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FIRST
SECTION
CASE OF
VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA
(Application
no. 68354/01)
JUDGMENT
STRASBOURG
25 January 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vereinigung Bildender Künstler v. Austria,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 19 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 68354/01) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an association, Vereinigung Bildender Künstler
(“the applicant association”), on 12 March 2001.
- The
applicant association was represented by Schönherr OEG, a law
firm practising in Vienna. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry for Foreign Affairs.
- The
applicant association alleged that the Austrian courts' decisions
forbidding it to continue exhibiting a painting by Otto Mühl had
violated its right to freedom of expression under Article 10 of the
Convention.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- By
a decision of 30 June 2005 the Court declared the application
admissible.
- Neither
the applicant association nor the Government filed further written
observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- Vereinigung
Bildender Künstler Wiener Secession is an association of artists
with its seat in the Secession building in Vienna. The Secession, an
independent gallery, is devoted entirely to exhibitions of
contemporary art. One of the basic objectives of the association is
to present current developments in Austrian and international art,
and to cultivate an openness to experimentation.
- Between
3 April and 21 June 1998 the applicant association held an exhibition
on its premises. The exhibition, entitled “The century of
artistic freedom” (“Das Jahrhundert künstlerischer
Freiheit”), was intended as part of the celebrations of the
association's 100th anniversary. Among the works to be shown was a
painting entitled “Apocalypse”, which had been produced
for the occasion by the Austrian painter Otto Mühl. The
painting, measuring 450 cm by 360 cm, showed a collage of various
public figures, such as Mother Teresa, the Austrian cardinal
Hermann Groer and the former head of the Austrian Freedom Party
(FPÖ) Mr Jörg Haider, in sexual positions. While
the naked bodies of these figures were painted, the heads and faces
were depicted using blown-up photos taken from newspapers. The eyes
of some of the persons portrayed were hidden under black bars. Among
these persons was Mr Meischberger, a former general secretary of the
FPÖ until 1995, who at the time of the events was a member of
the National Assembly (Nationalratsabgeordneter), a mandate he
held until April 1999. Mr Meischberger was shown gripping the
ejaculating penis of Mr Haider while at the same time being
touched by two other FPÖ politicians and ejaculating on
Mother Teresa.
- The
exhibition, for which admission was charged, was open to the public.
-
On 11 June 1998, while the exhibition was in progress, the Austrian
newspaper Täglich Alles bristled at the above painting's
portayal of “group sexual situations with Bishop Groer and
Mother Teresa”.
- On
12 June 1998 the painting was damaged by a visitor, who covered with
red paint the part which showed, among others, Mr Meischberger.
As a consequence of this incident the entire painted body of Mr
Meischberger and part of his face were covered with red paint.
- Several
Austrian newspapers reported on this event and also published
pictures of the painting.
- On
22 June 1998 Mr Meischberger brought proceedings under section 78
of the Copyright Act (Urheberrechtsgesetz) against the
applicant association, seeking an injunction prohibiting it from
exhibiting and publishing the painting. He further requested
compensation in the amount of 20,000 Austrian schillings (ATS –
1,453.46 euros (EUR)). He argued that the painting, showing him in
sexual positions with several persons, debased him and his political
activities and made statements as to his allegedly loose sexual life
(lotterhaftes Intimleben). The black eye-bars did not prevent
him from being recognised, because he was shown together with two
other FPÖ politicians. He remained recognisable even after the
incident of 12 June 1998, which had further increased the
publicity given to the painting. Furthermore, there was a danger of
recurrence as after the present exhibition the painting was due to be
shown at another exhibition in Prague.
