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impossible to determine their concrete weights (e.g., “minute” or “large”) in a particular case, as we do not have a common frame of reference to undertake measurement.581 Such a frame can only be found in the categorical approach and in the notion of rights.

Second, by considering a proportionate alternative, the Court refuted its own findings reached at the suitability and necessity stages. For now it proceeded to second-guess the military commander in his professional assessment of the levels of security achieved by this or that route of the fence (for example, by saying, contrary to the views of the commander, that “it [was] possible to satisfy the central security considerations while establishing a fence route whose injury to the local inhabitants

[was] lesser”582). Moreover, now it did not hesitate to endorse the alternative routes suggested by the Council for Peace and Security583 – something it had expressly rejected earlier.584

Yet, this contradiction in the Court’s reasoning is natural, since an assessment of suitability and necessity of rights limitations immediately moves the question into balancing. For example, as soon as the Court finds that there is a way to build the fence that would be less restrictive for the petitioners (that is, if it finds that the necessity sub-test is not passed), it immediately faces an “irrelevance” objection by the government. A lesser burden on the petitioners comes at a price of less effective military action, and therefore, so the argument goes, the Court’s conclusion disregards military and political realities on the ground. In order to rebut this argument, the Court would need to resort to balancing between the marginal increase in the protection of rights holders and the marginal reduction in the effectiveness of a government policy. It is clear that the Court is hereby going in logical circles, so

581See above, p. 128-129 of this study.

582Ibid., § 49.

583Ibid., § 61.

584Ibid., §§ 57, 58.

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that at the next step it would have to determine necessity again, this time looking at whether an alternative restrictive measure amounts to a minimal impairment.585

Third (and building on my previous two points), the very notion of a

“proportionate alternative” was logically flawed insofar as the determination of proportionality of a disputed governmental act was made dependent, in turn, on proportionality of some other measure.586 This means that, in principle, the arguments of the parties in the Beit Sourik case could have continued further, now concentrating on the proportionality of alternative routes suggested by the petitioners. But determining proportionality of each of those routes would require a comparison with other routes, including the original one. Evidently, none of the compared alternatives can claim to be an undisputed standard of reference, the one that other alternatives could be evaluated against. Insofar as proportionality analysis relies on the criterion of “proportionate alternative”, it is circular and cannot, by definition, provide any legal solution.

Murat Vural v. Turkey

The judgment of the European Court of Human Rights in the case of Murat Vural v. Turkey (“Murat Vural case”) is interesting because of the debate and the split between the majority and the minority not only on the outcome of the case but also on the methodology of proportionality analysis.

The applicant was convicted and sentenced to more than 13 years imprisonment for pouring paint on statues of Mustafa Kemal Atatürk, the founder and the first President of the Republic of Turkey. The applicant claimed he had carried out his

585See Möller K. The Global Model of Constitutional Rights (Op. cit.), p. 193-199; Urbina F. Op. cit., p. 142-143 (arguing that if a less restrictive measure is less effective, more expensive or affecting rights of third parties, this means that the criteria of “suitability” and “necessity” are insufficient to decide the case because “[i]t requires a normative assessment of the kind that is performed at the balancing stage”).

586On the notion of “proportionate alternative”, see: Barak A. Op. cit., p. 352-356. Contrary to Barak’s opinion, reliance on “proportionate alternative” to assess proportionality not only does not narrow the matter but instead multiplies it ad infinitum. See also: Möller K. The Global Model of Constitutional Rights (Op. cit.), p. 196 (arguing that “[w]hether a policy is reasonable can only be assessed by comparing it to all other possible policies[; i]n particular, it cannot be assessed by comparing it only to the alternative policy of non-interference” (emphasis in original. – G.V.)).

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actions to express his “lack of affection” for Atatürk and also his dissatisfaction with the Kemalist ideology and those running the country in accordance with that ideology.587 The Court dealt with the applicant’s complaint under Article 10 of the Convention (“Freedom of expression”) in the following way. First, the Court found that the applicant’s actions were a form of expression and fell within the ambit of Article 10 of the Convention;588 second, the Court recognized that prosecution of the applicant for “insulting Atatürk’s memory” was prescribed by law and pursued the legitimate aim of “protecting the reputation or rights of others” (Article 10, paragraph 2, of the Convention);589 third, the Court concluded that the interference with the applicant’s freedom of expression was not “necessary in a democratic society” (Article 10, paragraph 2, of the Convention) because “peaceful and nonviolent forms of expression should not be made subject to the threat of imposition of a custodial sentence”, and the sentence of 13 years imprisonment imposed on the applicant was of “extreme severity” and “grossly disproportionate”.590 The Court, therefore, initially defined the content of a right and the opposing social aim at stake (first and second steps; the categorical approach), and then struck a balance between them (third step; the balancing approach).

