27.06.2006 ARTICLE 19 Statement to the Riga Regional Court on the criminal prosecution of Aleksandrs Gilmans
Statement to the Riga Regional Court
on the criminal prosecution of
ARTICLE 19 ∙ 6-8 Amwell Street ∙ London EC1R 1UQ ∙ United Kingdom
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ARTICLE 19, Global Campaign for Freedom of Expression, understands that the former deputy of Riga city council, Aleksandrs Gilmans, is due to go on trial this month charged with ‘incitement to forcibly overthrow the government of the Republic of Latvia and forcibly change the political system’ as defined under Section 81 of the Criminal Code. According to information and translations made available to us, the charge is based on remarks on the web-forum of the website www.shtab.lv made in August 2005, in which Gilmans, in the context of a discussion about a book, described the Latvian State as ‘the enemy’ and an ‘absolute evil’ and stated that it had been an ‘unforgivable mistake that our generation allowed [the Latvian State’s] establishment’. He also drew a comparison between Latvia and the Nazi regime, stating that ‘today it is no different – to come to Berlin and hang Ribbentrop and his companions was, indeed, necessary – eventually, it happened so.’
ARTICLE 19 is firmly of the view that Mr. Gilmans’s statements, as represented above, fall within the protection of the guarantee of freedom of expression as enshrined in human rights treaties to which Latvia is a party. The relevant legal standards are elaborated below, followed by an application of the law to the facts of the present case. We urge the Riga regional court to uphold Latvia’s international obligations in the area of freedom of expression and accordingly to acquit Mr. Gilmans.
Relevant International Law
The legitimacy of restrictions on freedom of expression
It is recognised in international law that the right to freedom of expression is not absolute and may be restricted in favour of other important interests, including the protection of national security. Any restriction must, however, comply with the conditions laid down in two major human rights treaties to which Latvia is a party, the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The relevant provisions are broadly similar in each of these treaties; we use Article 10(2) of the ECHR as our example:
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.
This translates to a three-part test, according to which interferences with freedom of expression are legitimate only if they (a) are prescribed by law; (b) pursue a legitimate aim; and (c) are “necessary in a democratic society”.
Each of these elements has specific legal meaning. The first requirement will be fulfilled only where the restriction is ‘prescribed by law’. This implies not only that the restriction is based in law, but also that the relevant law meets certain standards of clarity and accessibility. The European Court of Human Rights has elaborated on the requirement of “prescribed by law” under the ECHR:
[A] norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given situation may entail.
The second requirement relates to the legitimate aims listed in Article 10(2), which include ‘national security’. To satisfy this part of the test, a restriction must genuinely pursue one of these aims; the underlying intention of a restriction on freedom of expression may not be to pursue a political agenda or other unrecognised interest.
The third requirement holds that any restrictions should be “necessary in a democratic society”. The word “necessary” means that there must be a “pressing social need” for the limitation. The reasons given by the State to justify the limitation must be “relevant and sufficient”; the State should use the least restrictive means available and the limitation must be proportionate to the aim pursued.
Principles applicable to restrictions for the protection of national security
International courts have dealt with a significant number of cases involving restrictions on freedom of expression in the area of national security. The great majority of these cases have been decided on the ‘necessity test’, giving rise to a body of jurisprudence from which a number of general principles can be drawn.
1. Freedom of expression extends to unpopular and controversial ideas
The European Court of Human Rights has consistently held that freedom of expression is not limited to opinions considered correct or constructive. The following statement appears in many of its decisions in national security cases:
Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.
The protection of national security may thus not be used as a cover for the suppression of ideas which are considered unpalatable.
2. There is little scope for restrictions on political expression
The Court views political speech as deserving the highest degree of protection; it has often held that “freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention”. While it recognises the principle that where “remarks incite to violence … the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression”, the Court has been very careful to distinguish remarks which are intended to contribute to democratic debate about the functioning of the government from those whose which rather intend to undermine the democratic order. It has warned that “there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest.”
3. The government must tolerate greater criticism than others
Another consistent feature of the European Court of Human Rights’ jurisprudence on freedom of expression is its position that “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician.” This is because, “[i]n a democratic system the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion.” It is a basic principle in any democracy that governments are elected to serve the people; it follows that they should tolerate far greater and more forceful criticism of their functioning than may be expected of a private individual.