- On
6 August 1999 the Vienna Commercial Court (Handelsgericht)
dismissed Mr Meischberger's action. It noted that it had initially
been intended to show the exhibition in Prague, Bucharest and
Luxembourg as well; now the intention was to close down the
exhibition. The court further found that it could be ruled out that
the painting had adversely affected the claimant or divulged
information about his private life, as the painting, which resembled
a comic strip (“comixartig”), obviously did not
represent reality. However, a painting showing the claimant in such
an intimate position could, regardless of its relation to reality,
still have a degrading and personally debasing effect. In the present
case, however, the right of the applicant association to freedom of
artistic expression outweighed Mr Meischberger's personal
interests. When balancing the latter's interests against the
interests of the applicant association, the court had regard in
particular to the fact that the exhibition was dedicated to the
association's artistic spectrum over the last hundred years, which
included the work of the Austrian painter Otto Mühl. It further
noted that the painting showed numerous other persons, among them
friends and benefactors of the painter, and also representatives of
the FPÖ party, which had always strongly criticised Mr Mühl's
work.
- The
painting in question could therefore be seen as a kind of
counter-attack (Gegenschlag). In any event, Mr Meischberger's
picture constituted only a rather small part of the painting and was
therefore not striking. The court further added that there appeared
to be no danger of recurrence (Wiederholungsgefahr) as the
painting had been partly covered by red paint and Mr Meischberger was
therefore no longer recognisable on it.
- On
24 February 2000 the Vienna Court of Appeal (Oberlandesgericht),
after having held an oral hearing, granted an appeal on points of law
and fact by Mr Meischberger, issued an injunction against the
applicant association prohibiting it from continuing to display the
painting at exhibitions, and ordered it to pay the costs incurred by
Mr Meischberger in the proceedings and ATS 20,000 (EUR
1,453.46), plus 4% interest with effect from 8 July 1998, in
compensation. It further allowed Mr Meischberger to publish
extracts of its judgment in two Austrian newspapers. It noted that Mr
Meischberger's picture was only partly covered by red paint, so that
part of his face, the shape of his head and his hairstyle were still
recognisable. The limits of artistic freedom were exceeded when the
image of a person was substantially deformed by wholly imaginary
elements without it being evident that the picture aimed at satire or
any other form of exaggeration. The painting in the present case was
not intended to be a parable or even an exaggerated criticism
conveying a basic message, such as, for example, the statement that
Mr Meischberger had disregarded sexual decency and morals. It
therefore did not fall within the scope of Article 10 of the
Convention, but in fact constituted a debasement of Mr Meischberger's
public standing (Entwürdigung öffentlichen Ansehens).
The applicant association could not justify the exhibition of the
painting under the artistic freedom protected by Article 17a of the
Basic Law (Staatsgrundsgesetz). There was, furthermore,
nothing to indicate that the applicant association would abstain from
exhibiting the painting in the future, so that there was a danger of
recurrence.
- On
18 July 2000 the Supreme Court (Oberster Gerichtshof) rejected
an appeal by the applicant association as it did not concern a legal
question of considerable interest. It noted that the Court of Appeal
had not questioned the fact that the painting fell within the scope
of protection provided by Article 17a of the Basic Law but, weighing
the guarantee of artistic freedom enshrined in that provision against
Mr Meischberger's personal rights as protected by section 78 of
the Copyright Act, had considered that the latter prevailed over the
former because a picture of Mr Meischberger had been used in a
degrading and insulting manner. As to the question whether Mr
Meischberger could still be recognised despite the painting being
covered with red paint, the Court of Appeal had not contradicted the
documents contained in the court file and there was therefore no need
for a rectification. It ordered the applicant association to pay the
costs of the proceedings.
- That
decision was served on the applicant association's counsel on
13 September 2000.
II. RELEVANT DOMESTIC LAW
19. Section 78
of the Copyright Act, in so far as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited
publicly, nor in any way made accessible to the public, where injury
would be caused to the legitimate interests of the portrayed persons
or, in the event that they have died without having authorised or
ordered publication, those of a close relative.”
- Artistic
freedom is guaranteed by Article 17a of the Basic Law
(Staatsgrundgesetz), which provides:
“There shall be freedom of artistic creation and
of the publication and teaching of art.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant association complained under Article 10 of the Convention
that the Austrian courts' decision forbidding it to exhibit any
further the painting at issue had violated its right to freedom of
expression.
