In the case of Müller and Others*,
* Note by the Registrar: The case is numbered 25/1986/123/174. The
second figure indicates the year in which the case was referred to
Court and the first figure its place on the list of cases referred
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the
provisions of the Rules of Court, as a Chamber composed of the
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mrs. D. Bindschedler-Robert,
Sir Vincent Evans,
Mr. R. Bernhardt,
Mr. A. Spielmann,
Mr. J. De Meyer,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Having deliberated in private on 27 January and 27 and 28 April
Delivers the following judgment, which was adopted on the
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") and by the Government of the
Confederation ("the Government") on 12 December 1986 and
25 February 1987 respectively, within the three-month period laid
in Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 10737/84) against
Switzerland lodged with the Commission under Article 25 (art. 25)
nine Swiss citizens - Mr. Josef Felix Müller, Mr. Charles
Mr. Michel Gremaud, Mr. Paul Jacquat, Mr. Jean Pythoud,
Mrs. Geneviève Renevey, Mr. Michel Ritter, Mr. Jacques Sidler and
Mr. Walter Tschopp - and a Canadian national, Mr. Christophe von
on 22 July 1983.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Switzerland recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46); the
Government's application referred to Articles 45, 47 and 48 (art.
art. 47, art. 48). Both sought a decision from the Court as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 10 (art. 10).
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicants stated that
wished to take part in the proceedings pending before the Court
designated the lawyer who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mrs. D. Bindschedler-Robert, the elected judge of Swiss
(Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the
President of the Court (Rule 21 § 3 (b)). On 3 February 1987, in
presence of the Registrar, the President drew by lot the names of
other five members, namely Mr. J. Cremona, Mr. J. Pinheiro
Sir Vincent Evans, Mr. R. Bernhardt and Mr. A. Spielmann (Article
in fine of the Convention and Rule 21 § 4) (art. 43).
Mr. Pinheiro Farinha, who was unable to attend, was replaced by
Mr. J. De Meyer, substitute judge (Rules 22 § 1 and 24 § 1).
4. Mr. Ryssdal, who had assumed the office of President of the
Chamber (Rule 21 § 5), consulted - through the Deputy Registrar -
Agent of the Government, the Delegate of the Commission and the
for the applicants on the need for a written procedure (Rule 37 §
In accordance with the orders made in consequence, the registry
(a) the applicants' memorial, written in German by leave of the
President (Rule 27 § 3), on 1 June 1987;
(b) the Government's memorial, on 30 July.
In a letter of 12 October, the Secretary to the Commission
the Registrar that the Delegate would make his submissions at the
5. Having consulted - through the Deputy Registrar - the Agent of
the Government, the Delegate of the Commission and the lawyer for
applicants, the President directed on 23 October 1987 that the
proceedings should commence on 25 January 1988 (Rule 38).
6. On 30 November, the Court decided to inspect the impugned
paintings by Josef Felix Müller, as the Government had suggested
(Rule 40 § 1). They were duly shown, in camera, in the presence of
those appearing before the Court, on 25 January 1988, before the
In the meantime, on 2 and 4 December 1987, the Registrar had
a number of documents which the President had instructed him to
from the Commission. Between 11 January and 8 April 1988, the
Government and the applicants furnished several other documents.
7. The hearing was held in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr. O. Jacot-Guillarmod, Head of the Department of
International Affairs, Federal
Department of Justice, Agent,
Mr. P. Zappelli, Cantonal Judge, Canton of Fribourg,
Mr. B. Münger, Federal Department of Justice, Counsel;
(b) for the Commission
Mr. H. Vandenberghe, Delegate;
(c) for the applicants
Mr. P. Rechsteiner, avocat, Counsel.
The Court heard addresses by Mr. Jacot-Guillarmod for the
by Mr. Vandenberghe for the Commission and by Mr. Rechsteiner for
applicants, as well as their replies to its questions.
AS TO THE FACTS
I. The circumstances of the case
8. The first applicant, Josef Felix Müller, a painter born in
1955, lives in St. Gall. The other nine applicants are:
(a) Charles Descloux, art critic, born in 1939 and living in
(b) Michel Gremaud, art teacher, born in 1944 and living at Guin,
(c) Christophe von Imhoff, picture restorer, born in 1939 and
(d) Paul Jacquat, bank clerk, born in 1940 and living at Belfaux;
(e) Jean Pythoud, architect, born in 1925 and living in Fribourg;
(f) Geneviève Renevey, community worker, born in 1946 and living
(g) Michel Ritter, artist, born in 1949 and living at
(h) Jacques Sidler, photographer, born in 1946 and living at
(i) Walter Tschopp, assistant lecturer, born in 1950 and living in
9. Josef Felix Müller has exhibited on his own and with other
artists on many occasions, particularly since 1981, both in
galleries and in museums, in Switzerland and elsewhere.
With the assistance of the Federal Office of Culture, he took part
the Sydney Biennial in Australia in 1984, as Switzerland's
representative. He has been awarded several prizes and has sold
to museums such as the Kunsthalle in Zürich.
10. In 1981, the nine last-mentioned applicants mounted an
exhibition of contemporary art in Fribourg at the former Grand
Seminary, a building due to be demolished. The exhibition,
"Fri-Art 81", was held as part of the celebrations of the 500th
anniversary of the Canton of Fribourg's entry into the Swiss
Confederation. The organisers invited several artists to take
each of whom was allowed to invite another artist of his own
The artists were meant to make free use of the space allocated to
them. Their works, which they created on the spot from early
August 1981 onwards, were to have been removed when the exhibition
ended on 18 October 1981.
11. In the space of three nights Josef Felix Müller, who had been
invited by one of the other artists, produced three large
(measuring 3.11m x 2.24m, 2.97m x 1.98m and 3.74m x 2.20m)
"Drei Nächte, drei Bilder" ("Three Nights, Three Pictures"). They
were on show when the exhibition began on 21 August 1981. The
exhibition had been advertised in the press and on posters and was
open to all, without any charge being made for admission. The
catalogue, specially printed for the preview, contained a
reproduction of the paintings.