The Court’s balancing formula was, however, vulnerable. First, the factors on the scales (the applicant’s actions vs. the length of his sentence) were incommensurate. Second, the characterization of the applicant’s actions as “peaceful and non-violent” meant that the very formula-setting involved contested assumptions about the value of compared factors. In fact, the respondent government considered vandalism against statues to be a form of violence that fell outside the scope of Convention protection,591 and the very question was what abstract value

587Murat Vural v. Turkey, app. no. 9540/07, 21 October 2014. §§ 11, 18, 22, 40, 54.

588Ibid., §§ 40-56.

589Ibid., § 60.

590Ibid., §§ 66, 68.

591Ibid., § 43.

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(weight) should such forms of expression be given in a democratic society. Assumptions that the Court incorporated into its balancing formula prejudged the outcome of the case without any substantive elaboration. In his Partly Concurring and Partly Dissenting Opinion, Judge András Sajó, joined in part by Judges Nebojša Vučinić and Egidijus Kūris, observed that the Court relied on a “crude sense of justice” and decided the issue of proportionality using “some mysterious scale”: “[I]t is not clear what makes the punishment [in the case at hand] disproportionate. My gut feeling indicates that the sanction is disproportionate, but in regard to what and in which sense?”592

Judge Sajó rejected the “standard” proportionality methodology adopted by the

Court in the discussed case, a methodology that relied on balancing. For him, that methodology was a “straightjacket” that unduly restrained the Court and did not ensure an appropriate level of protection for freedom of expression against restrictive national legislation.593 Instead, Judge Sajó suggested an “enhanced” approach to proportionality analysis, looking at “the means/end relationship of the legislation and the objective value of the intended aim”.594 To use the terminology of my study, it was the categorical approach. Using this methodology, Judge Sajó concluded that criminalization of insults to memory of a political figure in the relevant national law did not pursue a legitimate end or, in the alternative, the means chosen by the legislature (mandatory imprisonment) were not the least restrictive possible.595

But the “enhanced” version of proportionality was also not self-sufficient. First of all, the declared aim of the limitation (“protection of the reputation or rights of others”) raised a conflict between two rights: freedom of expression (Article 10 of the Convention) and the right to respect for private and family life (Article 8 of the

592Murat Vural v. Turkey, app. no. 9540/07, 21 October 2014. Partly Concurring and Partly Dissenting Opinion of

Judge Sajó. P. 19-20.

593Ibid., p. 19.

594Ibid., p. 21.

595Ibid., p. 22-26.

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Convention). Judge Sajó argued that an interest in the protection of one’s “feelings” and “deeply held convictions” from “inconvenience” may not be elevated to the status of a right, and that in any event “not all rights are created as equal”.596 Yet, the notion of a right as such was not enough to rank rights in terms of their abstract importance as well as to overrule a claim by a particular individual that vandalism against statues affected his/her personal rights – reputation, dignity and identity as a member of a (national) group.597 If we take Judge Sajó’s argument to mean that not all such feelings and not always may be protected on a par with freedom of expression, then the categorical approach cannot determine in the abstract which feelings shared by members of which groups should be entitled to legal protection and what weight they should be accorded in the circumstances of a particular case. Only the balancing approach can do all this.

Let us suppose, though, that references to the rights of other individuals, allegedly insulted by the applicant’s actions, were not found to be genuine; instead, insults to Atatürk’s memory were criminalized because of certain public order considerations – such as to protect “public sensitivities”598 or “nationhood and national unity”.599 This would enable Judge Sajó to insist on giving priority to freedom of expression vis-à-vis any such aims, due to the “superior value[]” of rights guaranteed by the Convention.600

At this point, however, the problem of reversibility would arise. It stems for the fact that the right to freely express one’s opinion is itself of social nature. In an essay provocatively entitled “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too” Stanley Fish remarks that expression, by definition, cannot be free in

596Ibid., p. 22-23.

597ECtHR case law confirms that Article 8 is applicable in such contexts, and that the Court considers conflicting rights under Articles 8 and 10 of the Convention to be “in principle entitled to equal respect”. See, e.g.: Perinçek v. Switzerland [GC], app. no. 27510/08, 15 October 2015. §§ 227-228. See more above, footnote 528.

598Murat Vural v. Turkey. Partly Concurring and Partly Dissenting Opinion of Judge Sajó. P. 22, 27.

599The government claimed this aim in the famous US flag burning case. See: Supreme Court of the United States. Texas v. Johnson // 491 U.S. 397 (1989).

