Freedom of artistic expression : art, the European Court of Human Rights and forms of silencing in Europe

Abstract

The aim of this thesis is to determine whether the freedom of artistic expression under the European Court of Human Rights (ECtHR) is under threat. Bearing in mind that the countries under its jurisdiction are widely known for their cultural diversity, it is often overlooked that human rights violations also occur within the member-states of the Council of Europe (CoE). Nevertheless, some of the member-states are generally known for frequent human rights violations, especially concerning the freedom of expression. To be able to determine the overall status of freedom of artistic expression within the member-states of the CoE, previous and current judgments of the ECtHR and their rationales are looked at in more detail. This analysis also includes determining what the ECtHR has ruled to be covered by the term ‘artistic freedom’ and what has not been included. Furthermore, the margin of appreciation doctrine as well as the three-part test are considered more closely, to see how the ECtHR approaches conflicting situations and to what extent freedom of artistic expression is jeopardized in that context. The paper, on the basis of case-law, investigates how the ECtHR’s decisions developed over time and if profound changes are visible in its ruling. The results of the research suggest that although positive developments are visible in recent years, there are also serious restrictions in individual member-states, which are in particular due to conservative attitudes in the exercise of the margin of appreciation. Even if the ECtHR has evolved in many respects, there is still a need for a common approach by the member-states to prevent the less progressive among them from limiting artistic freedom by misusing the margin of appreciation granted by the ECtHR.