12. On 4 September 1981, the day of the official opening, the
principal public prosecutor of the Canton of Fribourg reported to
investigating judge that the paintings in question appeared to
within the provisions of Article 204 of the Criminal Code, which
prohibited obscene publications and required that they be
(see paragraph 20 below). The prosecutor thought that one of the
three pictures also infringed freedom of religious belief and
within the meaning of Article 261 of the Criminal Code.
According to the Government, the prosecutor had acted on an
information laid by a man whose daughter, a minor, had reacted
violently to the paintings on show; some days earlier another
to the exhibition had apparently thrown down one of the paintings,
trampled on it and crumpled it.
13. Accompanied by his clerk and some police officers, the
investigating judge went to the exhibition on 4 September and had
disputed pictures removed and seized; ten days later, he issued an
attachment order. On 30 September 1981, the Indictment Chamber
dismissed an appeal against that decision.
After questioning the ten applicants on 10, 15 and 17 September
6 November 1981, the investigating judge committed them for trial
the Sarine District Criminal Court.
14. On 24 February 1982, the court sentenced each of them to a
fine of 300 Swiss francs (SF) for publishing obscene material
(Article 204 § 1 of the Criminal Code) - the convictions to be
from the criminal records after one year - but acquitted them on
charge of infringing freedom of religious belief and worship
(Article 261). It also ordered that the confiscated paintings
be deposited in the Art and History Museum of the Canton of
for safekeeping. At the hearing on 24 February, it had heard
from Mr. Jean-Christophe Ammann, the curator of the Kunsthalle in
Basle, as to Josef Felix Müller's artistic qualities.
In its judgment, the court pointed out first of all that "the law
[did] not define obscenity for the purposes of Article 204 CC
[Criminal Code] and the concept [had] to be clarified by means of
interpretation, having regard to the intent and purpose of the
enactment as well as to its place in the legislation and in the
overall legal system". After referring to the Federal Court's
case-law on the subject, it said among other things:
"In the instant case, although Mr. Müller's three works are not
sexually arousing to a person of ordinary sensitivity, they are
undoubtedly repugnant at the very least. The overall impression is
persons giving free rein to licentiousness and even perversion.
The subjects - sodomy, fellatio, bestiality, the erect penis - are
obviously morally offensive to the vast majority of the
Although allowance has to be made for changes in the moral
even for the worse, what we have here would revolutionise it.
on the confiscated works is superfluous; their vulgarity is plain
see and needs no elaborating upon.
Nor can a person of ordinary sensitivity be expected to go behind
is actually depicted and make a second assessment of the picture
independently of what he can actually see. To do that he would
to be accompanied to exhibitions by a procession of sexologists,
psychologists, art theorists or ethnologists in order to have
explained to him that what he saw was in reality what he wrongly
thought he saw.
Lastly, the comparisons with the works of Michelangelo and J.
are specious. Apart from the fact that they contain no depictions
the kind in Müller's paintings, no valid comparison can be made
history-of-art or cultural collections in which sexuality has a
..., but without lapsing into crudity. Even with an artistic aim,
crude sexuality is not worthy of protection ... . Nor are
with civilisations foreign to western civilisation valid."
On the question whether to order the destruction of the pictures
paragraph 3 of Article 204 (see paragraph 20 below), the court
"Not without misgivings, the court will not order the destruction
the three works.
The artistic merit of the three works exhibited in Fribourg is
admittedly less obvious than is supposed by the witness Ammann,
nevertheless said that the paintings Müller exhibited in Basle
more 'demanding'. The court would not disagree. Müller is
undoubtedly an artist of some accomplishment, particularly in the
matter of composition and in the use of colour, even though the
seized in Fribourg appear rather scamped.
Nonetheless, the court, deferring to the art critic's opinion
not sharing it, and concurring with the relevant findings of the
Federal Court in the Rey judgment (ATF 89 IV 136 et seq.), takes
view that in order to withhold the three paintings from the
public - to 'destroy' them - it is sufficient to place them in a
museum, whose curator will be required to make them available only
a few serious specialists capable of taking an exclusively artistic
cultural interest in them as opposed to a prurient interest. The
and History Museum of the Canton of Fribourg meets the
for preventing any further breach of Article 204 of the Criminal
The three confiscated paintings will be deposited there."
15. All the applicants appealed on points of law on
24 February 1982; in particular, they challenged the trial court's
interpretation as regards the obscenity of the relevant paintings.
For example, it was argued by Josef Felix Müller (in pleadings of
16 March 1982) that something which was obscene sought directly to
arouse sexual passion, and that this had to be its purpose, with
essential aim of pandering to man's lowest instincts or else for
pecuniary gain. This, it was alleged, was never the case "where
artistic or scientific endeavour [was] the primary consideration".
16. The Fribourg Cantonal Court, sitting as a court of cassation,
dismissed the appeals on 26 April 1982.
Referring to the Federal Court's case-law, it acknowledged that
the recent past, and still today, the public's general views on
morality and social mores, which vary at different times and in
different places, have changed in a way which enables things to be
seen more objectively and naturally". The trial court had to take
account of this change, but that did not mean that it had to show
complete permissiveness, which would leave no scope for the
application of Article 204 of the Criminal Code.
