Sinkova v Ukraine is an ECtHR case concerning Anna Sinkova’s conviction for frying eggs over the Eternal Flame at the Tomb of the Unknown Soldier in Ukraine. This article argues against the majority’s judgment that Sinkova’s Article 10 right to freedom of expression had not been violated, ultimately finding that it was based on deficient legal reasoning and represents an unjustified departure from ECtHR case law. The article subsequently explores an alternative legal defence that emphasises Sinkova’s satirical intent, which warrants additional protection under ECtHR case law. It then builds on the case analysis by discussing the possible implications of Sinkova, both in the context of subsequent rulings and consequent ramifications on the freedom of expression.
Introduction
Sinkova v Ukraine1 is a case concerning the conviction of Anna Sinkova to a suspended three-year sentence for taking a frying pan and frying eggs over the Eternal Flame at the Tomb of the Unknown Soldier (‘the act’) in Ukraine. Sinkova filed an application with the European Court of Human Rights (‘ECtHR’), alleging that her detention had violated her right to liberty and security (Article 5) and her right to freedom of expression (Article 10) under the European Convention of Human Rights (‘ECHR’). On the question of Article 5, the ECtHR unanimously found three separate violations concerning her pre-trial detention, holding that it was ‘not covered by any judicial decision’.2 However, by a 4:3 majority, the ECtHR found no violation of Article 10. The dissenting opinion (including Judge Yudkivska, the delegated Ukrainian judge), voiced concerns that the ruling creates a ‘real risk of eroding the right of individuals to voice their opinions and protest through peaceful, albeit controversial, means’.3
This case note aims to critically analyse and deconstruct the majority’s reasoning, arguing that Sinkova’s Article 10 right had been violated. The majority’s reasoning of separating the act of frying eggs from its political intention – and the consequent finding that it was not the opinion but the act itself for which Sinkova was convicted – seems to oversimply the fact that the act was politically-motivated. A wide range of ECtHR case law is referenced throughout the case note to demonstrate that the ruling in Sinkova is also largely incompatible with the ECtHR’s past decisions regarding the interpretation and application of Article 10. The case note subsequently explores an alternative legal defence that emphasises the act’s satirical nature, which warrants additional protection. It then builds on the case analysis by discussing the possible implications of Sinkova, both in the context of subsequent rulings and consequent ramifications on the freedom of expression.
Part I: Summary of the Facts
The Eternal Flame at the Tomb of the Unknown Soldier (‘Eternal Flame’) is a war memorial in Ukraine which commemorates the soldiers of the Red Army killed in the Second World War.4 Sinkova fried eggs over the Eternal Flame to draw attention to the Ukrainian government’s wasteful use of natural gas as part of the memorial, which could have been used to remedy the poor living standards of veterans. She was accompanied by three other members of the artistic group ‘St Luke Brotherhood’, who filmed the act and subsequently posted it on the internet. The background music of the video was the Soviet song, ‘The Battle is Going Again’, devoted to ‘the victory of the 1917 revolution and optimism about the future of the communist regime’.5 It was also accompanied by a statement criticising the government’s mismanagement of resources.6 While two police officers commented that her behaviour was inappropriate, Sinkova was only arrested after the video provoked several complaints to the police.7
Part II: Examining the Definition, Nature and Purpose of the Act
Contrary to the ECtHR’s ruling, this section will (1) argue that the act constituted a protest, not desecration, under Ukrainian law, (2) challenge the majority’s approach to separate the act from Sinkova’s political commentary and (3) develop an alternative defence that the act should be protected under Article 10 because it is political satire.
