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Freedom of Expression:

A Guide to the Interpretation and Meaning

of Article 10 of the European Convention

on Human Rights

Toby Mendel Executive Director Centre for Law and Democracy

Introduction

The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention or ECHR),^1 adopted in Rome on 4 November 1950, was a groundbreaking achievement in terms of advancing human rights, not only for Europe, but for the whole world. The European Convention was not the first international proclamation of human rights. The United Nations had adopted the Universal Declaration on Human Rights (UDHR) two years early, in December 1948,^2 and the preamble to the ECHR claims as its purpose the taking of “steps for the collective enforcement of certain of the rights stated in the Universal Declaration”.

But the European Convention advanced protection for human rights in two key ways. It was the first legally binding treaty on human rights, and Contracting States are formally required to respect its provisions. Even more importantly, it established an important implementation mechanism in the form of the European Court of Human Rights (European Court or ECtHR).^3 In the over 50 years of its existence,^4 the Court has played an absolutely central role in the implementation of the human rights scheme established through the European Convention.

The European Convention protects a wide range of basic human rights and freedoms, including such staples as the right to life and liberty and to a fair trial, freedom from torture and discrimination, and the freedoms of religion, belief, association, assembly and expression. While there is no formal hierarchy among the protected rights, the European Court has repeatedly referred to the overriding importance of freedom of expression as a key underpinning of democracy, and in this way as essential for the protection of all of the rights and freedoms set out in the Convention:

Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfilment.^5

The Convention places an initial and primary obligation on Contracting States to protect the rights that it guarantees; Article 1 states:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

(^1) Adopted 4 November 1950, E.T.S. No. 5, entered into force 3 September 1953. (^2) UN General Assembly Resolution 217A(III), 10 December 1948. (^3) The ECHR originally established both the European Commission of Human Rights and the European Court on Human Rights but Protocol No.11 brought about major institutional reforms, including by abolishing the European Commission. (^4) The first members of the Court were elected on 21 January 1959. (^5) See, for example, Lingens v. Austria, 1986, Sener v. Turkey, 2000, Thoma v. Luxembourg, 2001, Maronek v. Slovakia, 2001, and Dichand and others v. Austria, 2002.

appreciation.... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.^7

In other words, the Court will limit itself to a review of whether or not the approach taken at the national level gives effect to the right to freedom of expression. It will not, as a result, enter into an interpretation of local law or assessment of how it has been applied beyond what is required for the Article 10 assessment.

The European Court first considered the right to freedom of expression in the case of De Becker v. Belgium, decided in 1962.^8 In the 50 years since then, the Court has decided in the region of 1000 cases under Article 10, often along with other articles of the Convention. This impressive body of jurisprudence reflects a dynamic and evolving appreciation of the scope and nature of freedom of expression by the Court. Through the Court’s jurisprudence, the Convention is a living instrument, interpreted in the light of present day conditions and understandings.

It is a fair assessment of the work of the European Court to say that the scope of protection afforded to freedom of expression has, in general, expanded during those 50 years, both due to its treatment of new freedom of expression issues and due to a more robust understanding of the nature of this right. A good example of this is the Court’s approach to the right to information, or the right to access information held by public bodies. While earlier decisions declined to recognise such a right,^9 the Court has more recently broadened its understanding of Article 10, which now encompasses this right.^10 A similar progression may be seen in relation to restrictions which aim to protect religious sensitivities, with earlier cases giving more weight to such sensitivities,^11 while recent cases are more reflective of the diversity of beliefs, including non-religious beliefs, held in society, the importance of debate about these issues and the need to allow for criticism of religious institutions.^12

A large majority of Contracting States have incorporated the European Convention directly into their national legal system, so that it is part of their internal legal rules and in that way directly binding. In those States, the text of the Convention, or its incorporating legislation, and the case-law of the European Court may be invoked directly in national review procedures, including before the courts. Almost all European States also have overriding constitutional protection for freedom of expression. The wording of these constitutional guarantees varies and is often