As for works of art, they did not in themselves have any
status. At most they might escape destruction despite their
obscenity. Their creators nonetheless fell within the thrust of
Article 204, "since that statutory provision as a whole [was]
to protect public morals, even in the sphere of the fine arts".
being so, the court could dispense with deciding the question
the pictures complained of were the outcome of "artistic ideas,
even then, intention [was] one thing and realisation of it
Like the trial court, the appellate court found that
Josef Felix Müller's paintings aroused "repugnance and disgust":
"These are not works which, in treating a particular subject or
allude to sexual activity more or less discreetly. They place it
the foreground, depicting it not in the embrace of man and woman
in vulgar images of sodomy, fellatio between males, bestiality,
penises and masturbation. Sexual activity is the main, not to say
sole, ingredient of all three paintings, and neither the
explanations nor the witness Mr. Ammann's learned-seeming but
unpersuasive remarks can alter that fact. To go into detail,
distasteful it may be, one of the paintings contains no fewer than
eight erect members. All the persons depicted are entirely naked
one of them is engaging simultaneously in various sexual practices
with two other males and an animal. He is kneeling down and not
sodomising the animal but holding its erect penis in another
mouth. At the same time he is having the lower part of his back -
buttocks, even - fondled by another male, whose erect penis a
male is holding towards the first male's mouth. The animal being
sodomised has its tongue extended towards the buttocks of a fourth
male, whose penis is likewise erect. Even the animals' tongues
(especially in the smallest painting) are more suggestive, in
and aspect, of erect male organs than of tongues. Sexual activity
crudely and vulgarly portrayed for its own sake and not as a
consequence of any idea informing the work. Lastly, it should be
pointed out that the paintings are large ..., with the result that
their crudeness and vulgarity are all the more offensive.
The court is likewise unconvinced by the appellants' contention
the paintings are symbolical. What counts is their face value,
effect on the observer, not some abstraction utterly unconnected
the visible image or which glosses over it. Furthermore, the
thing is not the artist's meaning or purported meaning but the
objective effect of the image on the observer ... .
Not much of the argument in the appeal was directed to the issues
intention or of awareness of obscenity, nor indeed could it have
In particular, an author is aware of a publication's obscenity when
knows it deals with sexual matters and that any written or
allusion to such matters is likely, in the light of generally
views, grossly to offend the average reader's or observer's
sense of decency and propriety. That was plainly so here, as the
evidence at the trial confirmed. ... Indeed, several of the
admitted that the paintings had shocked them. It should be noted
even someone insensible to obscenity is capable of realising that
may disturb others. As the trial court pointed out, the defendants
the very least acted recklessly.
Lastly, it is immaterial that similar works have allegedly been
exhibited elsewhere; the three paintings in issue do not on that
account cease to be obscene, as the trial court rightly held them
17. On 18 June 1982, the applicants lodged an application for a
declaration of nullity (Nichtigkeitsbeschwerde) with the Federal
Court. They sought to have the judgment of 26 April set aside and
case remitted with a view to their acquittal and the return of the
confiscated paintings or, in the alternative, merely the return of
In their submission, the Fribourg Cantonal Court had wrongly
interpreted Article 204 of the Criminal Code; in particular, it
taken no account of the scope of the freedom of artistic
guaranteed inter alia in Article 10 (art. 10) of the Convention.
Mr. Ammann, one of the most distinguished experts on modern art,
confirmed that these were works of note. Similar pictures by
Josef Felix Müller, moreover, had been exhibited in Basle in
February 1982 and it had not occurred to anyone to regard them as
As to the "publication" of obscene items, which was prohibited
Article 204 of the Criminal Code, this was a relative concept. It
should be possible to show in an exhibition pictures which, if
were displayed in the market-place, would fall foul of Article
people interested in the arts ought to have an opportunity to
themselves with all the trends in contemporary art. Visitors to an
exhibition of contemporary art like "Fri-Art 81" should expect to
faced with modern works that might be incomprehensible. If they
not like the paintings in issue, they were free to look away from
and pass them by; there was no need for the protection of the
law. It was not for the court to undertake indirect censorship of
arts. On a strict construction of Article 204 - that is, one
having regard to the fundamental right to freedom of artistic
expression, left it to art-lovers to decide for themselves what
wanted to see -, the applicants should be acquitted.
Confiscation of the disputed paintings, they submitted, could only
ordered if they represented a danger to public order such that
returning them could not be justified - and that was a matter the
court of cassation had not considered. Since the pictures had been
openly on display for ten days without giving rise to any protests,
was difficult to see how such a danger was made out.
Josef Felix Müller would certainly not show his paintings in
in the near future. On the other hand, they could be shown without
any difficulty elsewhere, as was proved by his exhibition in Basle
February 1982. It was consequently out of all proportion to
him of them.
18. The Criminal Cassation Division of the Federal Court dismissed
the appeal on 26 January 1983 for the following reasons:
"The decided cases show that for the purposes of Article 204 of
Criminal Code, any item is obscene which offends, in a manner that
difficult to accept, the sense of sexual propriety; the effect of
obscenity may be to arouse a normal person sexually or to disgust
repel him. ... The test of obscenity to be applied by the court is
whether the overall impression of the item or work causes moral
offence to a person of ordinary sensitivity ...
The paintings in issue show an orgy of unnatural sexual practices
(sodomy, bestiality, petting), which is crudely depicted in large
format; they are liable grossly to offend the sense of sexual
propriety of persons of ordinary sensitivity. The artistic licence
relied on by the appellant cannot in any way alter that conclusion
the instant case.
The content and scope of constitutional freedoms are determined on
basis of the federal law currently in force. This applies inter
to freedom of the press, freedom of opinion and artistic freedom;
under Article 113 [of the Federal Constitution], the Federal Court
bound by federal enactments ... In the field of artistic creation
[it] has held that works of art per se do not enjoy any special
status ... A work of art is not obscene, however, if the artist
contrives to present subjects of a sexual nature in an artistic
such that their offensiveness is toned down and ceases to
... In reaching its decision, the criminal court does not have to
view the work through an art critic's spectacles (which would
ill become it) but must decide whether the work is liable to
the unsuspecting visitor.
Expert opinion as to the artistic merit of the work in issue is
therefore irrelevant at this stage, though it might be relevant to
decision as to what action to take in order to prevent fresh
(destruction or seizure of the item; Art. 204 § 3 CC ...).
The Cantonal Court duly scrutinised the paintings for a
aesthetic element. Having regard in particular to the number of
sexual features in each of the three (one of them, for instance,
contains eight erect members), it decided that the emphasis was on
sexuality in its offensive forms and that this was the
not to say sole, ingredient of the items in dispute. The Cassation
Division of the Federal Court agrees. The overall impression
by Müller's paintings is such as to be morally offensive to a
of normal sensitivity. The Cantonal Court's finding that they were
obscene was accordingly not in breach of federal law.