600Murat Vural v. Turkey. Partly Concurring and Partly Dissenting Opinion of Judge Sajó. P. 23.

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the sense of freedom from the social environment in which expression takes place. He says that “independently of a community context … expression would be at once inconceivable and unintelligible”,601 which means, in turn, that context, with all its inherent limitations, is constitutive of expression: “Without restriction, without an inbuilt sense of what it would be meaningless to say or wrong to say, there could be no assertion and no reason for asserting it”.602 This is why the very existence of freedom of expression and its inviolability are usually explained by social reasons such as, for instance, the value of a “marketplace of ideas”603 or, to quote Judge Sajó himself, a belief that “no democratic society can exist without free expression on political matters”.604 But this means that the right to freely express one’s opinion and the aims invoked to restrict that right become considerations of the same kind. A right is not a “superior value” anymore. Limitation of a right becomes possible if its exercise is no longer compatible with the purposes for which it is recognized. In fact, Judge Sajó acknowledges this insofar as he admits it might be appropriate to criminalize an expression of opinion where “insult to memory amounts to a call to violence or hatred against identifiable individuals”.605 Yet, an abstract choice in favor of this or any other relation between those values – a choice of where to draw a line between the value of freedom of expression and the protection of “public sensitivities” – does not follow directly from the notion of a social purpose.606

601Fish S. There’s No Such Thing as Free Speech, and It’s a Good Thing, Too // There’s No Such Thing as Free Speech and It’s a Good Thing, Too. N.Y., Oxford, 1994. P. 102-119, 108.

602Ibid., p. 103. See also: Ibid., p. 106-107: “[F]reedom of expression would only be a primary value if it didn’t matter what was said… There are contexts like that, a Hyde Park corner or a call-in talk show where people get to sound off for the sheer fun of it. These, however, are special contexts, artificially bounded spaces designed to assure that talking is not taken seriously. In ordinary contexts, talk is produced with the goal of trying to move the world in one direction rather than another… [I]f you are engaged in some purposive activity in the course of which speech happens to be produced, sooner or later you will come to a point when you decide that some forms of speech do not further but endanger that purpose”.

603Supreme Court of the United States. Abrams v. United States // 250 U.S. 616, 630 (1919). Dissenting Opinion of Justice Holmes.

604Murat Vural v. Turkey. Partly Concurring and Partly Dissenting Opinion of Judge Sajó. P. 25.

605Ibid., p. 24.

606Putting the disputed expression into a class of speech that claims special protection (e.g., “political speech” – see: Murat Vural v. Turkey. Partly Concurring and Partly Dissenting Opinion of Judge Sajó. P. 25) does not per se resolve the dispute, since that same expression can at once belong to some other, opposite category (“hate speech” or speech “run[ning] counter to the fundamental values of the Convention” – see, e.g.: Article 17 of the Convention;

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Therefore, in the case at hand, the categorical approach brought us back to balancing, so that we could determine the scope of competing rights and aims in the specific circumstances (proportionality stricto sensu).607

ECtHR case law confirms that the Court’s proportionality analysis in freedom of expression cases is “highly context-specific”.608 Notably, the Court’s balancing methodology in these cases does not involve “weighing” (as the Supreme Court of Israel did in the Beit Sourik case). Instead, the Court determines whether a rights limitation is lawful using a list of factors (such as the nature of a statement or other expressive act; the context in which it was made; factors of time and geography, etc.).609 This approach is conceptually problematic to the extent that, firstly, the relevance of chosen factors is disputable;610 secondly, and more importantly, each of the factors relied upon the Court does not speak for itself – it supports neither the protection of a right nor its limitation. Factors acquire their meanings only in the light of a particular value perspective on freedom of expression.611 For example, the ECtHR considers that if expression is made in a context that could create a risk of

Garaudy v. France [dec.], app. no. 65831/01, 24 June 2003). The categorical approach is unable to justify a choice between two opposing categories. To what extent an expression belonging to several categories should enjoy protection will depend on the factual circumstances – whom does this expression harm and what kind of harm does it inflict? how probable is it that negative consequences will actually follow? etc.

607The necessity sub-test cannot solve the described problems of the categorical approach. In the Murat Vural case, there were two ways to justify that prosecution of the applicant was not the least restrictive means: 1) prosecution for “insult to memory” was superfluous because the applicant could have been prosecuted for vandalism (Murat Vural v. Turkey. Partly Concurring and Partly Dissenting Opinion of Judge Sajó. P. 24); 2) imprisonment for “insult to memory” was unnecessary because other, less severe kinds of responsibility and punishment were not exhausted (Ibid., p. 23). The first argument effectively denies the legitimacy of the declared aim (the possibility of prosecution for insult as such rather than for damage to property). The second argument raises a question of whether narrowing a range of sanctions that the government is entitled to enforce in order to fulfill a legitimate aim is justified for the sake of reducing the applicant’s punishment. On the first issue, we return to the sub-test of legitimate aim. On the second issue, we need to move to balancing (proportionality stricto sensu).