(^7) Hertel v. Switzerland, 1998, § 46. (^8) The case was ultimately struck off the list as the matter had been resolved. (^9) See, for example, Leander v. Sweden, 1987, and Gaskin v. the United Kingdom, 1989. (^10) See Társaság A Szabadságjogokért v. Hungary, 2009. (^11) See, for example, Otto-Preminger-Institut v. Austria, 1987, and Wingrove v. the United Kingdom,

(^12) See, for example, Giniewski v. France, 2006.

different from that of Article 10 of the European Convention. At the same time, State authorities, including courts, are under an obligation to interpret and apply constitutional protections, so far as is reasonable, in a manner which best gives effect to their international legal obligations. This is an important way in which concordance between national and international legal systems is promoted.

This Handbook is designed to provide guidance to a range of different stakeholders. Journalists and other media workers are a key target group, but other groups – including civil society actors, legal professionals, officials, academics, members of parliament and other national decision makers – will also be able to make use of it. The Handbook describes the way in which the European Court has interpreted Article 10 of the European Convention. It is hoped that this will be useful to the different stakeholders in terms of enabling them to take the standards developed by the Court more fully into account in their various activities.

1. General Considerations

Importance of Freedom of Expression

Article 10(1) of the European Convention guarantees the right to freedom of expression in the following terms:

Everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

As noted above, the Court has consistently treated freedom of expression as a fundamental human right, emphasising its importance not only directly, but also as a core underpinning of democracy and other human rights. This is reflected in the quote above about freedom of expression being an essential foundation of a democratic society. It is also reflected in the following quotations, which the Court has often repeated:

More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.^13

And:

Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as

(^13) See, for example, Lingens v. Austria, 1986, § 42.

As noted above, the right covers not only information and ideas which are widely held but also minority viewpoints and views that many people might find offensive. Indeed, it is in relation to precisely this speech that the right is arguably most important. The right also covers commercial speech.^27

The actions of all organs which are part of the State apparatus engage the State’s responsibility to respect Article 10, and the Court has found breaches of the right in cases involving parliament (legislation), the government, the courts, the police, regulatory and disciplinary bodies, and even State-owned media outlets.^28 It is up to individual States to determine how their international obligations will be met. But all State actors are bound to respect rights, regardless of internal constitutional arrangements such as division of powers in a federal State or constitutional protection for the independence of bodies such as courts and election commissions.

On the other hand, private bodies are not covered. This also applies to the private media, as reflected in the following quote:

The Court reiterates that, as a general rule, privately owned newspapers must be free to exercise editorial discretion in deciding whether to publish articles, comments and letters submitted by private individuals or even by their own staff reporters and journalists. The State’s obligation to ensure the individual’s freedom of expression does not give private citizens or organisations an unfettered right of access to the media in order to put forward opinions. [references omitted]^29

The Court has also held that the rights recognised by Article 10 of the Convention apply “regardless of frontiers”.^30

Article 10 protects not only the right to freedom of expression, but also the right to hold opinions. Under international law, for example as reflected in Article 19 of the International Covenant on Civil and Political Rights (ICCPR),^31 the right to hold opinions is absolute. It is not clear whether this is the case under Article 10 of the European Convention; indeed, it would appear not to be the case, since Article 10(2), providing for restrictions, refers to the “exercise of these freedoms”, apparently covering all of the freedoms protected in Article 10(1).

(^25) Otto-Preminger Institut v. Austria, 1994. (^26) Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), 2009. (^27) Casado Coca v. Spain, 1994. (^28) On the last point, see Saliyev v. Russia, 2010. (^29) Saliyev v. Russia, 2010, § 52. (^30) Ekin Association v. France, 2001, § 62. (^31) UN General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 23 March

An obligation to offer an apology is arguably a breach of the right to hold an opinion, because one is being forced to say something one may not believe. In Kazakov v. Russia, 2008, a former military officer had been fined 500 roubles and ordered to make an apology for a statement which had been held to be defamatory. The Court accepted the fine as a sanction, but in relation to the apology it stated:

In its view, to make someone retract his or her own opinion by acknowledging his or her own wrongness is a doubtful form of redress and does not appear to be “necessary”.^32