The appellants maintained that the publication element of the
was lacking. They are wrong.
The obscene paintings were on display in an exhibition open to the
public which had been advertised on posters and in the press.
was no condition of admission to 'Fri-Art 81', such as an
The paintings in dispute were thus made accessible to an
number of people, which is the criterion of publicity for the
of Article 204 CC ..."
Finally, the Criminal Cassation Division of the Federal Court
the alternative application for return of the paintings to be
inadmissible as it had not first been made before the cantonal
19. On 20 January 1988, the Sarine District Criminal Court granted
an application made by Josef Felix Müller on 29 June 1987 and
the return of the paintings.
On the basis that it had been requested in effect to reconsider
confiscation order it had made in 1982, the court held that it had
decide whether the order could stand "almost eight years later".
Hence, the reasons for its decision were as follows:
"In Swiss law, confiscation is a preventive measure in rem. This
already clear from the legislative text, which classifies Article
under the heading 'other measures' - the heading in the margin for
Articles 57-62 CC - and not under the subsidiary penalties
in Articles 51-56 CC ...
The confiscation of items or assets may admittedly constitute a
serious interference with property rights. It must be
and a more lenient order may thus be justified where it achieves
desired aim. Confiscation remains however the rule. It should be
departed from only where a more lenient order achieves the desired
... In this case, when the confiscation order was made in 1982,
statutory provision (Article 204 § 3 CC) would normally have
the destruction of the paintings. Giving a reasoned decision, the
court preferred a more lenient measure which achieved the aim of
security, whilst complying with the principle of proportionality ...
The measure itself should remain in force only as long as the
statutory requirements are satisfied ... .
It is true that the Code makes no provision for an order under
Article 58 to be subsequently discharged or varied. The
probably did not address itself to this question at the time,
provision was made whereby other measures, which were admittedly
more serious because they restricted personal liberty, could be
re-examined by a court of its own motion (Articles 42-44 CC). It
not follow that discharge or variation is completely illegal. The
Federal Court has, moreover, held that a measure should not remain
force where the circumstances justifying it cease to obtain ... .
Accordingly, the view must be taken that an order confiscating a
of art may subsequently be discharged or varied, either because
confiscated item is no longer dangerous and a measure is no longer
required, or because the necessary degree of security may be
by another more lenient measure (judgment of the Basle-Urban Court
Appeal of 19 August 1980, in the Fahrner case).
Judgments concerning freedom of expression and its scope often
to Article 10 §§ 1 and 2 (art. 10-1, art. 10-2) [of the
In this area, the decisions of the Convention authorities have a
direct influence on the Swiss legal system, by way of
individual liberties and judicial safeguards ...
In this case, where the applicant has availed himself of the
possibility of applying for the return of his paintings, the court
must consider whether the grounds on which it made the
order in the first place, which restricted J.F. Müller's freedom
expression, are still valid.
While the restriction was necessary in a democratic society in
and was justified by the need to safeguard and protect morality
the rights of others, the court considers, admittedly with some
hesitation, that the order may now be discharged. It should be
that the confiscation measure was not absolute but merely of
indeterminate duration, which left room to apply for a
It appears to the court that the preventive measure has now
its function, namely to ensure that such paintings are not
in public again without any precautions. Those convicted have
themselves admitted that the paintings could shock people. Once
order has achieved its aim, there is no reason why it should
Accordingly, the artist is entitled to have his works returned to
It is not necessary to attach any obligations to this decision.
If J.F. Müller decided to exhibit the three paintings again
he knows that he would be running the risk of further action by
courts under Article 204 of the Criminal Code.
Finally, it appears that by exhibiting three provocative paintings
a former seminary in 1982, J.F. Müller deliberately intended to
attention to himself and the organisers. Since then he has become
known for more 'demanding' works, to use the terms of the art
who gave evidence in 1982. Having achieved a certain repute, he
find it unnecessary to shock by resorting to vulgarity. In any
there is no reason to believe that he will use the three paintings
future to offend other people's moral sensibilities.
Josef Felix Müller recovered his paintings in March 1988.
II. Relevant domestic law
20. Article 204 of the Swiss Criminal Code provides:
"1. Anyone who makes or has in his possession any writings,
films or other items which are obscene with a view to trading in
distributing them or displaying them in public, or who, for the
purposes, imports, transports or exports such items or puts them
circulation in any way, or who openly or secretly deals in them or
publicly distributes or displays them or by way of trade supplies
for hire, or who announces or makes known in any way, with a view
facilitating such prohibited circulation or trade, that anyone is
engaged in any of the aforesaid punishable activities, or who
announces or makes known how or through whom such items may be
directly or indirectly procured, shall be imprisoned or fined.
2. Anyone supplying or displaying such items to a person under the
age of 18 shall be imprisoned or fined.
3. The court shall order the destruction of the items."
The Federal Court has consistently held that any works or items
offend, in a manner that is difficult to accept, the sense of
propriety, are obscene; the effect may be to arouse a normal
sexually or to disgust or repel him (Judgments of the Swiss
Court (ATF), vol. 83 (1957), part VI, pp. 19-25; vol. 86 (1960),
part IV, pp. 19-25; vol. 87 (1961), part IV, pp. 73-85); making
items available to an indeterminate number of people amounts to
"publication" of them.
21. The Federal Court held in 1963 that, for the purposes of
paragraph 3 of Article 204, if an obscene object was of undoubted
cultural interest, it was sufficient to withhold it from the
public in order to "destroy" it.
In its judgment of 10 May 1963 in the case of Rey v.
of Valais (ATF vol. 89 (1963), part IV, pp. 133-140), it held
alia "that, in making destruction mandatory, the legislature had
contemplation only the commonest case, publication of entirely
pornographic items". As "destruction is a measure as opposed to a
punishment", "it must not go beyond what is necessary to achieve
desired aim", that is to say "the protection of public morality".
court went on to state:
"In other words, 'destruction', as prescribed by Article 204 § 3
the Criminal Code, must protect public morality but go no further
that requirement warrants.