2.1 Defining ‘Desecration’
Article 297 of Ukraine’s Criminal Code criminalises the ‘violation of a tomb or other burial places’, specifying that a violation of the ‘Tomb of the Unknown Soldier’ is punishable by the restraint of liberty for three to five years, or imprisonment for the same term.8 The applicant’s defence had a two-pronged approach to address the claim of desecration. Firstly, she argued that the vague wording of Article 297 made it far from obvious that her actions amounted to desecration of a tomb.9 Secondly, she argued that the prosecution had not met the mens rea requirement, voiding the conviction.10
The term ‘violation’ in Article 297 does not specify an actus reus, resulting in an ambiguous definition of desecration. In light ofthis, the applicant submitted that Section 2 of Ukraine’s Burial and Funeral Business Act of 2003 should be applied, necessitated by the doctrine of lex specialis. Section 2 specifically requires the intention to ‘defile the family or social memory of a deceased or to show contempt for a burial place, or social and religious principles and traditions in that area’.11 Relying on this Act, the applicant argued the prescribed intention had not been proven. Sinkova maintained that her intention was to criticise the government’s mismanagement of resources and failure to adequately provide for surviving war veterans. The statutory test establishes that to satisfy the criteria for desecration, the contempt must be specifically targeted at the burial place. Although the Eternal Flame was used as a medium to express contempt, it was not the target of contempt itself.
Even though the ECtHR did not accept the application of the Burial and Funeral Business Act of 2003, desecration under Ukrainian law still requires both actus reus and mens rea elements. Regarding the latter, the offending act must ‘amount to contempt for the memory of the deceased’, in which the guilty person realises that their actions ‘will cause moral suffering to others and violate the moral foundations of society in respect of attitudes to the dead’.12 Sinkova maintains that her act was intended to be a political protest, not the desecration of a tomb, arguing that:
‘The eternal flame is not a grave, it’s a propaganda memorial for a totalitarian communist regime [the former USSR]. It is the biggest desecration of the memory of the victims of a terrible war. If [my performance] was a desecration, it was a desecration of a Soviet propaganda object, not soldiers’ graves.’ 13
Sinkova intended to elucidate what she perceived to be the immorality of the Ukrainian government’s failure to adequately provide for veterans, rather than cause any moral suffering herself. Accordingly, the act should have not been treated as desecration under the meaning of Article 297 of the Ukrainian Criminal Code. Although the Ukrainian court did convict Sinkova, the ECtHR should have recognised that this conviction was not Convention-compatible. As prescribed in the ECHR, the exercise of the freedom of expression may be subject to restrictions, such as for the ‘protection of health or morals’.14 The question of whether the act was so immoral that it warranted government intervention is central to this case. The Pecherskyy Court, which was the court of first instance, held that by committing an act that showed ‘disrespect for the burial place of the Unknown Soldier and for the public tradition of honouring the memory of soldiers who perished (…) and by subsequently presenting those actions as a protest, [Sinkova] has tried to escape social condemnation of her conduct and criminal liability for the offence’.15
The ECtHR had to determine whether protesting at the Eternal Flame offended the memory of victims of a mass atrocity, seeing as the Eternal Flame is dedicated to the soldiers of the Red Army that died in the Second World War. It is difficult to argue that Sinkova should have reasonably anticipated that the act constitutes a moral violation, considering that she did not actively disrespect the memory of the soldiers and intended to support veterans by criticising the government’s lack of support. Even the two police officers, who commented that her behaviour was inappropriate, did not warn her of the potential criminality of her actions.16 The act was meant to criticise the poor treatment of surviving war veterans; it was an act of solidarity, not contempt.
However, Sinkova chose to protest about a particularly sensitive object; a major focus in this case was not the act itself, but its effect on the public. The margin of appreciation given to national courts needs to be considered, as it requires, inter alia, that national authorities’ interference is proportionate to a ‘pressing social need’.17 It could be argued that the act was offensive given the Eternal Flame’s status as a war memorial, justifying the government’s interference. However, it is important to note that a key component of the act was posting the video footage on the internet with the intent of satirising and criticising the government. The act needs to be contextualised to understand that Sinkova was advocating for the social improvement of veterans, aiming to offend the government rather than the memory of soldiers. Whether or not the families of deceased soldiers are offended, the ECtHR should consider the broader context of a protest to determine whether an interference with a citizen’s freedom of expression is justified.
