminal record” for a violation not involving danger or violence, violated her right to freedom of expression because it was essentially penalizing her for her reluctance to change her political views. See id. at para. 41. Therefore, the Court found that the State violated Ms. Shvydka’s right to freedom of expression. See id. at para. 42.
The Court’s Discussion of the Right of Appeal in Criminal Matters
The Court noted that States have a “wide margin of appreciation” to determine how to secure the right of appeal in criminal matters, but reasoned that “a judicial review of a measure, which had by that time expired or almost expired, was considered to serve no longer any purpose.” See id. at paras. 48, 52.
The Court acknowledged that the State did not suspend Ms. Shvydka’s sentence upon receiving her appeal, but instead immediately imposed it. See id. at para. 53. The Court reasoned that the State violated the right of appeal in criminal matters because it was “inconceivable how that review would have been able to effectively cure the defects of the lower court’s decision” once the sentence had already been served in full. See id. While the appeal could have resulted in compensatory damages at that stage, the Court confirmed that damages “cannot be regarded as a substitute of the right to a review” as set forth in Article 2 of Protocol No. 7. See id. at para. 54.
Separate Opinion by Judge De Gaetano
Judge De Gaetano also found violations of the freedom of expression and the right of appeal in criminal matters, but issued a separate opinion to express his disagreement with the finding that the interference with Ms. Shvydka’s freedom of expression was prescribed by law. See id. (separate opinion of Judge De Gaetano) at para. 4.
He argued that the removal of the ribbon from the wreath did not constitute offensive behavior that would fall under the definition of petty hooliganism because there was no public nuisance element to her conduct. Consequently, Judge De Gaetano found that the State’s interference with the applicant’s freedom of expression was a violation of the Convention because it was not prescribed by law. See id. at para. 3.
Similar Cases before the Court
The European Court has addressed symbolic acts of freedom of expression in previous cases. For example, in Tatár and Fáber v. Hungary, the Court held that the display of dirty clothes around Parliament in Budapest constituted a form of political expression that symbolized the “dirty laundry of the nation.” See ECtHR, Tatár and Fáber v. Hungary, no. 26005/08 and 26160/08, ECHR 2012, Judgment of 12 June 2012, para. 36. The State sanctioned the applicants for failing to comply with the Assembly Act, which required assembly organizers to notify State officials prior to their demonstrations. See id. at para. 40. The Court held that the State’s imposition of an “administrative sanction, however mild, on the authors of such expressions which qualify as artistic and political at the same time can have an undesirable chilling effect on public speech,” and concluded that the State had violated the demonstrators’ freedom of expression. See id. at paras. 41–42.
The Court recently found a violation of the right to freedom of expression in Murat Vural v. Turkey, where the applicant was sentenced to thirteen years in prison for pouring paint on multiple statues of Atatürk, the founder of the Republic of Turkey, in protest of the Ministry of Education’s decision not to accept his application as a teacher. See ECtHR, Murat Vural v. Turkey, no. 9540/07, ECHR 2014, Judgment of 21 October 2014, paras. 5–14, 20. The Court held that the applicant’s actions were a form of political expression, and stated that “no reasoning can be sufficient to justify the imposition of such a severe punishment for the actions in question,” finding that the State violated the right to freedom of expression. See id. at paras. 67–68.
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