In the commonest case, that of pornographic publications devoid of
artistic, literary or scientific merit, the destruction will be
physical and irreversible, not just because of the lack of any
cultural value, but also because, in general, this is the only
adequate way of ultimately protecting the public from the danger
the confiscated items ... .
It is quite a different matter when one is dealing, as in the
case, with an irreplaceable or virtually irreplaceable work of
There is then a clash of two opposing interests, both of them
important in terms of the civilisation to which Switzerland
the moral and the cultural interest. In such a case, the
and the courts must find a way of reconciling the two. This court
thus held, in applying Article 204, that it must always be borne
mind that artistic creativity is itself subject to certain
of public morality, but that there must nonetheless be artistic
freedom ... .
It is, accordingly, a matter for the courts to consider in each
in view of all the circumstances, whether physical destruction is
essential or whether a more lenient measure suffices. The
requirement of Article 204 § 3 will, therefore, be complied with
the courts order that an obscene item devoid of any cultural value
to be physically destroyed, and, in respect of an item of
cultural interest, where effective steps are taken to withhold it
the general public and to make it available only to a limited
of serious specialists ... .
If such precautions are taken, Article 204 of the Criminal Code
not be applicable to items which are inherently obscene but of
cultural interest. A distinction must also be drawn between such
items and pure pornography. The cultural interest of an item
admittedly does not prevent it from being obscene. But it does
require the courts to determine with particular care what steps
be taken to prevent general access to the item, while making it
available to a well-defined number of serious connoisseurs; this
comply with the requirements of Article 204 § 3 of the Criminal
which, as has been shown, makes destruction mandatory but only as
measure whose effects must be in proportion to the intended aim ...
This particular case concerned seven ivory reliefs and thirty
of antique Japanese art; the court held that the requirement to
"destroy" them was met by placing them in a museum.
22. Previous to the Sarine District Criminal Court's decision of
20 January 1988 (see paragraph 19 above), the Basle-Urban Court of
Appeal had already discharged a confiscation order made pursuant
the Criminal Code. In a judgment of 29 August 1980, to which the
District Court referred, the Court of Appeal granted an application
restore to the heirs of the painter Kurt Fahrner a painting
confiscated in 1960, after he had been convicted of an infringement
freedom of religious belief and worship (Article 261 of the
The Court of Appeal held inter alia that as confiscation "always
interferes with the property rights of the person concerned, a
of restraint is called for and, in accordance with the principle
proportionality, such a measure must go no further than is
to maintain security". The court added (translation from the
"This principle applies, in particular, where (on account of its
distinctiveness) the item subject to confiscation is hard or
impossible to replace. Therefore the principle applies more
to a work of art (e.g. a painting) than to a weapon used to commit
offence ... . Finally, having regard to its preventive character,
measure should remain in force only for as long as the legal
requirements are satisfied ... ."
Accordingly, the view had to be taken that "an order confiscating
work of art may subsequently be discharged or varied, either
the confiscated item is no longer dangerous and the measure no
required, or because the necessary degree of security may be
by another more lenient measure".
In that particular case, the reasoning of the Court of Appeal was
"To apply present-day criteria, both parties agree with the court
the public's ideas of obscenity, immorality, indecency, blasphemy,
etc. have changed considerably in the last twenty years and have
become distinctly more liberal. Although the confiscated painting
undoubtedly liable to offend a great many people's religious
sensibilities even today, there is no reason to fear that, by
exhibiting it in a private or suitable public place, one would be
endangering religious harmony, public safety, morals or public
within the meaning of Article 58 of the Criminal Code ...
Whether there is a danger thus depends primarily on where the item
be confiscated is liable to end up ... . In this case, the
of the painting in a museum would at present clearly be
unobjectionable in the context of Article 58 of the Criminal Code.
However, even if the picture were to be returned unconditionally,
likelihood of misuse must be regarded as minimal because Fahrner,
deliberately set out, by means of a provocative exhibition, to
attention to himself as a painter and to his ideas and works, has
since died. There is no reason to believe that the applicants have
any intention of using the picture to offend other people's
sensibilities. At any rate, the picture would not lend itself to
a purpose (Article 261 of the Criminal Code) sufficiently to
the 1960 confiscation order to stand ... . Any danger of that kind
arising from the picture is no longer serious enough to justify
under Article 58 of the Criminal Code. Nor is there any reason to
hand this picture over to a scientific collection, i.e. a museum,
order to protect the public and morality. The confiscation order
should be discharged and the picture unconditionally returned to
applicants, whose main application is thus granted."
PROCEEDINGS BEFORE THE COMMISSION
23. The applicants applied to the Commission on 22 July 1983
(application no. 10737/84). Relying on Article 10 (art. 10)
of the Convention, they complained of their criminal conviction
sentence to a fine (hereinafter referred to as the "conviction")
of the confiscation of the pictures in dispute.
24. The Commission declared the application admissible on
6 December 1985.
In its report of 8 October 1986 (made under Article 31) (art. 31),
it took the view that there had been a breach of Article 10 (art.
in respect of the confiscation of the paintings (by eleven votes
three) but not in respect of the conviction (unanimously). The
of the Commission's opinion and the separate opinion contained in
report is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
25. At the hearing on 25 January 1988, the Government reiterated
the final submissions in their memorial, asking the Court to
"hold that there has been no violation of Article 10 (art. 10)
of the Convention in this case, either in relation to the
conviction and sentence to a fine or as regards the confiscation
the first applicant's paintings".
AS TO THE LAW
26. The applicants complained that their conviction and the
confiscation of the paintings in issue violated Article 10 (art.
of the Convention, which provides:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers. This Article (art. 10) shall not prevent
States from requiring the licensing of broadcasting, television or
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities,
restrictions or penalties as are prescribed by law and are
in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of
or crime, for the protection of health or morals, for the
of the reputation or rights of others, for preventing the
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
The Government rejected this contention. The Commission too
it with regard to the first of the measures complained of but
it with regard to the second.
