A/HRC/44/49/Add.2 21. The European Court of Human Rights has interpreted Article 10 of the European Convention on Human Rights to apply to artistic expression, noting, “Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas which is essential for a democratic society.”43 And further, it has stated, “Artistic freedom enjoyed by, among others, authors of literary works is a value in itself, and thus attracts a high level of protection under the Convention”.44 The Court has considered throughout its caselaw, that visual arts, literary creation and satire may be considered as forms of artistic expression and are therefore protected by Article 10 of the Convention.45 In Karataş v. Turkey the Court considered a poem that “called for self-sacrifice for ‘Kurdistan’ and included some particularly aggressive passages directed at the Turkish authorities.” 46The Court found that the Government’s prosecution and sentencing of the poet failed to meet the standards of Article 10 of the European Convention, lacking proportionality and unnecessary in a democratic society. As one scholar noted, the Court “made the refreshing observation that the applicant’s poems were less a call to an uprising than an expression of deep distress in the face of a difficult political situation.”47 III. Contemporary instances of threats to artistic freedom 22. Governments narrow the boundaries of artistic freedom through restrictive legislation, ambiguous policies and vague regulations. Arbitrary detention of artists48, use of threats, criminal prosecutions, and imprisonment49 contribute to a climate a fear often resulting in self-censorship. Those who work in arts sectors have also faced pressure and other forms of interference to ensure that artistic expression is limited, particularly within the framework of marked intolerance towards groups that have been historically discriminated against and are in vulnerable situations. Artistic expression also involves those responsible for promotion, distribution, sales, funding, and other functions that constitute dissemination of art. These services are vital for both creating a market to support artists and also in reaching an audience. However, those involved in the ecosystem of art are just as vulnerable to repression as creators themselves. 23. Once an individual has shown the existence of a restriction on freedom of expression, the burden falls on the State to demonstrate that it complies with the requirements of human rights law as described above.50 Essential to meeting that burden is a demonstration that the restriction does “not put in jeopardy the right itself.”51 A. Legality 24. A restriction does not meet the legality requirement simply because it is formally enacted as a national law or regulation. It must also be formulated with sufficient precision to enable both the individual and those charged with its execution to regulate conduct accordingly and be made accessible to the public. It cannot confer excessive discretion for the restriction of freedom of expression on those charged with its execution.52 There are at 43 44 45 46 47 48 49 50 51 52 European Court of Human Rights (hereinafter ECtHR Müller and others v. Switzerland. Application No. 10737/84, 24 May 1988. ECtHR, Marta Jelševar and others v. Slovenia, Application no. 47318/07, 11 March 2014. Council of Europe, Research Division, Cultural rights in the case-law of the European Court of Human Right, 17 January 2017. ECtHR, Karataş v. Turkey, Application no. 23168/94, 8 July 1999. Paul Kearns, Freedom of Artistic Expression (2013), p. 171. Communication to Iran, IRN 6/2015, 4 June 2015; Communication to Iran, IRN 13/2017, 13 April 2017. Communication to Azerbaijan, AZE 2/2015, 29 May 2015. General Comment 34, 27. Ibid, 21. Ibid, 24-26; General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on contemporary challenges to freedom of expression, A/71/373. 6 September 2016, ¶12 (hereinafter, “Report on contemporary challenges to freedom of expression, A/71/373”). 9