This argument finds support in Perinçek v Switzerland,18 which determined that an individual publicly denying the Armenian genocide did not insult the memory of Armenian victims, as the applicant did not express contempt or hatred for the victims and did not ‘use abusive terms with respect to them’.19 In Sinkova, there was also no contempt or abuse towards the deceased soldiers. While some may argue that the act itself could be seen as abusive even if explicitly abusive language was not used, the key point is that there was still never any negative expression towards the deceased soldiers. Korostelina described the act as a ‘divergence insult’, arguing that Sinkova’s protest was an ideological opposition to the imposition of Soviet history and ideas of totalitarianism.20 There is a real risk in narrowing the freedom of expression to such a degree that it does not protect any protest that can be construed as offensive.
The invocation of the protection of morals to limit freedom of expression is a fine line that the ECtHR needs to be careful not to overstep. As Nowlin argued, the ECtHR’s decisions to uphold interventions restricting citizens’ freedom of expression in the name of protecting morality are ‘problematic’, as they ‘rely logically upon an undefined, ill-defined, or simply contentious notion of morals’, and conflict with the ECtHR’s ‘commitment to “pluralism, tolerance and broadmindedness”’.21 By legally protecting ‘morals’ and ‘feelings of veterans’,22 the ECtHR sets a perilous precedent that could act as a convenient legal excuse for the criminalisation of certain acts, which would otherwise not be compliant with the ECHR, for future governments to arbitrarily limit the freedom of expression in defence of morals.
2.2 An Inherently Political Act
The second key issue that needs to be addressed is whether Sinkova was convicted on account of frying eggs above the Eternal Flame or on account of the political intentions of the act. The majority’s reasoning was that Sinkova had only been convicted on account of frying the eggs, not for ‘expressing the views that she did’.23 This was supported by the fact that the video taken of the act, which was accompanied by a politically-charged statement, was not part of the charges. However, it is crucial to note that a conviction had only been made following the posting of the video and the relevant complaints. The majority’s approach essentially separates the act from its political intention.
However, this separation of the act and politics is arguably erroneous. The majority’s approach of completely stripping the performance of its meaning is incompatible with ECtHR case law. In Murat Vural v Turkey,24 the ECtHR reviewed the case of a Turkish national who had poured paint on a statue of a former Turkish President. The ECtHR found a violation of Article 10 and explicitly noted that an assessment by the ECtHR ‘must be made’ of the ‘purpose or the intention of the person performing the act or carrying out the conduct in question’.25 When applying this rationale to Sinkova, the majority’s reasoning seems incongruent. Although the intention to express a view cannot be invoked as an unconditional excuse for a criminalised act, Vural establishes that the applicant’s intention has to be considered to contextualise the act. In Sinkova’s majority judgment, there was no assessment of the applicant’s intention, resulting in an attempt to isolate her act from its inherently political nature that is inconsistent with previous case law. By circumventing the established legal test in Vural without adequate justification, the Sinkova approach could empower future court rulings to depart from precedent, specifically in Article 10 cases. Evidently, past ECtHR decisions have contextualised political acts in their political landscape when determining their criminality. This is not to say that Article 10 should serve as blanket impunity, excusing horrific acts under the pretence of political criticism. Rather, it is critical for the ECtHR to consider the nuances of a protest, especially of a political nature, when examining alleged violations of the freedom of expression.
Even more notably, the majority fails to cite the unanimous judgment in Tatár and Fáber v Hungary,26 which involved a ‘provocative performance’ that was filmed ‘to send a message’ through social media.27 In Tatár and Fáber, two protesters had been prosecuted for hanging dirty laundry on the fence of the Hungarian Parliament, as a protest ‘to hang out the nation’s dirty laundry’.28 the ECtHR in Tatár and Fáber rejected the government’s argument that the protestors had only been convicted for their failure to respect the regulatory offence of abusing the right to peaceful assembly and not for expressing their political beliefs. It held that because the performance was a form of ‘artistic and political expression’, any restriction made must be subjected to the ECtHR’s highest scrutiny and be ‘convincingly established’.29
It is difficult to understand why Tatár and Fáber was not applied in Sinkova, since both were artistic and political performances against the government. The majority’s ruling has made ECtHR case law less clear and predictable, thus failing to follow fundamental principles to the rule of law.30 However, the main issue with the Sinkova judgment is not its departure from precedent (although it does create ambiguity in the ECtHR’s position), but its failure to properly consider the political backdrop of Sinkova’s act and protect her Article 10 right. The freedom of expression is central to any democracy, and even an administrative sanction, ‘however mild,’ can have ‘an undesirable chilling effect on public speech’.31 Even though the defendants in Tatár and Fáber were only fined 80,000 Hungarian forints (approximately £186) for the minor regulatory offence, the ECtHR still felt the need to intervene in an ostensibly harmless conviction to protect the principle. Contrastingly, in Sinkova, the principle was disregarded completely even though its violation had an actual detrimental effect on the claimant; Sinkova served three months in pre-trial detention, which effectively constituted imprisonment.