The right to freedom of expression also encompasses a right not to speak. In the case of K. v. Austria, 1993, the applicant had been imprisoned for refusing to testify at his criminal trial. The European Commission on Human Rights found a breach of the right to freedom of expression based on the applicant’s right to remain silent, even though it had not found a breach of the right to a fair trial.^33

Key Attributes of the Right to Freedom of Expression

The vast majority of cases before the European Court involving freedom of expression involve interferences with that right. Protection of Article 10 rights in these cases is sometimes referred to as being a negative obligation of the State, because in these cases Article 10 limits what the State may do (i.e. by limiting the scope of restrictions that States may impose on the right). Examples of this are laws prohibiting certain kinds of expressions, or measures taken by State authorities to limit the right, such as dismissing a public employee or refusing to licence a newspaper.

The right to freedom of expression also, however, imposes a positive obligation on States to protect the right in certain circumstances. In the case of Özgür Gündem v. Turkey, 2000, the applicant newspaper was subjected to such serious attacks and harassment that it was eventually forced to close. The Court held the State directly responsible for certain acts of harassment. It also recognised that under certain circumstances, States have a positive obligation to protect freedom of expression, stating:

The Court recalls the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere,

(^32) Kazakov v. Russia, 2008, § 30. In other cases, however, the Court appears to approve the idea of an apology. In Cihan Öztürk V. Turkey, 2009, the Court stated: “The national courts might instead have considered other sanctions, such as the issuance of an apology or publication of their judgment finding the statements to be defamatory.” (^33) K. v. Austria, 1993, § 11. The Court ultimately struck the case off of the list because the respondent State, Austria, had introduced reforms to its penal procedures. See also Gillberg v. Sweden, 2012, where the Court did not rule out a negative right to not speak, but also decided that the issue should be decided in an appropriate case.

one of the objectives of the freedom of peaceful assembly enshrined in Article 11.^36

In Ezelin v. France, 1991,^37 the Court went even further, suggesting that the right to freedom of expression, at least in the circumstances of that case, was a “lex generalis in relation to Article 11”, which guarantees the right to freedom of assembly, and that Article 11 was, in turn, a lex specialis.

Unprotected Speech

As noted above, Article 10 of the European Convention permits States to impose limited restrictions on freedom of expression to protect overriding interests. Beyond this, however, there are some cases where speech does not warrant even prima facie protection under Article 10. Article 17 of the Convention states:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Expressive activity falling within the scope of Article 17 is not protected by Article

10. As a result, in such cases, the Court does not need to engage in an analysis of whether the limitation on freedom of expression applied by the respondent State is justified under Article 10(2).

The Court has applied Article 17 mainly in the context of racist speech which it deems to undermine fundamental Convention values such as tolerance and non- discrimination. The case of Pavel Ivanov v. Russia, 2007, is typical. It involved the criminal conviction of the applicant for publishing a series of articles portraying the Jews as a source of evil in Russia. The Court rejected the application as inadmissible, stating:

The Court has no doubt as to the markedly anti-Semitic tenor of the applicant’s views and it agrees with the assessment made by the domestic courts that he sought through his publications to incite hatred towards the Jewish people. Such a general and vehement attack on one ethnic group is in contradiction with the Convention’s underlying values, notably tolerance, social peace and non-discrimination. Consequently, the Court finds that, by reason of Article 17 of the Convention, the applicant may not benefit from the protection afforded by Article 10 of the Convention.

(^36) Éva Molnár V. Hungary, 2008, § 42. See also Fáber v. Hungary, 2012. (^37) Ezelin v. France, 1991, § 35.

Although instances of racist speech involving Jews dominate the Article 17/expressive activity interface, the Court has also applied this rule to other types of racist speech. For example, Norwood v. the United Kingdom, 2004, involved a poster depicting the Twin Towers which were destroyed in the attacks of 11 September 2001 in flames and with the caption “Islam out of Britain – Protect the British People”. The Court held that the poster did not enjoy the protection of Article 10 because it fell within the ambit of Article 17, stating:

[T]he words and images on the poster amounted to a public expression of attack on all Muslims in the United Kingdom. Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non- discrimination. The applicant’s display of the poster in his window constituted an act within the meaning of Article 17.

