.

.
‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Friday, 31 October 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 44



Repeated conviction and imprisonment for public nudity in Scotland not in breach of freedom of expression - Gough v. the United Kingdom - Article 10 (freedom of expression) - The case concerned in particular Mr Gough’s complaint about his repeated arrest, prosecution, conviction and imprisonment in Scotland for breach of the peace because of his nudity in public places. The Court found that Mr Gough’s nudity in public was a form of expression of his opinion on the inoffensive nature of the human body. It accepted that the cumulative impact of the numerous sentences of imprisonment served in Scotland – which amounted to over seven years – was severe. However, the Court emphasised Mr Gough’s own responsibility for his convictions and the sentences imposed because of his wilful refusal to obey the law over a number of years. It also referred to his duty to show tolerance and sensibility to the views of members of the public, who were likely to be alarmed and offended by his nakedness.
It pointed out that there were other avenues open to Mr Gough to express his views on nudity. It concluded that Mr Gough’s lengthy imprisonment had been the consequence of his repeated violation of the criminal law, in full knowledge of the consequences, through conduct which went against the standards of accepted public behaviour in any modern democratic society. Having regard to the discretion allowed to the national authorities in this area, the Court found no violation of Article 10. The Court also found that, even if Mr Gough’s conduct fell within the scope of protection of “private life” under Article 8, the measures taken against him were justified for the reasons given in respect of Article 10.
"171.  The present case concerns the applicant’s 2011 arrest, prosecution, conviction and imprisonment for the offence of breach of the peace on account of his appearing naked in public, in the context of a pattern of previous such measures.
172.  The Court is prepared to accept that the extent to which, and the circumstances in which, public nudity is acceptable in a modern society is a matter of public interest. The fact that the applicant’s views on public nudity are shared by very few people is not, of itself, conclusive of the issue now before the Court (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44). As an individual intent on achieving greater acceptance of public nudity, the applicant is entitled to seek to initiate such a debate and there is a public interest in allowing him to do so. However, the issue of public nudity also raises moral and public-order considerations. The comparative data supplied by the Government show that even in the small number of States surveyed, the responses of the law and of the authorities to public nudity are far from uniform. In these circumstances, the applicable margin of appreciation in reacting to instances of public nudity, as opposed to regulating mere statements or arguments on the subject, is a wide one.
173.  Turning to examine the approach to manifestations of public nudity in Scotland, the police and the Crown Office had discretion in deciding how to respond to such incidents, as demonstrated by the applicant’s own case. The measures taken against him were not the result of any blanket prohibition: each incident was considered on its facts and in light of the applicant’s own history of offending. Following his early arrests, he was generally released with no further action being pursued (see paragraphs 8 to 31 above). On the occasions when he was prosecuted, the courts demonstrated a similarly individualised approach. The applicant was only convicted after it had established at trial, on the basis of evidence as to his conduct in a particularly public place, that the offence of breach of the peace had been made out, namely that he had caused alarm to other people and serious disturbance to the community (see paragraph 101 above) On one occasion the Sheriff found on the prosecution evidence that there was no case to answer and three times the applicant was found not guilty, either following acceptance of a not guilty plea or after a trial of the facts (see paragraphs 19, 24, 36 and 48 above). Following the applicant’s 2011 trial, at which he also appeared naked (see paragraph 76 above), the Sheriff was satisfied that the applicant’s appearance naked on a public road outside HMP Perth was sufficiently severe to cause alarm to ordinary people and serious disturbance to the community (see paragraph
80 above). Although the applicant could have avoided arrest outside HMP Perth by complying with the police officers’ request that he put on clothes, he refused to do so (see paragraph 75 above). The Sheriff commented that had the applicant appeared naked in a more remote place or in a place where fewer people would be congregated, rather than “in or near one of the main streets of a busy town”, he might have reached a different conclusion (see paragraph 80 above).
174.  As to the severity of the sanctions, it is noteworthy that after his early convictions the applicant was either admonished (see paragraph 10 above) or received short sentences of imprisonment of between two weeks and three months (see, for example, paragraphs 11, 16 and 31 above). It was only after a number of convictions for public nudity that the courts began to impose more substantial custodial sentences on the applicant. Even then, efforts were made to reach a less severe penalty. When sentencing the applicant for breach of the peace in 2009, the Sheriff explored the possibility of a non-custodial sentence if the applicant would agree to wear clothes, and only imposed a one-year sentence when the applicant refused to accept a condition of remaining clothed (see paragraph 60-61 above). By the time of his 2011 conviction and sentence of 330 days, together with a requirement to serve in addition 237 days outstanding for a previous sentence (see paragraph 81 above), he had been arrested over thirty times for public nudity and convicted almost twenty times. In assessing the proportionality of the penalty imposed, the Court is therefore not concerned with the respondent State’s response to an individual incident of public nudity but with its response to the applicant’s persistent public nudity and his wilful and contumacious refusal to obey the law over a number of years (see for example the Sheriff’s comments as to sentence in respect of the June 2009 conviction at paragraphs 60-61 above).
175.  It is true that by the time that the 2011 sentence was imposed, the applicant had already served a cumulative total of five years and three months in detention since 18 May 2006, on remand pending fifteen criminal prosecutions and post-conviction pursuant to twelve sentences of imprisonment, with only four days’ spent at liberty during that period. At the point at which he subsequently left Scotland on 9 October 2012, he had spent almost six and a half consecutive years in prison with less than a dozen days at liberty throughout the entire period. The cumulative period of imprisonment in Scotland since 2003 for the repeated instances of his refusal to dress in public stands at over seven years. While the penalty imposed for each individual offence, taken on its own, is not such as to raise an issue under Article 10 in terms of lack of proportionality, the cumulative impact on the applicant of the measures taken by the respondent State, which was undeniably severe, is otherwise. However, the applicant’s own responsibility for the convictions and the sentences imposed cannot be ignored. In exercising his right to freedom of expression, he was in principle under a general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them (see, mutatis mutandis, Tănase, cited above, § 167). Many other avenues for the expression of his opinion on nudity or for initiating a public debate on the subject were open to the applicant. He was also under a duty, particularly in light of the fact that he was asking for tolerance in respect of his own conduct, to demonstrate tolerance of and sensibility to the views of other members of the public. However, the applicant appears to reject any suggestion that acceptance of public nudity may vary depending on the nature of the location and the presence of other members of the public. Without any demonstration of sensibility to the views of others and the behaviour that they might consider offensive, he insists upon his right to appear naked at all times and in all places, including in the courts, in the communal areas of prisons and on aeroplanes (see, for example, paragraphs 22, 29, 33, 53, 76 and 93 above).
176.  The applicant’s case is troubling, since his intransigence has led to his spending a substantial period of time in prison for what is – in itself – usually a relatively trivial offence (see paragraph 100 above). However, the applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. Having regard to the considerations set out above and to the wide margin of appreciation, the Court finds that the reasons for the measures adopted by the police, the prosecuting authorities and the courts, and in particular those adopted in respect of his arrest in 2011, were “relevant and sufficient” and that the measures met a pressing social need in response to repeated anti-social conduct by the applicant. It cannot be said that the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant to communicate his opinion on nudity were, even if considered cumulatively, disproportionate to the legitimate aim being pursued, namely the prevention of disorder and crime. In particular, Article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression when the State, in the performance of its duty to protect the public from public nuisances, enforces the law in respect of such deliberately repetitive antisocial conduct. Even though, cumulatively, the penalties imposed on the applicant undoubtedly did entail serious consequences for him, the Court cannot find in the circumstances of his case, having regard in particular to his own responsibility for his plight, that the public authorities in Scotland unjustifiably interfered with his exercise of freedom of expression. Accordingly, no violation of Article 10 of the Convention has been established."
 Comments:
"Quant à l'atteinte à la vie privée, également invoquée par celui-ci, elle est rapidement rejetée par la Cour. Le respect de la vie privée n'implique pas, en effet, un droit absolu de se vêtir comme on l'entend. Certes, ce droit existe dans l'abri du domicile privé, où chacun peut s'habiller, ou se déshabiller comme il l'entend, dès lors que la nudité demeure invisible aux yeux des voisins. Mais ce droit disparaît dans l'espace public, dans lequel le vêtement est perçu comme un élément de la vie sociale. Dans ce cas, l'Etat est parfaitement fondé à poser des règles gouvernant l'apparence des personnes. C'est ainsi que, dans une jurisprudence constante, la Cour considère que les Etats ont le droit d'imposer le port de l'uniforme à certains fonctionnaires, ou d'interdire d'arborer des signes religieux (CEDH 27 mai 2013 Eweida et autres c. Royaume-Uni). A fortiori, peuvent ils prohiber le fait de ne pas porter de vêtements du tout. La nudité n'est donc pas un droit, tout juste une tolérance, dans le domicile privé ou dans des lieux situés à l'abri du regard d'autrui. La vie privée trouve ainsi sa limite dans le regard d'autrui : "Cachez ce sein que je ne saurais voir. Par de pareils objets les âmes sont blessées et cela fait venir de coupables pensées"."  Le droit de se promener nu n'existe pas