Instead, the majority relied upon a single admissibility decision, namely Maguire v United Kingdom,32 as its sole authority. There are several key factual differences that justify a distinction between the two cases. Maguire concerned an individual who was arrested for displaying the initials of a terrorist organisation on a jumper at a football match prone to ‘sectarian violence’.33 The ECtHR crucially held that Maguire was not protected under Article 10 because his jumper was likely to ‘give rise to a substantial risk of violence’.34 In terms of distinction, firstly, there was no risk of public disorder in Sinkova. The police officers at the scene had not considered it necessary to interfere, and the purpose of the prosecution in Sinkova had been the ‘protection of morals and others’ rights’ rather than the defence of public safety.35 Secondly, Sinkova’s intention was to spark conversation on a matter of public concern, whereas Maguire wore the jumper to incite disorder. It is difficult to see how Maguire is fully relevant and applicable to Sinkova, when the former concerns a substantial risk of violence, and the latter concerns a peaceful and non-violent form of expression.
2.3 The Satirical Nature of the Act
Sinkova’s performance involved not only frying eggs over the Eternal Flame, but the subsequent distribution of the respective video and accompanying text. The performance was intended to highlight the inherent irony of the Ukrainian government maintaining a costly memorial commemorating perished soldiers while failing to adequately provide for existing war veterans. Sinkova used a Soviet song expressing optimism about the communist regime, while commenting on the incompatibility of national pride regarding the Second World War with the dire living conditions of surviving war veterans. The dissenting opinion argued that the filming and dissemination of the video are a necessary part of the satirical performance. Any Article 10 claim relating to the criminalisation of a specific act must consider its content and broader political meaning. Hence, this section of the piece aims to develop this defence and argue that because the act was satirical, it should have been entitled to additional protection of Sinkova’s Article 10 right.
As the ECtHR observed in Vereinigung Bildender Künstler v Austria,36 ‘satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right [or anyone else’s right] to such expression should be examined with particular care’.37 Once again, there is a burden of proof on Ukraine to justify that its law’s proscription of satirical acts is ECHR-compatible. Satire is protected under ECtHR case law because the freedom of expression is a fundamental cornerstone in any democratic society; citizens should be able to voice dissent in ways that do not only pander, but provoke.
The ruling in Sinkova appears to be inconsistent with the ECtHR’s previous position, which has been that ‘there is little scope under Article 10(2) of the Convention for restrictions on political speech or on debate on matters of public interest’ (Sürek and Özdemir v Turkey).38 Sürek and Özdemir was set in a journalist context, but this protection also extends to the public, and hence, to Sinkova. Furthermore, the ECtHR confirmed the right to satire in Eon v France,39 which concerned a private citizen. In this case, a protester held up a sign saying ‘Casse toi pov’con’ (translated: ‘Get lost, you sad prick’)40 at then-FrenchPresident Nicolas Sarkozy. It could be argued that Sinkova should be differentiated from Eon because the former concerned an attack on the government by involving a monument of cultural significance, whereas the latter was an attack on a politician who cannot be said to constitute the same degree of cultural significance. Nevertheless, although a political leader is not completely analogous to the Eternal Flame, the ECtHR in Eon emphasised that citizen participation in political debates merits broad protection, regardless of the target of the satirical statement. Sinkova also concerns a private citizen who, through non-violent means, participated in political debate criticising the government. While broad protection does not mean unlimited protection, the majority’s ruling in Sinkova undermines the ECtHR’s previous case law by narrowing the protection afforded in relation to Article 10.
