ECHR Article 35-3-b
No significant disadvantage
Applicability of no significant disadvantage admissibility criterion in freedom of expression case: inadmissible
Facts – The applicant was stopped in his car by police officers for not wearing a seat belt. A dispute ensued in which the applicant allegedly told the officers that he would not ‘descend to their level’. He was subsequently charged with insulting police officers in the course of their duty. He was convicted at first instance and fined. On appeal, however, the conviction was quashed and the criminal proceedings discontinued for a probationary period of one year. In addition, the applicant was ordered to pay EUR 125 to a local fostering service and EUR 25 in costs.
In his application to the European Court he complained of a violation of his right to freedom of expression under Article 10 of the Convention.
Law – Article 35 – 3 (b): The Convention did not limit the application of the ‘no significant disadvantage’ admissibility criterion to any particular right protected under the Convention. However, in cases concerning freedom of expression the application of this criterion had to take due account of the importance of that freedom and be subject to careful scrutiny by the Court. Such scrutiny should encompass elements such as the contribution made to a debate of general interest and whether the case involved the press or other news media.
The seriousness of an alleged violation had to be assessed by taking into account the applicant’s subjective perceptions and what was objectively at stake in the case. The Court was ready to accept that individual perceptions encompassed not only the monetary aspect of a violation, but also the general interest of the applicant in pursuing the case, and that the issue at stake in the instant case was clearly of subjective importance to the applicant. With regard to the objective aspect, however, the decision to conditionally discontinue the criminal proceedings did not amount to a conviction, and the information about the proceedings entered in the National Criminal Register would have been removed after 18 months. The applicant had not submitted any information indicating that the proceedings had been resumed during that period or that the information on the Register had affected him adversely in any tangible way. Furthermore, the financial implications (EUR 150 in aggregate) could not represent a particular hardship for the applicant, who was an entrepreneur. In sum, there were no objective grounds to hold that the applicant had suffered important adverse consequences as a result of the decision to conditionally discontinue the proceedings.
The subject matter of the complaint did not give rise to an important matter of principle (contrast, Berladir and Others v. Russia, 34202/06, 10 July 2012). It concerned an unfortunate verbal confrontation with no wider implications or public interest undertones which might raise real concerns under Article 10 of the Convention. As such, it could be distinguished from a case such as Eon v. France (26118/10, 14 March 2013, Information Note 161, in which the Court rejected a preliminary objection of lack of significant disadvantage having regard to the national debate in France on whether the offence of insulting the head of State should remain a criminal offence and the wider issue of the compatibility of that offence with the Convention).
In the circumstances, the applicant in the instant case had not suffered a significant disadvantage as a result of the alleged violation of the Convention. Since the remaining two elements of the admissibility requirement were satisfied (respect for human rights did not require an examination of the case and the case had been duly considered by a domestic tribunal) the application was inadmissible.
Conclusion: inadmissible (no significant disadvantage).
19219/07 – Legal Summary, [2014] ECHR 811
Bailii
European Convention on Human Rights
Human Rights, Crime
Updated: 17 December 2021; Ref: scu.535180
