Guarantees of Freedom of Artistic Expression and Its Limits in Decisions of the European Court of Human Rights

Abstract

Belkin Leonid  - Senior Researcher, Director of Firm Analytik (Ukraine), PhD (Engineering). E-mail: belkinleonid@list.ru
Address: Lenina St., 58, Kramatorsk, the Donetsk region, Ukraine

The article features the case practice of the European Court of Human Rights when resolving disputes on restricting freedom of artistic expression. It stresses that the constitutions of all modern states identifying themselves as democratic codify the right to artistic expression. However, the evaluative character of the concepts relating to artistic expression gives rise to interpretations of state bodies and supporters of restrictions. As a result, a necessity arises to call an external moderator who could give an independent evaluation to the grounds for restrictions. The European Court of Human Rights may serve as this moderator. The author tries to specify general principles and approaches of the court to solving these issues. The article shows that in democratic society, the presumption of the freedom of artistic expression should be deemed absolute. The key principle to justify the restrictions of rights and freedoms is the necessity of the restrictions in a democratic society. However, the rights are prioritized. In particular, restrictions as to arranging rallies may be imposed only in emergency situations to avert an evident threat, but not in the interests of powers. The burden of proof for restricting freedom of expression should be laid on the initiator, primarily the state. This restrictions should be based exclusively on law and meet the requirements of a democratic society. The European Court of Human Rights considers the restrictions imposed on artistic expression for a very limited range of cases, i.e. if they are aimed to avert the mockery of national minorities or believers, to protect the most vulnerable groups – children and teenagers, if there is a threat that these groups may access information and ideas which can harm their moral development; and in the case of private life – from unjust intervention if the victims do not perform public functions.