It was not Sinkova’s opinion itself that shocked, but the way in which it was expressed. As the ECtHR has emphasised, satire is a form of artistic expression and social criticism, which, because of its inherent exaggeration, is meant to provoke and cause commotion. The majority glibly argued that ‘there were many suitable opportunities for the applicant to express her views (…) on the use of natural gas or responding to the needs of war veterans’.41 However, this view ignores the point that the inherent nature of satire is to create controversy, including possibly being irreverent to communicate critique. As the ECtHR’s dissenting opinion observed:
‘[I]t is not surprising that those who wish to highlight a particular cause or voice an opinion would have recourse to those symbolic acts and demonstrations which are likely to gather a greater degree of attention and trigger a wider debate than might have been achievable with more conventional and established forms of protest.’42
Part III: Implications of the ECtHR’s Ruling
The ECtHR’s ruling in Sinkova has alarming implications for the freedom of expression. By ignoring relevant case law, the ECtHR has limited the scope of protection of the freedom of expression. The majority’s opinion that Sinkova’s alleged breach of criminal law justifies interference with her freedom of expression is problematic. As Ó Fathaigh and Voorhoof observed, the majority holding that Sinkova should have protested peacefully, reverses the burden of proof: ‘it is not up to the individual to show that breaching the law was necessary, it is up to the State to justify that applying the criminal law was necessary in a democratic society’.43
In previous decisions, the ECtHR’s position was that any measures interfering with the freedom of assembly and expression ‘other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words may appear to the authorities – do a disservice to democracy and often even endanger it’ (Stankov and the United Macedonian Organisation Ilinden v Bulgaria).44 It seems incompatible with the ECtHR’s previous position that the interference in Sinkova was justified even though it did not incite violence or reject democratic principles. The outcome in Sinkova is wrong, both as an isolated ruling in which the majority’s reasoning is deficient, as well as in the larger context of the ECtHR’s settled approach to the freedom of expression.
Sinkova was referenced in the subsequent case Handzhiyski v Bulgaria,45 which concerned an individual who placed a red Santa Claus cap and a red sack on an already-vandalised statue of a former political leader. The ECtHR distinguished Sinkova by reasoning that although the monument in Handzhiyski was political, it was not a memorial commemorating victims. It accepted that the applicant used the monument ‘as a symbol of the political party that he wished to criticise’, meaning that it can ‘hardly be said that his act was meant to show disdain for deep-seated social values’.46 The judgment specifically notes that ‘acts intended to criticise the government or its policies, or to call attention to the suffering of a disadvantaged group cannot be equated to acts calculated to offend the memory of the victims of a mass atrocity’.47 This comment was an implicit reference to Sinkova, raising the question of whether the nature of the Eternal Flame warrants special consideration. However, Sinkova was advocating on behalf of surviving war veterans, which rebuts the idea that she sought to disrespect the military. Support for veterans (namely, ex-military personnel) can be equated with support or, at the very least, respect for the military.
The ECtHR in Handzhiyski ultimately established that acts which do not destroy or physically impair monuments deserve nuanced consideration regarding the nature and intention of the act, the message conveyed and the social significance of the monument.48 This limited the scope of Sinkova, and incrementally broadened the protection of freedom of expression. Despite this limitation, Sinkova still sets a problematic precedent as it could empower future judges to ignore the political context of an act, diminishing the freedom of citizens to express their views without fear of disproportionate government interference.
Conclusion
This case note critically examined the legal reasoning applied in Sinkova against the backdrop of ECtHR case law, ultimately concluding that Sinkova’s Article 10 right to freedom of expression had been violated. It argued that the majority’s judgment is largely incompatible with the ECtHR’s previous rulings regarding Article 10. By examining the definition, nature and purpose of Sinkova’s act, it deconstructed the legal issues and the majority’s approach, while also referencing relevant ECtHR case law and exploring an alternative legal approach. Finally, it considered the implications of this ruling and how its citation in Handzhiyski has limited its scope. Although Sinkova’s impact is more restricted, it has nonetheless set a dangerous precedent for the freedom of expression by departing from the ECtHR’s established position on Article 10 and creating ambiguity in ECtHR case law. It will be interesting to see if future rulings will uphold the majority’s ruling or continue to limit its authority by following the precedents that were largely ignored in this case.