27. The applicants indisputably exercised their right to freedom
of expression - the first applicant by painting and then
the works in question, and the nine others by giving him the
opportunity to show them in public at the "Fri-Art 81" exhibition
Admittedly, Article 10 (art. 10) does not specify that freedom of
artistic expression, in issue here, comes within its ambit; but
neither, on the other hand, does it distinguish between the
forms of expression. As those appearing before the Court all
acknowledged, it includes freedom of artistic expression - notably
within freedom to receive and impart information and ideas - which
affords the opportunity to take part in the public exchange of
cultural, political and social information and ideas of all kinds.
Confirmation, if any were needed, that this interpretation is
is provided by the second sentence of paragraph 1 of Article 10
(art. 10-1), which refers to "broadcasting, television or cinema
enterprises", media whose activities extend to the field of art.
Confirmation that the concept of freedom of expression is such as
include artistic expression is also to be found in Article 19 § 2
the International Covenant on Civil and Political Rights, which
specifically includes within the right of freedom of expression
information and ideas "in the form of art".
28. The applicants clearly suffered "interference by public
authority" with the exercise of their freedom of expression -
by reason of their conviction by the Sarine District Criminal Court
24 February 1982, which was confirmed by the Fribourg Cantonal
on 26 April 1982 and then by the Federal Court on 26 January 1983
(see paragraphs 14, 16 and 18 above), and secondly on account of
confiscation of the paintings, which was ordered at the same time
subsequently lifted (see paragraph 19 above).
Such measures, which constitute "penalties" or "restrictions", are
contrary to the Convention solely by virtue of the fact that they
interfere with freedom of expression, as the exercise of this
may be curtailed under the conditions provided for in paragraph 2
(art. 10-2). Consequently, the two measures complained of did not
infringe Article 10 (art. 10) if they were "prescribed by law",
had one or more of the legitimate aims under paragraph 2
of that Article (art. 10-2) and were "necessary in a democratic
society" for achieving the aim or aims concerned.
Like the Commission, the Court will look in turn at the
conviction and at the confiscation of the pictures from this point
I. The applicants' conviction
1. "Prescribed by law"
29. In the applicants' view, the terms of Article 204 § 1 of the
Swiss Criminal Code, in particular the word "obscene", were too
to enable the individual to regulate his conduct and consequently
neither the artist nor the organisers of the exhibition could
that they would be committing an offence. This view was not shared
the Government and the Commission.
According to the Court's case-law, "foreseeability" is one of the
requirements inherent in the phrase "prescribed by law" in
Article 10 § 2 (art. 10-2) of the Convention. A norm cannot be
regarded as a "law" unless it is formulated with sufficient
to enable the citizen - if need be, with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see the Olsson
of 24 March 1988, Series A no. 130, p. 30, § 61 (a)). The Court
however, already emphasised the impossibility of attaining
precision in the framing of laws, particularly in fields in which
situation changes according to the prevailing views of society
the Barthold judgment of 25 March 1985, Series A no. 90, p. 22, §
The need to avoid excessive rigidity and to keep pace with
circumstances means that many laws are inevitably couched in terms
which, to a greater or lesser extent, are vague (see, for example,
Olsson judgment previously cited, ibid.). Criminal-law provisions
obscenity fall within this category.
In the present instance, it is also relevant to note that there were
number of consistent decisions by the Federal Court on the
"publication" of "obscene" items (see paragraph 20 above). These
decisions, which were accessible because they had been published
which were followed by the lower courts, supplemented the letter
Article 204 § 1 of the Criminal Code. The applicants' conviction
therefore "prescribed by law" within the meaning of Article 10 § 2
(art. 10-2) of the Convention.
2. The legitimacy of the aim pursued
30. The Government contended that the aim of the interference
complained of was to protect morals and the rights of others. On
latter point, they relied above all on the reaction of a man and
daughter who visited the "Fri-Art 81" exhibition (see paragraph 12
The Court accepts that Article 204 of the Swiss Criminal Code is
designed to protect public morals, and there is no reason to
that in applying it in the instant case the Swiss courts had any
objectives that would have been incompatible with the Convention.
Moreover, as the Commission pointed out, there is a natural link
between protection of morals and protection of the rights of
The applicants' conviction consequently had a legitimate aim under
Article 10 § 2 (art. 10-2).
3. "Necessary in a democratic society"
31. The submissions of those appearing before the Court focused on
the question whether the disputed interference was "necessary in a
democratic society" for achieving the aforementioned aim.
In the applicants' view, freedom of artistic expression was of
fundamental importance that banning a work or convicting the artist
an offence struck at the very essence of the right guaranteed in
Article 10 (art. 10) and had damaging consequences for a
society. No doubt the impugned paintings reflected a conception of
sexuality that was at odds with the currently prevailing social
morality, but, the applicants argued, their symbolical meaning had
be considered, since these were works of art. Freedom of artistic
expression would become devoid of substance if paintings like those
Josef Felix Müller could not be shown to people interested in the
as part of an exhibition of experimental contemporary art.
In the Government's submission, on the other hand, the
was necessary, having regard in particular to the subject-matter
the paintings and to the particular circumstances in which they
For similar reasons and irrespective of any assessment of artistic
symbolical merit, the Commission considered that the Swiss courts
could reasonably hold that the paintings were obscene and were
entitled to find the applicants guilty of an offence under Article
of the Criminal Code.
32. The Court has consistently held that in Article 10 § 2
(art. 10-2) the adjective "necessary" implies the existence of a
"pressing social need" (see, as the most recent authority, the
judgment of 8 July 1986, Series A no. 103, p. 25, § 39). The
Contracting States have a certain margin of appreciation in
whether such a need exists, but this goes hand in hand with a
supervision, embracing both the legislation and the decisions
it, even those given by an independent court (ibid.). The Court is
therefore empowered to give the final ruling on whether a
"restriction" or "penalty" is reconcilable with freedom of
as protected by Article 10 (art. 10) (ibid.).