Article 10,
as far as relevant, reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ....
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. The parties' submissions
- The
Government argued that the Austrian courts' injunction did not
constitute an interference with the applicant association's rights
within the meaning of Article 10 of the Convention. They submitted in
that regard that Article 10 did not protect artistic freedom as
such but only provided protection to artists who intended to
contribute through their work to a public discussion of political or
cultural matters. The present reproduction of public figures in
“group sexual situations” could, however, hardly be
regarded as a statement of opinion contributing to a cultural or
political debate.
- In
the alternative, the Government argued that the interference at issue
had been lawful and had served the legitimate aim of protecting
morals and the reputation and rights of others. As regards the
proportionality of the interference, they argued that since its
inauguration, the exhibition at which the painting had been shown had
been at the centre of media attention, precisely because of the
painting itself. The interest of the media had become even more
intense after the painting had been partly damaged, so that after the
event in question the part of the painting affected and the fact that
it showed Mr Meischberger was known not only to visitors of the
exhibition but to the general public. The painting had been displayed
in nearly all Austrian newspapers and on television. Accordingly, at
least from that date on, Mr Meischberger's personal interests had
prevailed over the interests of the applicant association in
exhibiting the painting. It was also irrelevant whether Mr
Meischberger was a subject of public interest at the time of the
events as the painting could by no means be regarded as part of a
public discussion of general interest or as relating to
Mr Meischberger in his public capacity. Nor could Mr
Meischberger be expected to comment in public on the painting since
the activities depicted in it could certainly offend the sense of
sexual propriety of persons of ordinary sensitivity. The Government
lastly pointed out that at the time of the interference the
exhibition at issue had already been closed down and that throughout
the duration of the exhibition the painting had actually been on
display. The applicant association had not intended to exhibit the
painting abroad. Furthermore, the prohibition on exhibiting the
painting any further concerned only the applicant association as the
exhibitor and not the owner of the painting, namely the artist and
his manager. Having regard to all these elements, the Government
argued that the interference at issue was proportionate within the
meaning of paragraph 2 of Article 10 of the Convention.
- The
applicant association argued that the public exhibition of a painting
contributed to a debate between the artist, the exhibitor and the
public and was therefore protected under Article 10 of the
Convention. It accepted that the impugned interference was prescribed
by law, but maintained that the interference had been neither
necessary nor proportionate. It submitted that the Government's
submissions as regards the protection of morals were irrelevant as in
the present case the domestic courts had based their decisions merely
on Mr Meischberger's prevailing personal interests as protected under
section 78 of the Copyright Act. Mr Meischberger could not,
however, claim any personal interest worth protecting as the painting
obviously did not state or suggest that the way in which he was
portrayed corresponded to his actual behaviour. The painting
presented the artist's personal history in an allegorical way and
depicted, among several other well-known persons, the painter himself
and some of his friends and benefactors. All these persons were
depicted engaging in sexual acts, reflecting the painter's conception
of the interrelation between power and sexuality. Mr Meischberger had
been one of the figures who had characterised the history of the FPÖ
party in the past few years, and he had been portrayed with the other
three members as an allegory of that party, which had always strongly
criticised the painter's work. Furthermore, Mr Meischberger and,
in any event, the actions he considered libellous were not
recognisable after the painting had been partly damaged. In the
applicant association's view, the fact that he had instituted
proceedings only after the painting had been partly damaged
demonstrated that rather than protecting his personal interests he
was aiming to discredit the painter's work.
- The
applicant association lastly pointed out that the Austrian courts'
decisions that the painting violated Mr Meischberger's rights as
protected under section 78 of the Copyright Act, and the injunction
prohibiting any further exhibition of the painting, concerned not
only the applicant association but also the painter himself and any
other third person wishing to exhibit the painting and were
equivalent to the deletion of the painting from the collective
memory. As an example they referred to the 2004 exhibition
concerning the work of Otto Mühl at the Vienna Museum for
Applied Arts (Museum für Angewandte Kunst), where the
painting had not been shown.