The Court has also applied Article 17 to cases of Holocaust denial. In the case of Garaudy v. France, 2003, the Court held that a book minimising the Holocaust fell within the scope of Article 17. Among other things, the Court stated:

There can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does in his book, does not constitute historical research akin to a quest for the truth…. Such acts are incompatible with democracy and human rights because they infringe the rights of others. Their proponents indisputably have designs that fall into the category of aims prohibited by Article 17 of the Convention.

Finally, Article 17 has also been used to deny the protection of Article 10 to an individual who wanted to revive the Nazi party in Germany.^38

Pursuant to Article 15 of the Convention, States may also derogate from rights during “war or other public emergency threatening the life of the nation”, but only “to the extent strictly required by the exigencies of the situation”. The extent to which Article 15 may justify restrictions on freedom of expression has not yet been fully tested.

2. Special Protection

Debate on Matters of Public Interest

The European Court has, over the years, placed enormous emphasis on the idea that restrictions on freedom of expression that affect speech on matters of public

(^38) Kühnen v. Germany, 1988.

ultimately an unsuccessful restoration project which resulted in the partial collapse of the building. The Court came out in favour of very strong protection for statements which expose official wrongdoing or corruption:

In this context, the Court observes that, while paragraph 2 of Article 10 of the Convention recognises that freedom of speech may be restricted in order to protect the reputation of others, defamation laws or proceedings cannot be justified if their purpose or effect is to prevent legitimate criticism of public officials or the exposure of official wrongdoing or corruption.^44

Large corporations must also tolerate a strong degree of criticism:

[L]arge public companies inevitably and knowingly lay themselves open to close scrutiny of their acts and, as in the case of the businessmen and women who manage them, the limits of acceptable criticism are wider in the case of such companies.^45

Political debate and debate about matters of current interest are the most common forms of discussion on matters of public interest that the Court has had to address, but it has also emphasised the importance of historical debate. In Fatullayev v. Azerbaijan, 2010, the applicant had been convicted of criminal defamation for presenting a view of the events of the Nagorno-Karabakh war which differed from the official version and which were held by the domestic courts to be defamatory of soldiers in the Azerbaijani Army and, in particular, two individual plaintiffs. The Court stated:

[T]he Court notes that it is an integral part of freedom of expression to seek historical truth. At the same time, it is not the Court’s role to arbitrate the underlying historical issues which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation.^46

Most of the cases cited above involve complaints brought by applicants claiming that their Article 10 rights have been breached through the imposition on them of sanctions for having disseminated defamatory statements. The concept of a “debate of general interest” has also, however, been applied in the context of complaints that the respondent State had failed to provide sufficient protection to the privacy of the applicant, in light of intrusive media reporting. In Von Hannover v. Germany (No. 2), 2012, the Von Hannovers complained that German law failed to provide adequate protection for their privacy, in particular by failing to grant an injunction against further publication of various photos of them. The Court provided a very detailed

(^44) Cihan Öztürk v. Turkey, 2009, § 32. (^45) Steel and Morris v. the United Kingdom, 2005, § 94. (^46) Fatullayev v. Azerbaijan, 2010, § 87.

analysis of how to balance the rights to freedom of expression and privacy in such cases, setting out a number of factors to be taken into account, of which the first was as follows:

An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest. The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists. [references omitted]^47

In another case, the Court stated:

In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has stressed the contribution made by photos or articles in the press to a debate of general interest.^48

The Role of the Media

Article 10 of the European Convention does not explicitly mention the press, media or journalists but, as noted above, the Court has frequently recognised the important role of the media in fostering public debate, in providing the public with access to important public interest information, and in exposing official incompetence and wrongdoing. As the Court stated in one of its earliest cases, in a quotation which has been repeated frequently since that time: “Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.”^49

As a result, the Court has been willing to grant a large measure of protection under Article 10 to media activities:

In cases concerning the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued.^50

There are a number of different aspects to this heightened protection. First, the media are permitted, at least in some contexts, to use strong terms when reporting:

(^47) Von Hannover v. Germany (No. 2), 2012, § 109. (^48) Eerikäinen and others v. Finland, 2009, § 62. (^49) Lingens v. Austria, 1986, § 42. (^50) Thoma v. Luxembourg, 2001, § 48.

that journalists should be protected under Article 10, as long as they act in accordance with professional standards, even if they engage in strong (and even inaccurate) criticism.