In exercising its supervisory jurisdiction, the Court cannot
itself to considering the impugned court decisions in isolation;
must look at them in the light of the case as a whole, including
paintings in question and the context in which they were
The Court must determine whether the interference at issue was
"proportionate to the legitimate aim pursued" and whether the
adduced by the Swiss courts to justify it are "relevant and
sufficient" (see the same judgment, p. 26, § 40).
33. In this connection, the Court must reiterate that freedom of
expression, as secured in paragraph 1 of Article 10 (art. 10-1),
constitutes one of the essential foundations of a democratic
indeed one of the basic conditions for its progress and for the
self-fulfilment of the individual. Subject to paragraph 2
(art. 10-2), it is applicable not only to "information" or "ideas"
that are favourably received or regarded as inoffensive or as a
of indifference, but also to those that offend, shock or disturb
State or any section of the population. Such are the demands of
pluralism, tolerance and broadmindedness without which there is no
"democratic society" (see the Handyside judgment of 7 December
Series A no. 24, p. 23, § 49). Those who create, perform,
or exhibit works of art contribute to the exchange of ideas and
opinions which is essential for a democratic society. Hence the
obligation on the State not to encroach unduly on their freedom of
34. Artists and those who promote their work are certainly not
immune from the possibility of limitations as provided for in
paragraph 2 of Article 10 (art. 10-2). Whoever exercises his freedom
expression undertakes, in accordance with the express terms of
paragraph, "duties and responsibilities"; their scope will depend
his situation and the means he uses (see, mutatis mutandis, the
Handyside judgment previously cited, p. 23, § 49). In considering
whether the penalty was "necessary in a democratic society", the
cannot overlook this aspect of the matter.
35. The applicants' conviction on the basis of Article 204 of the
Swiss Criminal Code was intended to protect morals. Today, as at
time of the Handyside judgment (previously cited, p. 22, § 48), it
not possible to find in the legal and social orders of the
States a uniform European conception of morals. The view taken of
requirements of morals varies from time to time and from place to
place, especially in our era, characterised as it is by a
evolution of opinions on the subject. By reason of their direct
continuous contact with the vital forces of their countries, State
authorities are in principle in a better position than the
international judge to give an opinion on the exact content of
requirements as well as on the "necessity" of a "restriction" or
"penalty" intended to meet them.
36. In the instant case, it must be emphasised that - as the Swiss
courts found both at the cantonal level at first instance and on
appeal and at the federal level - the paintings in question depict
a crude manner sexual relations, particularly between men and
(see paragraphs 14, 16 and 18 above). They were painted on the spot
in accordance with the aims of the exhibition, which was meant to
spontaneous - and the general public had free access to them, as
organisers had not imposed any admission charge or any age-limit.
Indeed, the paintings were displayed in an exhibition which was
unrestrictedly open to - and sought to attract - the public at
The Court recognises, as did the Swiss courts, that conceptions of
sexual morality have changed in recent years. Nevertheless, having
inspected the original paintings, the Court does not find
the view taken by the Swiss courts that those paintings, with
emphasis on sexuality in some of its crudest forms, were "liable
grossly to offend the sense of sexual propriety of persons of
sensitivity" (see paragraph 18 above). In the circumstances,
regard to the margin of appreciation left to them under Article 10 §
(art. 10-2), the Swiss courts were entitled to consider it
for the protection of morals to impose a fine on the applicants
publishing obscene material.
The applicants claimed that the exhibition of the pictures had not
given rise to any public outcry and indeed that the press on the
was on their side. It may also be true that Josef Felix Müller has
been able to exhibit works in a similar vein in other parts of
Switzerland and abroad, both before and after the "Fri-Art 81"
exhibition (see paragraph 9 above). It does not, however, follow
the applicants' conviction in Fribourg did not, in all the
circumstances of the case, respond to a genuine social need, as
affirmed in substance by all three of the Swiss courts which dealt
with the case.
37. In conclusion, the disputed measure did not infringe
Article 10 (art. 10) of the Convention.
II. The confiscation of the paintings
1. "Prescribed by law"
38. In the applicants' submission, the confiscation of the
paintings was not "prescribed by law" for it was contrary to the
and unambiguous terms of Article 204 § 3 of the Swiss Criminal
which lays down that items held to be obscene must be destroyed.
The Government and the Commission rightly referred to the
of Swiss case-law with regard to this provision, beginning with
Federal Court's judgment of 10 May 1963 in the Rey case; since
where an obscene item is of cultural interest and difficult or
impossible to replace, such as a painting, it has been sufficient,
order to satisfy the requirements of Article 204 § 3 of the
Code, to take whatever measures the court considers essential to
withhold it from the general public (see paragraph 21 above). In
1982, confiscation was the measure envisaged under the relevant
case-law and was as a rule employed for this purpose. Accessible
the public and followed by the lower courts, this case-law has
alleviated the harshness of Article 204 § 3. The impugned measure
consequently "prescribed by law" within the meaning of Article 10 §
(art. 10-2) of the Convention.
2. The legitimacy of the aim pursued
39. The confiscation of the paintings - the persons appearing
before the Court were in agreement on this point - was designed to
protect public morals by preventing any repetition of the offence
which the applicants were charged. It accordingly had a legitimate
aim under Article 10 § 2 (art. 10-2).
3. "Necessary in a democratic society"
40. Here again, those appearing before the Court concentrated
their submissions on the "necessity" of the interference.
The applicants considered the confiscation to be disproportionate
relation to the aim pursued. In their view, the relevant courts
have chosen a less Draconian measure or, in the interests of
protecting human rights, could have decided to take no action at
They claimed that by confiscating the paintings the Fribourg
authorities in reality imposed their view of morals on the country
a whole and that this was unacceptable, contradictory and contrary
the Convention, having regard to the well-known diversity of
on the subject.