B. The Court's assessment
26. The
Court reiterates that freedom of expression, as secured in paragraph
1 of Article 10, constitutes one of the essential foundations of a
democratic society, indeed one of the basic conditions for its
progress and for the self-fulfilment of the individual. Subject to
paragraph 2, it 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 section of the population.
Such are the demands of that pluralism, tolerance and broadmindedness
without which there is no “democratic society”. Those who
create, perform, distribute or exhibit works of art contribute to the
exchange of ideas and opinions which is essential for a democratic
society. Hence the obligation on the State not to encroach unduly on
their freedom of expression. Artists and those who promote their work
are certainly not immune from the possibility of limitations as
provided for in paragraph 2 of Article 10. Whoever exercises his
freedom of expression undertakes, in accordance with the express
terms of that paragraph, “duties and responsibilities”;
their scope will depend on his situation and the means he uses (see
Müller and Others v. Switzerland, judgment of 24 May
1988, Series A no. 133, p. 22, §§ 33-34, with further
references).
- In
the present case, the Austrian courts forbade the applicant
association to exhibit any further the painting “Apocalypse”
by Otto Mühl. Such decisions interfered with the applicant
association's right to freedom of expression (see, mutatis
mutandis, Müller and Others, cited above, p. 19,
§ 27).
- The
Court further finds, and this was not disputed before it, that the
interference was “prescribed by law,” the impugned
courts' decisions having been based on section 78 of the Copyright
Act.
- As
to the question of the legitimate aim pursued, the Court observes
that section 78 of the Austrian Copyright Act provides a remedy
against publication of a person's picture where this would violate
the legitimate interests of the person concerned or, in the event
that he or she has died, those of close relatives. Referring to that
legislation, the domestic courts prohibited the applicant association
from exhibiting the painting at issue any further as they found that
it constituted a debasement of Mr Meischberger's public
standing. The Court therefore accepts that the impugned measure
pursued the legitimate aim of “protection of the rights of
others”.
- The
Government further contended that the aim of the interference
complained of was to protect public morals.
- The
Court notes, however, that neither the wording of the above
legislation, nor the terms in which the relevant court decisions were
phrased, refer to the latter aim. Therefore, the Court cannot accept
that the Austrian authorities, when prohibiting the exhibition of the
painting at issue, pursued any other objective than the protection of
Mr Meischberger's individual rights. Accordingly, the
Government's argument that the interference also pursued the
legitimate aim of protecting public morals fails.
- As
regards the necessity of the interference, the Court notes at the
outset that the painting, in its original state, depicted Mr
Meischberger in a somewhat outrageous manner, namely naked and
involved in sexual activities. Mr Meischberger, a former general
secretary of the Austrian Freedom Party and a member of parliament at
the time of the events, was portrayed in interaction with three other
prominent members of his party, amongst them Mr Jörg Haider, who
at that time was the party's leader and has in the meantime founded
another party.
- However,
it must be emphasised that the painting used only photos of the heads
of the persons concerned, their eyes being hidden under black bars
and their bodies being painted in an unrealistic and exaggerated
manner. It was common ground in the understanding of the domestic
courts at all levels that the painting obviously did not aim to
reflect or even to suggest reality; the Government, in their
submissions, have not alleged otherwise. The Court finds that such
portrayal amounted to a caricature of the persons concerned using
satirical elements. It notes 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 to such
expression must be examined with particular care.
- In
the present case, the Court considers that the painting could hardly
be understood to address details of Mr Meischberger's private life,
but rather related to Mr Meischberger's public standing as a
politician from the FPÖ. The Court notes that in this capacity
Mr Meischberger has to display a wider tolerance in respect of
criticism (see Lingens v. Austria, judgment of 8 July
1986, Series A no. 103, p. 26, § 42). The Court does not find
unreasonable the view taken by the court of first instance that the
scene in which Mr Meischberger was portrayed could be understood to
constitute some sort of counter-attack against the Austrian Freedom
Party, whose members had strongly criticised the painter's work.