608Perinçek v. Switzerland [GC], app. no. 27510/08, 15 October 2015. § 208.

609Ibid., §§ 196-282.

610See, e.g.: Perinçek v. Switzerland [GC], app. no. 27510/08, 15 October 2015. Joint Dissenting Opinion of Judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris. §§ 6-7 (disputing the relevance of the geographical factor relied on by the Court).

611Cf. Judge Sajó’s quite telling remark that, in the Mural Vural case, “[t]he means are excessive here in the light of the end, among other things because the end itself is problematic; the end in itself is simply not worth the inevitable sacrifice of freedom of expression resulting from the means chosen, but also from any less radical means” (Murat Vural v. Turkey. Partly Concurring and Partly Dissenting Opinion of Judge Sajó. P. 26) (emphasis added. – G.V.).

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“serious tensions” in the society or “reopen the [past] controversy”, then it is a factor supporting a limitation of a right under Article 10 of the Convention.612 Such an interpretation rests on an assumption that public discourse valued within the Convention system must invariably be rational, tranquil and non-controversial, while its opposite threatens a democratic society. Such a value perspective is, of course, subjective and challengeable: should we rather think that an expression “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger”?613 Any why, if a provocative or emotional opinion led to a disturbance, should peace in the society be maintained by aborting the discussion rather than by preventing any acts of violence by those who consider themselves offended?

As we can see, since the chosen factors are empty, their significance can be challenged in a particular case by reference to the substance of rights and of social end behind their limitations. Yet, since interpretation of these rights and aims is itself a matter of disagreement, further balancing is possible only by adding new factors to the list (e.g., history of a particular society). Every new factor, in turn, would make sense only in the light of particular values, and could be challenged using the opposite interpretations of rights and aims.614 As a result, the “list of factors” analysis of proportionality stricto sensu turns out to be circular.

612Perinçek v. Switzerland [GC], app. no. 27510/08, 15 October 2015. §§ 153, 249.

613Supreme Court of the United States. Texas v. Johnson // 491 U.S. 397, 408-409 (1989).

614See, e.g., the disagreement between the majority and the minority in Perinçek v. Switzerland on the “time factor”

– whether the need for government interference with statements about historic events (genocide denial) recedes with the passage of time: Perinçek v. Switzerland [GC], app. no. 27510/08, 15 October 2015. §§ 249-250 (yes, it does); Joint Dissenting Opinion of Judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris. § 8 (no, it does not). In cases analogous to Mural Vural, one might expect an argument by the government that, as time goes by, the need for regulation of matters pertaining to protection of historic memory not only does not recede but, to the contrary, increases.

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proportionate. For example, in the Beit Sourik case just any imaginable route of the separation fence in the West Bank could have been found to be a lawful limitation of the rights of local residents (or, to the contrary, the whole construction project could have been found unlawful, e.g. on the ground that it, in fact, pursued an illegitimate aim – the annexation of Palestinian areas to Israel). Equally, disagreements between ECtHR judges in the Murat Vural case were the result of neither incompetence nor bad faith but rather followed naturally from the very design of the principle of proportionality.

Second, the mutual dependence of the balancing and the categorical approaches turns the use of the principle of proportionality into an endless referral of these approaches to each other: balancing transfers us to rights, aims and their interpretation; an inquiry into a legitimate aim, suitability or necessity of a rightsrestrictive measure transfers us into proportionality stricto sensu. The analytical distinction between “categorical” (legitimate aim, suitability, necessity) and “balancing” (proportionality stricto sensu) elements of the proportionality test collapses. The popular image of proportionality analysis as a structured and transparent process turns out to be an illusion.

Moreover, the use of proportionality evidences a “strategy of evasion”: courts construe a balance in such a way so as to make the final outcome seem obvious and at the same time absolve them from the need to justify their choices on key issues that parties disagree about. In this chapter, examples of a “strategy of evasion” included the notions of “proportionate alternative” and “list of factors”. The problem with these notions is that they themselves lack justification. Firstly, it is a matter of quantity. Why did the court assign that much weight to a particular factor or an alternative rights-restrictive means? Secondly and more importantly, it is matter of quality. Why did the court rely on this set of factors or this alternative? And which way do these factors or these alternatives yield? (Does this factor support or refute the limitation of a right? Is this alternative less or more restrictive for a right?).