Art on Trial. Freedom of Artistic Expression and the European Court of Human Rights

Abstract

The way that art is judged in courtroom shapes way it is perceived at large and has a direct consequence on how it can be appreciated by society. Surely, not all art is to everybody's liking. Even judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In recent Sinkova v. Ukraine case, a divided Fourth Section of European Court of Human Rights ruled that applicant's conviction for an artistic performance featuring applicant frying eggs over Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting memory of soldiers from insult, outweighs applicants right to free expression. The artistic nature of applicant's actions is ignored by ECtHR and in absence of an explanatory context, performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive? This essay will focus on significance ECtHR attaches to protection of artistic expression and ways in which it regulates dynamics between artistic freedom and public morals. A cursory review of relevant case-law (cases which have at their center controversial artworks) will show that, more often than not, when freedom of artistic expression is set against need to protect public morals, or the rights of others, ECtHR favors latter.