The last sentence of Article 10(1) explicitly authorises the licensing of certain means of expression, notably broadcasting, stating: “This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” The provision was included at an advanced stage of the preparatory work on the Convention, mainly for technical reasons relating to the allocation of licences. The Court has made it clear that while this may allow for the imposition of technical constraints which do not strictly meet the standards of Article 10(2), regarding restrictions on freedom of expression, in other respects licensing systems must meet those standards:

[T]he purpose of the third sentence of Article 10 § 1 (art. 10-1) of the Convention is to make it clear that States are permitted to control by a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects. It does not, however, provide that licensing measures shall not otherwise be subject to the requirements of paragraph 2 (art. 10-2), for that would lead to a result contrary to the object and purpose of Article 10 (art. 10) taken as a whole.^56

Technical advances in the more than 20 years since this judgment was adopted, in particular the further proliferation of cable and satellite distribution systems, and the advent of digital television, have substantially changed the nature of licensing systems, in particular because they have mitigated the erstwhile scarcity that characterised broadcast distribution systems. There remains, however, a need to regulate broadcasting to ensure diversity (see below).

While heightened protection for freedom of expression is most often found in cases involving the media, it is certainly not restricted to such cases. Thus, Steel and Morris, 2005, involved criticism of the food chain giant McDonalds by a small, unincorporated non-profit group, London Greenpeace. Rejecting claims by the respondent State that, since they were not journalists, the applicants did not deserve the higher level of protection extended to the media, the Court stated:

The Court considers, however, that in a democratic society even small and informal campaign groups, such as London Greenpeace, must be able to carry on their activities effectively and that there exists a strong public interest in enabling such groups and individuals outside the mainstream to

(^56) Groppera Radio AG and others v. Switzerland, 1990, § 61.

contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment.^57

Társaság A Szabadságjogokért v. Hungary, 2009, involved a refusal by the Hungarian Constitutional Court to give a human rights organisation access to an application for review of certain provisions of the Criminal Code, which had been lodged with the Court by a member of parliament. The European Court stressed the role of civil society in fostering open public debate, likening it to the role of the media:

In the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation. The purpose of the applicant’s activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognised civil society’s important contribution to the discussion of public. The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information. It may therefore be characterised, like the press, as a social “watchdog”. [references omitted]^58

In a case involving the conviction of a Spanish senator representing the Herri Batasuna political group, which supported independence for the Basque Country, for very strong criticism of government, the Court also noted the importance of protecting the freedom of expression of elected representatives:

While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament, like the applicant, call for the closest scrutiny on the part of the Court.^59

The comments in the case above were made outside of parliament, but in other cases the Court has upheld the principle of absolute privilege for speech in parliament.^60

3. Special Duties

The second paragraph of Article 10, dealing with restrictions on freedom of expression, refers to “duties and responsibilities” associated with the exercise of

(^57) Steel and Morris v. the United Kingdom, 2005, § 89. See also Women on Waves v. Portugal, 2007, Hertel v. Swizterland, 1998, and Open Door Counselling Ltd and Dublin Well Woman Centre Ltd v. Ireland, 1992. (^58) Társaság A Szabadságjogokért v. Hungary, 2009, § 27. (^59) Castells v. Spain, 1992, § 42. (^60) See, for example, A. v. the United Kingdom, 2003.