- Furthermore,
the Court would stress that besides Mr Meischberger, the
painting showed a series of 33 persons, some of whom were very well
known to the Austrian public, who were all presented in the way
described above. Besides Jörg Haider and the painter himself,
Mother Teresa and the Austrian cardinal Hermann Groer were pictured
next to Mr Meischberger. The painting further showed the
Austrian bishop Kurt Krenn, the Austrian author Peter Turrini and the
director of the Vienna Burgtheater, Claus Peymann. Mr
Meischberger, who at the time of the events was an ordinary member of
parliament, was certainly one of the less well known amongst all the
people appearing on the painting and nowadays, having retired from
politics, is hardly remembered by the public at all.
- The
Court also observes that, even before Mr Meischberger instituted
proceedings, the part of the painting showing him had been damaged so
that notably the offensive painting of his body was completely
covered by red paint. The Court considers that, at the very latest
from this incident onwards, Mr Meischberger's portrayal – even
assuming that he was still recognisable, a question that elicited
contradictory answers from the different Austrian courts – was
certainly diminished, if not totally eclipsed, by the portrayal of
all the other, mostly more prominent, persons who were still
completely visible on the painting.
- The
Court lastly notes that the Austrian courts' injunction was not
limited either in time or in space. It therefore left the applicant
association, which directs one of the best-known Austrian galleries
specialising in contemporary art, with no possibility of exhibiting
the painting irrespective of whether Mr Meischberger was known, or
was still known, at the place and time of a potential exhibition in
the future.
- In
sum, having balanced Mr Meischberger's personal interests and taking
account of the artistic and satirical nature of his portrayal, as
well as the impact of the measure at issue on the applicant
association, the Court finds that the Austrian courts' injunction was
disproportionate to the aim it pursued and therefore not necessary in
a democratic society within the meaning of Article 10 § 2 of the
Convention.
- Accordingly,
there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
respect of pecuniary damage, the applicant association claimed
ATS 21,778 for the compensation and ATS 144,499.20 for the costs
it had been ordered to pay Mr Meischberger in the domestic
proceedings. Both sums were inclusive of VAT. It further claimed ATS
24,570, including VAT, in respect of the costs of the publication of
extracts of the judgment. It finally claimed reimbursement of a lump
sum of EUR 2,200 for supplementary administrative expenses during the
domestic proceedings.
- In
respect of non-pecuniary damage, the applicant association sought
EUR 70,000.
- The
Government claimed that, in the absence of a detailed breakdown, the
lump sum claimed for supplementary administrative expenses was
incomprehensible and that there was thus no causal link between this
sum and the violation found. The claim for non-pecuniary damage was
excessive and, in any event, the finding of a violation would offer
sufficient redress.
- As regards pecuniary damage, the Court finds that
there is a direct link between the applicant association's claims
concerning the costs it was ordered to pay to Mr Meischberger in the
domestic proceedings, the costs of publication of the judgment and
the violation of Article 10
found in the instant case. The Court therefore awards the full amount
claimed under this head, namely EUR 12,286.74, inclusive of VAT.
However, the applicant association's complaint, and, therefore, the
proceedings before the Court, concerned only the injunction
forbidding it to continue exhibiting the painting. Accordingly, the
Court cannot find any causal link between the applicant association's
claim in respect of the compensation it was ordered to pay and the
violation found. The Court will deal with the claim for reimbursement
of supplementary administrative costs incurred during the domestic
proceedings under the head of costs and expenses. As regards the
claim for non-pecuniary damage, the Court finds that in the
circumstances of the present case the finding of a violation
constitutes in itself sufficient just satisfaction.
