Time for Strasbourg to stop the abuse of criminal libel laws

Across Europe, criminal libel laws continue to be routinely abused to silence legitimate criticism. In its most extreme form, we see this happen in places such as Azerbaijan, where journalists are serving jail time; but in other countries, too, criminal libel laws are routinely employed against journalists. Because of the availability of prison sentences and often hefty fines, and the fact that a conviction will lead to a criminal record, these laws cast a long shadow and have a serious chilling effect on free speech.

One might have thought that the European Court of Human Rights, in its de facto role as a constitutional human rights court for Europe, would have picked up on this and have issued an unequivocal ruling stating that the use of criminal libel laws, particularly when prison sentences are available, violates the right to freedom of expression. It would be a useful ruling to issue. It has had appropriate cases before it.

Unfortunately, it has not done so. In a series of recent cases, it has come close though. In its recent decision in Gavrilovici v. Moldova (15 December 2009, Application no. 25464/05), the Court stated: "[T]he Court recalls that imposing criminal sanctions on someone who exercises the right to freedom of expression can be considered compatible with Article 10 “... only in exceptional circumstances, notably where other fundamental rights have been seriously impaired” (par. 60)

Similarly, in Bodrožić and Vujin v. Serbia (23 June 2009, Application no. 38435/05) the Court held: "[R]ecourse to criminal prosecution against journalists for purported insults raising issues of public debate, such as those in the present case, should be considered proportionate only in very exceptional circumstances involving a most serious attack on an individual’s rights (para. 39)"

And in its decision in Cumpănă and Mazăre v. Romania (17 December 2004, Application no. 33348/96), the Grand Chamber explained – in relation to the imposition of a prison sentence – that such exceptional circumstances might include “cases of hate speech or incitement to violence” (para. 115; see also Mahmudov and Agazade v. Azerbaijan, par. 50).

Also last year, the Court held in Długołęcki v. Poland (Application no. 23806/03, 24 February 2009) that “when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed” (par. 47); and see again, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, (Application no. 35877/04, 18 December 2008) para. 51).

While all these statements are helpful, in none of these cases did the Court go so far as to state that criminal libel per se violates freedom of expression. It probably wasn't necessary for it to do so on the facts before it - but it would have been useful had the Court taken a step back, assessed its backlog of Article 10 cases, realised many of them concerned criminal libel convictions and entered a categorical judgment of principle.

What the Court has done is refer to the availability of civil law remedies when it has found that the imposition of criminal sanctions on speech violated Article 10. For example, in Mahmudov and Agazade v. Azerbaijan the Court took into consideration that the criminal sanction imposed in that case “was undoubtedly very severe, especially considering that lighter alternatives were available under the domestic law” (at para. 50). And in Lyashko v. Ukraine (Application no. 21040/02, 10 August 2006), the Court held: "[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." (par. 41f) The latter is in fact the standard Castells v. Spain statement re-hashed and with some emphasis added - but the Court could have gone much further.

There are in fact numerous cases where the Court has held that the use of civil law remedies in defamation is to be preferred over criminal law remedies (see, for example, Fedchanko v. Russia, 11 February 2010, Application no. 33333/04; Krutov v. Russia, 3 December 2009, Application no. 15469/04; Lombardo and others v. Malta, 24 April 2007, Application no. 7333/06). In Raichinov v. Bulgaria (20 April 2006, application no. 47579/99), the Court stated that "the assessment of the proportionality of an interference with the rights protected thereby will in many cases depend on whether the authorities could have resorted to means other than a criminal penalty, such as civil and disciplinary remedies" (par. 50).

Similarly, in Kubaszewski v. Poland (2 February 2010, Application no. 571/04), the Court emphasised that “the party who felt offended had recourse to means of civil law which, in the Court's view, are appropriate in cases of defamation" (par. 45).

All of this is helpful - but it stops short of what's really needed: a categorical statement denouncing criminal libel as a violation of freedom of expression. It's always a case of so close, yet so far.

The time has now come for it to make that final step. Criminal libel violates freedom of expression. Look at the annual reports of the CPJ, RSF, Article 19 and dozens other free speech groups, domestic and international. Criminal libel laws are abused to restrict legitimate journalism. The European Court is in a position to do something about it - now do it.

The case of Makarenko v. Russia will be before the Grand Chamber selection panel soon and presents an ideal opportunity. My plea to the Panel: accept the case, and let the Grand chamber issue a suitably Grand judgment and rid the continent of one of the most abused pieces of law around.