4. The Government must utilise the criminal law with restraint
It is well-established in the case law of the European Court of Human Rights that the State should show restraint in use of the criminal law to restrict freedom of expression. The criminal law is a blunt instrument; and violations often result in prison sentences or heavy fines. It should therefore be used only as a last resort. In Castells v. Spain, the Court noted:
[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.
In Sener v. Turkey, the Court stated that this principle applies even in situations involving threats to national security:
Contracting States cannot, with reference to the protection of territorial integrity or national security or the prevention of crime or disorder, restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media.
5. Only the threat of direct harm to public order or national security justifies using the criminal law to restrict expression
In assessing whether a restriction on freedom of expression is ‘necessary in a democratic society’, the European Court of Human Rights will always “look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made.” The purpose of this contextual approach is to assess whether, in the circumstances of the particular case, it was reasonable for the domestic authorities to fear that the statement in question would indeed be likely to cause direct harm to national security.
The Court’s approach may be illustrated by its decision in Arslan v. Turkey. The applicant in this case had been convicted of “disseminating propaganda undermining the indivisibility of the nation” after publishing a book in which he described Turks as “invaders and persecutors who formed Turkey by conquering the lands of other peoples.” He also hailed a battle at the village of Silopi as “resistance” of the Kurdish people which announced the “joyful news of the day when they would tear down the fortress of violence of Turkish chauvinism.”
The European Court of Human Rights noted that the author “intended to criticise the action of the Turkish authorities in the south-east of the country and to encourage the population concerned to oppose it”; but he had not intended to incite a violent uprising. Therefore, his conviction had not been ‘necessary in a democratic society’. Key to this finding was the fact that:
[A]lthough certain particularly acerbic passages in the book paint an extremely negative picture of the population of Turkish origin and give the narrative a hostile tone, they do not constitute an incitement to violence, armed resistance or an uprising; in the Court’s view this is a factor which it is essential to take into consideration..
The UN Human Rights Committee also requires a close nexus between a prohibited expression and the occurrence of actual harm. The case of Keun-Tae Kim v. Republic of Korea concerned an activist who had distributed and read aloud documents to an audience of 4000, criticising the government and its foreign allies and appealing for reunification with North Korea (the DPRK). He was found guilty of offences under the National Security Law, for having distributed materials which coincided with the views of an ‘anti-State organization,’ namely the DPRK. The HRC found it was
…not clear how the (undefined) ‘benefit’ that might arise for the DPRK from the publication of views similar to their own created a risk to national security, nor is it clear what was the nature and extent of any such risk. There is no indication that the courts, at any level, addressed those questions or considered whether the contents of the speech or the documents had any additional effect upon the audience or readers such as to threaten public security, the protection of which would justify restriction within the terms of the Covenant as being necessary (emphasis added).
Application of the law to the facts of Mr. Gilmans’s case
The case-law described above demonstrates that the European Court of Human Rights and the UN Human Rights Committee, which oversee compliance with treaties to which Latvia is a party, set a high standard for restrictions on freedom of expression, particularly where political speech is concerned. On its face, Section 81 of Latvia’s criminal code is not in contradiction with this standard. ARTICLE 19 believes, however, that any interpretation of Section 81 which leads to a conviction of Mr. Gilmans would place Latvia in breach of its international obligations, since his remarks did not present a risk which made it ‘necessary in a democratic society’ to prohibit them.
At the outset, it is clear that neither the caustic tone of Mr. Gilmans’s remarks, nor the fact that they reflect an opinion likely to be considered offensive by a large section of the Latvian population, in themselves warrant an intervention by the authorities. The European Court of Human Rights’ position that freedom of expression extends to statements which “offend, shock or disturb” reflects the understanding that in a democracy, expression of a broad range of views is essential and strong language is sometimes used. The Court has often stressed that political expression may entail “recourse to a degree of exaggeration, or even provocation”; and that “a certain degree of hyperbole and exaggeration is to be tolerated”. Governments should never restrict expression merely because it shocks or because it seems to present an exaggerated point of view.
Nonetheless, restrictions on freedom of expression may still be justified, but only if the expression presents a demonstrable danger to national security. The jurisprudence cited above shows that a remote or abstract risk of harm will not suffice – the authorities must indicate a close nexus between the statement in question and the likely occurrence of actual harm.
In Arslan v. Turkey, the applicant’s harsh attacks on the Turkish State and praise of Kurdish insurgents did not justify his criminal conviction, despite their occurrence against the backdrop of 15 years of often violent unrest. An important consideration was the fact the form in which the author made his remarks – a book containing a literary historical narrative, rather than a statement in the mass media – made the occurrence of further violence unlikely.