B. Costs and expenses
- The
applicant association claimed reimbursement of its costs in the
domestic proceedings in the amount of EUR 12,950.16 and EUR 8,984.04
in respect of the proceedings before the Court. Both amounts included
VAT and were calculated on the basis of statutory domestic rates.
- The
Government argued that these claims were excessive and pointed out
that the Court was not bound by domestic scales and practices.
Furthermore, the subject of the proceedings before the Court was to a
considerable degree identical with that of the proceedings before the
national authorities and less preparation had therefore been
required.
- The
Court considers in respect of the domestic proceedings that the court
costs for the applicant association's legal representation were
actually incurred. Accordingly, it awards the full amount of
EUR 12,950.16, including VAT, for the applicant association's
domestic costs and expenses. As to the lump sum claimed for
supplementary administrative costs (see paragraph 44 above), the
Court notes that the applicant association did not submit supporting
documents as required by Rule 60 of the Rules of Court. It therefore
dismisses the claim as being unsubstantiated.
- With
regard to the applicant association's costs in the Convention
proceedings, the Court reiterates that it does not consider itself
bound by domestic scales and practices, although it may derive some
assistance from them (see, among many other authorities, Tolstoy
Miloslavsky v. the United Kingdom, judgment of 13 July 1995,
Series A no. 316, p. 83, § 77, and Baskaya and Okçuoglu
v. Turkey, nos. 23536/94 and 24408/94, § 98, ECHR 1999-IV).
Deciding on an equitable basis and having regard to similar cases,
the Court awards the applicant association EUR 3,000, including VAT,
under this head. It therefore awards a total of EUR 15,950.16 under
the head of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by four votes to three that there has been
a violation of Article 10 of the Convention;
- Holds by four votes to three that the finding of
a violation constitutes in itself sufficient just satisfaction for
the non-pecuniary damage sustained by the applicant association;
- Holds by four votes to three
(a) that
the respondent State is to pay the applicant association, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts:
(i) EUR
12,286.74 (twelve thousand two hundred and eighty-six euros and
seventy-four cents), inclusive of VAT, in respect of pecuniary
damage;
(ii) EUR
15,950.16 (fifteen thousand nine hundred and fifty euros and sixteen
cents), inclusive of VAT, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses by four votes to three the remainder
of the applicant association's claim for just satisfaction.
Done in English, and notified in writing on 25 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following dissenting opinions are
annexed to this judgment:
(a) Dissenting
opinion of Mr Loucaides;
(b) Joint
dissenting opinion of Mr Spielmann and Mr Jebens.
C.L.R.
S.N.
Dissenting opinion of
judge Loucaides
I
disagree with the opinion of the majority that there has been a
violation of Article 10 of the Convention in this case.
The
majority found that the images portrayed in the “painting”
in question were “artistic and satirical in nature”. This
assessment had a decisive effect on the judgment. The majority saw
the “painting” as a form of criticism by the artist of Mr
Meischberger, a politician and one of the persons depicted in it. It
was he who brought the proceedings which led to the impugned measure.
The
nature, meaning and effect of any image or images in a painting
cannot be judged on the basis of what the painter purported to
convey. What counts is the effect of the visible image on the
observer. Furthermore, the fact that an image has been produced by an
artist does not always make the end result “artistic”.
Likewise, an image will not become “satirical” if the
observer does not comprehend or detect any message in the form of a
meaningful attack or criticism relating to a particular problem or a
person's conduct.
In my
view, the picture in question cannot, by any stretch of the
imagination, be called satirical or artistic. It showed a number of
unrelated personalities (some political, some religious) in a vulgar
and grotesque presentation and context of senseless, disgusting
images of erect and ejaculating penises and of naked figures adopting
repulsive sexual poses, some even involving violence, with coloured
and disproportionately large genitals or breasts. The figures
included religious personalities such as the Austrian Cardinal
Hermann Groer and Mother Teresa, the latter portrayed with protruding
bare breasts praying between two men - one of whom was the Cardinal -
with erect penises ejaculating on her! Mr Meischberger was shown
gripping the ejaculating penis of Mr Haider while at the same time
being touched by two other FPÖ politicians and ejaculating on
Mother Teresa!
