CYIL vol. 15 (2024)

MAGDALENA MATUSIAKǧFRĄCCZAK potential impact of such an expression on national security or public order to a substantial extent. Therefore, even if some parts of the incriminating expressions are aggressive and call to the use of violence, they fall within the scope of protection of Article 10 ECHR. In Fáber v. Hungary 23 the Court added that the lack of any impact or just a very limited impact of a message to public order does not suffice to penalise it. Therefore, it has to be underlined once again, that in Z. B. v. France, the impugned message had no or even a marginal impact on national security or public order, as it was not apt to incite to any act of terrorism. Dressing a boy named “Jihad” in a t-shirt at stake could have been regarded as a joke in a very bad taste and could therefore fall into the protection of the humorous speech. It was already underlined by the European Court of Human Rights that satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with the right of an artist – or anyone else – to use this means of expression should be examined with particular care. 24 Satire definitely encompasses jokes, even if they are of bad taste and reckless and even when they concern one of the most serious terrorist attacks in history. Of course, such tragedies, as the attacks on the World Trade Center definitely were and should not be a subject of a joke, yet not everyone is mindful of empathy that naturally should be felt towards victims of terrorism. However, at the same time not every thoughtless behaviour should have a penal reaction as a consequence. Nevertheless, it cannot be said that the entire situation in case Z. B. v. France does not raise any concern as to the well-being of the child. The boy was instrumentalised and used as a bearer of a provocative message. Another problematic issue is naming “Jihad” a boy born on 11 September. Taking all this into consideration one cannot fully exclude that this child can be at risk of radicalisation. Instead of initiating penal proceedings, the state authorities could have interfered in parental authority by subjecting it to monitoring of the competent institutions. Such an interference within a sphere covered by Article 8 ECHR does not seem inappropriate and disproportionate. It is a settled case-law of the ECtHR that state authorities enjoy a margin of appreciation when deciding on custody matters. A stricter scrutiny is necessary regards any further limitations, such as restrictions placed by those authorities on parental rights of contact, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed. 25 State authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. Under Article 8 a parent is not entitled to have 23 ECtHR, Fáber v. Hungary , app. no. 40721/08, judgment of 24 July 2012, at 44–45. 24 ECtHR, Eon v. France, app. no. 26118/10, judgment of 14 March 2013, at 60. ECtHR, Alves da Silva v. Portugal, app no. 41665/07, judgment of 20 October 2009, at 27. ECtHR, Vereinigung Bildener Künstler v. Austria, app. no. 68354/01, judgment of 25 January 2007, at 33. 25 ECtHR, Sahin v. Germany, app. no. 30943/96, judgment of 8 July 2003, at 65. ECtHR, Elsholz v. Germany, app. no. 25735/94, judgment of 13 July 2000, at 49. ECtHR, T.P. and K.M. v. the United Kingdom, app. no. 28945/95, judgment of 10 May 2001, at 71. ECtHR, Kocherov and Sergeyeva v. Russia, app. no. 16899/13, judgment of 29 March 2016, at 94.

148