The way that art is judged in the courtroom shapes the way it is perceived at large and has a direct consequence on how it can be appreciated by the society. Surely, not all art is to everybody’s liking. Even the judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In the recent Sinkova v. Ukraine case, a divided Fourth Section of the European Court of Human Rights ruled that the applicant’s conviction for an artistic performance featuring the applicant frying eggs over the Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting the memory of soldiers from insult, outweighs the applicants ‘right to free expression. The artistic nature of the applicant’s actions is ignored by the judges at Strasbourg and in the absence of an explanatory context, the performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive?
About the significance the European Court of Human Rights attaches to the protection of artistic expression and the ways in which its case-law regulates the dynamics between artistic freedom, public morals and “the feelings of others”, read Andra’s article here.