I would like to thank Dr Sarah Trotter and Dr Kai Möller, as well as the editors of the LSE Law Review, for their invaluable comments and insight.
[1] Sinkova v Ukraine App no 39496/11 (ECtHR, 7 February 2018).
[2] ibid para 67.
[3] ibid 26.
[4] ibid 7.
[5] ibid para 8.
[6] ibid para 7.
[7] ibid paras 5-40.
[8] Criminal Code of Ukraine 2001 (amended in 2009), art 297.
[9] Sinkova (n 1) para 54.
[10] ibid para 91.
[11] Burial and Funeral Business Act 2003 (Ukraine), s 2.
[12] Mykola I. Melnik and Mykola I. Khavroniuk (eds), Scientific and Practical Commentary to the Criminal Code of Ukraine (7th edn, Yuridichna Dumka 2010).
[13] ‘How far is too far? Artist jailed for frying eggs on Kiev eternal flame’ (France24 Observers, 18 April 2011) <https://observers.france24.com/en/20110418-artist-jailed-frying-eggs-kiev-eternal-flame-ukraine-russia> accessed 12 December 2021.
[14] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) art 10.
[15] Sinkova (n 1) para 33.
[16] ibid para 7.
[17] Steven Greer, The Margin of Appreciation: Interpretation and Discretion Under the European Convention on Human Rights (Council of Europe Publishing 2000) 10.
[18] Perinçek v Switzerland App no 27510/08 (ECtHR, 15 October 2015).
[19] ibid para 233.
[20] Karina V Korostelina, Political Insults: How Offenses Escalate Conflict (Oxford University Press 2014) 68.
[21] Christopher Nowlin, ‘The Protection of Morals under the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2002) 24(1) Human Rights Quarterly 264.
[22] Sinkova (n 1) paras 98 and 110.
[23] ibid para 108.
[24] Murat Vural v Turkey App no 9540/07 (ECtHR, 21 October 2014).
[25] ibid para 54.
[26] Tatár and Fáber v Hungary App nos 26005/08 and 26160/08 (ECtHR, 12 June 2012).
[27] ibid para 39.
[28] ibid para 6.
[29] ibid para 33.
[30] Tom Bingham, The Rule of Law (Penguin Books Ltd 2010) 67.
[31] Tatár and Fáber (n 25) para 41.
[32] Maguire v United Kingdom App no 58060/13 (ECtHR, 3 March 2015).
[33] ibid para 54.
[34] ibid para 53.
[35] Sinkova (n 1) para 98.
[36] Vereinigung Bildender Künstler v Austria App no 68354/01 (ECtHR, 25 January 2007).
[37] ibid para 33.
[38] Sürek and Özdemir v Turkey App nos 23927/94 and 24277/94 (ECtHR, 8 July 1999).
[39] Eon v France App no 26118/10 (ECtHR, 14 March 2013).
[40] ibid 1.
[41] Sinkova (n 1) para 110.
[42] ibid 24.
[43] Ronan Ó Fathaigh and Dirk Voorhoof, ‘Conviction For Performance-Art Protest at War Memorial Did Not Violate Article 10’ (Strasbourg Observers, 19 March 2018) <https://strasbourgobservers.com/2018/03/19/conviction-for-performance-art-protest-at-war-memorial-did-not-violate-article-10/> accessed 13 December 2021.
[44] Stankov and the United Macedonian Organisation Ilinden v Bulgaria App nos 29221/95 and 29225/95 (ECtHR, 2 October 2001) para 97.
[45] Handzhiyski v Bulgaria App no. 10783/14 (ECtHR, 28 January 2014).
[46] ibid para 56.
[47] ibid para 55.
[48] ‘Handzhiyski v. Bulgaria’ (Global Freedom of Expression: Columbia University) <https://globalfreedomofexpression.columbia.edu/cases/handzhiyski-v-bulgaria/> accessed 13 December 2021.
Amadea Hofmann
LLB (LSE) ’24 and Junior Notes Editor of the LSE Law Review 2021-22