None of the issues of der Igel submitted in evidence recommend disobedience or violence, or even question the usefulness of the army. Admittedly, most of the issues set out complaints, put forward proposals for reforms or encourage the readers to institute legal complaints or appeals proceedings. However, despite their often polemical tenor, it does not appear that they overstepped the bounds of what is permissible in the context of a mere discussion of ideas, which must be tolerated in the army of a democratic State just as it must be in the society that such an army serves.^63

The issue of special obligations of civil servants has come before the Court in a number of cases. In Kosiek v. Germany, 1986, the issue was whether it was legitimate to refuse to employ as a civil servant someone who was a prominent member of a left-leaning political part. The government held that the political party had “aims which were inimical to the Constitution”, and so the applicant did not meet the conditions for being a civil servant, one of which was loyalty to the constitution. In a somewhat unsatisfactory conclusion, the Court held that there was no breach of the right to freedom of expression because the government’s assessment of political activities was done simply to ascertain whether of not the applicant met the conditions for being a civil servant.

In a subsequent case, Vogt v. Germany, 1995, a Grand Chamber of the Court appeared to reverse its earlier position. Vogt was fired from the school where she taught because of doubt about her respect for the duty of political loyalty, which requires all civil servants to “dissociate themselves unequivocally from groups that attack and cast aspersions on the State and the existing constitutional system”. This was based on the fact that she was an activist in the German Communist Party, from which she had refused to dissociate herself. The Court accepted that democracies are entitled to demand loyalty from civil servants.

It also noted the absolute nature of the duty under German law, and the fact that such a duty was not imposed in other European democracies:

[The duty] is owed equally by every civil servant, regardless of his or her function and rank. It implies that every civil servant, whatever his or her own opinion on the matter, must unambiguously renounce all groups and movements which the competent authorities hold to be inimical to the Constitution. It does not allow for distinctions between service and private life; the duty is always owed, in every context.^64

In finding a breach of the right to freedom of expression in the case before it, the Court noted that Vogt’s position did not involve security, that she was not accused of

(^63) Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 1994, § 38. (^64) Vogt v. Germany, 1995, § 59.

seeking to influence her students based on her political ideas, that she believed that her political views were consistent with the constitution, and that the measure had an extremely severe effect on her.

An analogous issue arose in Rekvényi v. Hungary, 1999, also decided by a Grand Chamber of the Court. At issue in that case was a constitutional amendment which prohibited members of the armed forces, the police and the security services from joining any political party and from engaging in any political activity. The Court noted that it was legitimate in a democracy to expect the police force to be politically neutral, taking into account, “the role of the police in society”. In upholding the restriction, the Court placed some emphasis on Hungary’s recent political history, in which police and military staff had been expected to be members of the party that ruled the country for 40 years. Although the Court did not explicitly distinguish Vogt, it would seem that the differences in the outcomes between the two cases was primarily based on the relative proximity of Hungary’s undemocratic past, as well as the nature of the civil service function in issue.^65

Special duties, albeit subject to limits, may also be legitimate for certain professions. In Frankowicz v. Poland, 2008, the applicant medical doctor had published research referring to a specific case and discredited the doctors who had been treating the patient in question. Under the prevailing rules, doctors were prohibited from criticising other doctors. The Court recognised the need for some degree of discretion among certain types of professionals:

[I]n the context of lawyers, members of the Bar, that the special nature of the profession practised by an applicant must be considered in assessing whether the restriction on the applicant’s right answered any pressing need. Medical practitioners also enjoy a special relationship with patients based on trust, confidentiality and confidence that the former will use all available knowledge and means for ensuring the well-being of the latter. That can imply a need to preserve solidarity among members of the profession. On the other hand, the Court considers that a patient has a right to consult another doctor in order to obtain a second opinion about the treatment he has received and to expect a fair and objective evaluation of his doctor’s actions.^66

However, the absolute nature of the prohibition, regardless of its political neutrality and motivation, rendered it illegitimate:

Such a strict interpretation by the disciplinary courts of the domestic law as to ban any critical expression in the medical profession is not consonant with the right to freedom of expression (see Stambuk, cited above, § 50). This approach to the matter of expressing a critical opinion of a colleague,

(^65) See also Otto v. Germany, 2005. (^66) Frankowicz v. Poland, 2008, § 49. See also Heinisch v. Germany, 2011.