The
reader will of course need to look at the “painting” in
question in order to be able to form a view of its nature and effect.
It is my firm belief that the images depicted in this product of what
is, to say the least, a strange imagination, convey no message; the
“painting” is just a senseless, disgusting combination of
lewd images whose only effect is to debase, insult and ridicule each
and every person portrayed. Personally, I was unable to find any
criticism or satire in this “painting”. Why were Mother
Teresa and Cardinal Hermann Groer ridiculed? Why were the
personalities depicted naked with erect and ejaculating penises? To
find that situation comparable with satire or artistic expression is
beyond my comprehension. And when we speak about art I do not think
that we can include each and every act of artistic expression
regardless of its nature and effect. In the same way that we exclude
insults from freedom of speech, so we must exclude from the
legitimate expression of artists insulting pictures that undermine
the reputation or dignity of others, especially if they are devoid of
any meaningful message and contain nothing more than senseless,
repugnant and disgusting images, as in the present case.
As
was rightly observed in the judgment (paragraph 26) “...Artists
and those who promote their work are certainly not immune from the
possibility of limitations as provided for in paragraph 2 of Article
10. Whoever exercises his freedom of expression undertakes, in
accordance with the express terms of that paragraph, 'duties and
responsibilities'; their scope will depend on his situation and the
means he uses...”
Nobody
can rely on the fact that he is an artist or that a work is a
painting in order to escape liability for insulting others. Like the
domestic courts, I find that the “painting” in question
undermined the reputation and dignity of Mr Meischberger in a
manner for which there can be no legitimate justification and
therefore the national authorities were entitled to consider that the
impugned measure was necessary in a democratic society for the
protection of the reputation or rights of others.
It
might be useful to add that the large-sized painting in question was
exhibited in an art gallery open to the general public so that even
children could find themselves viewing it. It in fact provoked some
public indignation and even a violent reaction when a visitor
intentionally damaged parts of it. I acknowledge that, as a result of
the damage, Mr Meischberger's body was no longer visible.
However, I can adhere to the view taken by the Austrian courts that
the undamaged portrayal of a part of Mr Meischberger's head made
identification still possible.
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.
- 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 society within the meaning of Article 10 § 2 of
the Convention. Accordingly, the majority found a breach of Article
10 of the Convention.
- We
do not subscribe to this approach.
- It
should be recalled that the painting was a montage combining 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).
- 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). Having weighed up Mr
Meischberger's personal interests and taken account of the artistic
and satirical nature of his portrayal and the impact of the
injunction on the applicant association, the Court concluded that the
injunction was disproportionate (paragraph 38).
- 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.
- 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'.”
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.
- However,
in the present case the painting in question, even if it is an
expression of what is known nowadays as “committed” art
(art engagé),
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: one cannot be excessively excessive.”
- The
excessive nature of the portrayal results precisely from its attack
on the “dignity 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 colleague 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.
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.”
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. Dignity and universality are therefore indissociable.”
- 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
– but the concrete concept of “fundamental personal
dignity of others”
which was central to the debate in the present case, seeing that a
photograph of Mr Meischberger was used in a pictorial montage which
he felt to be profoundly humiliating and degrading.
- It
should be noted in this connection that in an order of 3 June 1987,
in a case about cartoons, the German Federal Constitutional Court
relied on the concept of human dignity as expressly enshrined in the
Basic Law (Article 1 (1)),
in dismissing a complaint by a publisher. The cartoon portrayed a
well-known politician as a pig copulating 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.
It is important to note that the court 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.
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.
- One
commentator, 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.”
- In
a word, a person's human dignity must be respected, regardless of
whether the person is a well-known figure or not.
- 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.
- 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.
Article 8 protects the right to an identity
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 provision.
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.
- 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 point 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.