The current situation in Latvia surrounding the rights of the Russian-speaking minority, while tense, pales in comparison with the gravity of circumstances in early 1990s Turkey. Moreover, Mr. Gilmans’s remarks seem benign in comparison with Arslan’s, which came close to encouraging the ongoing armed resistance. The medium through which Mr. Gilmans published his comment, a forum on a website dedicated to the protection of Russian-language schools, is hardly an obvious place from which to instigate a violent uprising. These facts, combined with the observation that no armed struggle has resulted over the last 10 months, make it implausible to argue that Mr. Gilmans’s remarks presented an imminent risk of harm to national security.
A further consideration which the European Court of Human Rights would take into account, as was seen above, is whether the prosecution of Mr. Gilmans is intended to respond to a genuine case of incitement. The first factor to cast doubt on this is a plain reading of Mr. Gilmans’s remarks. The comparison between Nazi Germany and Latvia appears more as a hyperbolic expression of frustration than as a genuine call for a foreign invasion of Latvia. Moreover, it is difficult to read into the remarks an encouragement to rise up against the Latvian government. Gilmans sums up ‘our task’ as being to “get maximum concessions, using the Enemy’s weakness and cowardice” and to “pass our ideology over to the next generation.” There is no indication that Gilmans intends to extract these concessions through means other than constitutional and peaceful ones. Secondly, the political machinations surrounding Mr. Gilmans’s case pose further questions about the real purpose of his prosecution. We are informed that the investigation was not initiated until after the head of the national security police had been repeatedly summoned to Parliament by nationalist parties to account for his failure to prosecute Mr. Gilmans. If this is true, it appears that displeasure with the nature of Mr. Gilmans’s opinions is as much a driving force behind the case as a genuine concern about incitement to violence.
Finally, and in connection with the previous point, we recall the European Court of Human Rights’ statement that governments, which have adequate alternative means at their disposal to respond to criticism, should be reluctant to resort to criminal proceedings. The disproportionate nature of the decision to prosecute Mr. Gilmans is likely, if anything, to further inflame Latvia’s Russian-speaking minority, and hence contribute to the danger which it is ostensibly supposed to combat.
ARTICLE 19 does not believe that Mr Gilmans’s statements can be legitimately restricted in a democratic society. We recommend therefore that the criminal case against Mr Gilmans should be immediately discontinued, using the appropriate judicial mechanisms. Should the case nevertheless proceed, we recommend that Mr Gilmans should be found not guilty.
 See, for example, Handyside v. the United Kingdom, 7 December 1976, Application No. 5493/72, para. 48 (European Court of Human Rights).
 See, for example, Lingens v. Austria, 8 July 1986, Application No. 9815/82, paras. 39-40 (European Court of Human Rights).
 See, for example, Zana v. Turkey, 25 November 1997, Application No. 18954/91, para. 51 (European Court of Human Rights); Sürek v. Turkey (No. 4), 8 July 1999, Application No. 24762/94, para. 54 (European Court of Human Rights).
 E.g. Lingens v. Austria, 8 July 1986, Application no. 9815/82, par. 42.
 Karatas v. Turkey, 8 July 1999, Application No. 23168/94, para. 50 (European Court of Human Rights).
 Id., paras. 50-52.
 See, for example, Castells v. Spain, 23 April 1992, Application No. 11798/85, para. 46 (European Court of Human Rights).
 Note 10, para. 46.
 Şener v. Turkey, Application No. 26680/95, 18 July 2000, paras. 40, 42 (European Court of Human Rights).
 See, for example, Gerger v. Turkey, 8 July 1999, Application No. 24919/94, para. 46 (European Court of Human Rights).
 Arslan v. Turkey, 8 July 1999, Application No. 23462/94 (European Court of Human Rights).
 Id., para. 45.
 Id., para. 50.
 Id., para. 48.
 Keun-Tae Kim v. Korea, Communication No 574/1994, UN Doc. CCPR/C/64/D/574/1994 (4 January 1999), para 12.4.
 E.g. Bladet Tromso v. Norway, 20 May 1999, Application no. 21980/93, par. 59.
 Steel and Morris v. United Kingdom, 15 February 2005, Application no. 68416/01, par. 90.
 ARTICLE 19 takes no responsibility for any comments based on a mistaken translation or incorrect representation of the facts, as set out in this statement.
 The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para.49 (European Court of Human Rights).
 Article 18, ECHR.