Ten days’ detention for an act of political protest against Ukrainian President Yanukovych was excessive - Shvydka v. Ukraine - The case concerned an alleged breach of the right to be presumed innocent on account of terms used by the public prosecutor in a discontinuance decision finding that criminal proceedings for sexual abuse were time-barred. The Court was of the view that the terms used in that decision left no doubt as to the public prosecutor’s opinion that Mr Peltereau-Villeneuve was guilty and it thus found that the reasoning of the decision, which had been made public and confirmed by the Swiss courts, had breached the applicant’s right to be presumed innocent. 

No remedy in Belgian legal system for complaints about the length of pending criminal proceedings - Panju v. Belgium The case concerned the length of criminal proceedings, which had remained at the judicial investigation stage after more than eleven years. The Court found that neither the compensatory remedy nor the preventive remedies invoked by the Belgian Government could, for the time being, be regarded as an effective remedy by which to complain about the length of the judicial investigation stage in criminal proceedings.

Public prosecutor breached a clergyman’s right to be presumed innocent by declaring him guilty in a decision discontinuing time-barred proceedings - Peltereau-Villeneuve v. Switzerland  - The case concerned an alleged breach of the right to be presumed innocent on account of terms used by the public prosecutor in a discontinuance decision finding that criminal proceedings for sexual abuse were time-barred. The Court was of the view that the terms used in that decision left no doubt as to the public prosecutor’s opinion that Mr Peltereau-Villeneuve was guilty and it thus found that the reasoning of the decision, which had been made public and confirmed by the Swiss courts, had breached the applicant’s right to be presumed innocent.


Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

No comments:

Post a Comment