The Government rejected these contentions. In declining to take
drastic measure of destroying the paintings, the Swiss courts took
minimum action necessary. The discharge of the confiscation order
20 January 1988, which the first applicant could have applied for
earlier, clearly showed that the confiscation had not offended the
proportionality principle; indeed, it represented an application
The Commission considered the confiscation of the paintings to be
disproportionate to the legitimate aim pursued. In its view, the
judicial authorities had no power to weigh the conflicting
involved and order measures less severe than confiscation for an
41. It is clear that notwithstanding the apparently rigid terms of
paragraph 3 of Article 204 of the Criminal Code, the case-law of
Federal Court allowed a court which had found certain items to be
obscene to order their confiscation as an alternative to
In the present case, it is the former measure which has to be
considered under Article 10 § 2 (art. 10-2) of the Convention.
42. A principle of law which is common to the Contracting States
allows confiscation of "items whose use has been lawfully adjudged
illicit and dangerous to the general interest" (see, mutatis
the Handyside judgment previously cited, Series A no. 24, p. 30,
§ 63). In the instant case, the purpose was to protect the public
from any repetition of the offence.
43. The applicants' conviction responded to a genuine social need
under Article 10 § 2 (art. 10-2) of the Convention (see paragraph
above). The same reasons which justified that measure also apply
the view of the Court to the confiscation order made at the same
Undoubtedly, as the applicants and the Commission rightly
a special problem arises where, as in the instant case, the item
confiscated is an original painting: on account of the measure
the artist can no longer make use of his work in whatever way he
wish. Thus Josef Felix Müller lost, in particular, the opportunity
showing his paintings in places where the demands made by the
protection of morals are considered to be less strict than in
It must be pointed out, however, that under case-law going back to
Fahrner case in 1980 and which was subsequently applied in the
case (see paragraphs 19 and 22 above), it is open to the owner of
confiscated work to apply to the relevant cantonal court to have
confiscation order discharged or varied if the item in question no
longer presents any danger or if some other, more lenient, measure
would suffice to protect the interests of public morals. In its
decision of 20 January 1988, the Sarine District Criminal Court
that the original confiscation "was not absolute but merely of
indeterminate duration, which left room to apply for a
reconsideration" (see paragraph 19 above). It granted Mr. Müller's
application because "the preventive measure [had] fulfilled its
function, namely to ensure that such paintings [were] not exhibited
public again without any precautions" (ibid.).
Admittedly, the first applicant was deprived of his works for
eight years, but there was nothing to prevent him from applying
earlier to have them returned; the relevant case-law of the Basle
Court of Appeal was public and accessible, and, what is more, the
Agent of the Government himself drew his attention to it during
Commission's hearing on 6 December 1985; there is no evidence
the Court to show that such an application would have failed.
That being so, and having regard to their margin of appreciation,
Swiss courts were entitled to hold that confiscation of the
in issue was "necessary" for the protection of morals.
44. In conclusion, the disputed measure did not infringe
Article 10 (art. 10) of the Convention.
FOR THESE REASONS, THE COURT
1. Holds by six votes to one that the applicants' conviction did
infringe Article 10 (art. 10) of the Convention;
2. Holds by five votes to two that the confiscation of the
did not infringe Article 10 (art. 10) of the Convention.
Done in English and in French, and delivered at a public hearing
the Human Rights Building, Strasbourg, on 24 May 1988.
Signed: Rolv RYSSDAL
Signed: Marc-André EISSEN
In accordance with Article 51 § 2 (art. 51-2) of the Convention
Rule 52 § 2 of the Rules of Court, the following separate opinions
annexed to this judgment:
(a) dissenting opinion of Mr. Spielmann;
(b) partly concurring and partly dissenting opinion of Mr. De
DISSENTING OPINION OF JUDGE SPIELMANN
1. In his separate opinion, Mr. H. Danelius of the Commission
stated inter alia as follows:
"In my view, the Commission should have asked whether, taken
the two measures" [fine and confiscation] "constituted a violation
his right to freedom of expression as protected by Article 10
(art. 10) of the Convention, and my reply would have been that
2. I can only agree with this approach to the question, just as I
endorse Mr. Danelius completely when he states:
"I believe Mr. Müller's fine and the fines imposed on the other
applicants for exhibiting the three paintings at Fribourg are a
complex matter since the question arises whether there is any real
need, in modern society, to punish such expression of artistic
creativity, even though some may find them offensive or even
3. However, I do not agree with the following conclusion reached
by Mr. Danelius:
"In the end, though, I voted with the rest of the Commission on
matter, wishing to conform to European Court case-law,
Handyside. There the Court pointed out that 'it is not possible to
find in the domestic law of the various Contracting States a
European conception of morals' and that the requirements of morals
vary 'from time to time and from place to place, especially in our
which is characterised by a rapid and far-reaching evolution of
opinions on the subject'. The Court added that 'by reason of their
direct and continuous contact with the vital forces of their
countries, State authorities are in principle in a better position
than the international judge to give an opinion on the exact
of these requirements'."
4. In purely logical terms I find it very difficult to regard the
fines imposed as coming within the requirements of Article 10
(art. 10) of the Convention and, on the other hand, to agree with
Commission that the confiscation of the paintings did not comply
the requirements of that Article (art. 10).
5. I believe the two matters are indistinguishable. Either there
has been a violation of the Convention both in respect of the
and the confiscation, or there has been no violation at all.
6. My view is that there has been a violation of Article 10
(art. 10) of the Convention. I will explain this view without
any distinction between the fines imposed and the confiscation
7. A. Prescribed by law
I agree entirely with the finding of the majority of the Court
the convictions and confiscation order were prescribed by law.
8. B. Legitimate nature of the aim
I have no reason to doubt that these decisions had a legitimate
under Article 10 § 2 (art. 10-2) of the Convention.
9. C. "Necessary in a democratic society"
The majority of the Court recognises "that conceptions of sexual
morality have changed in recent years. Nevertheless, having
the original paintings, the Court does not find unreasonable the
taken by the Swiss courts that those paintings, with their emphasis
sexuality in some of its crudest forms, were 'liable grossly to
the sense of sexual propriety of persons of ordinary
Furthermore, this was "an exhibition which was unrestrictedly open
- and sought to attract - the public at large." In the
having regard to the margin of appreciation left to them under
Article 10 § 2 (art. 10-2), [the Swiss courts] were entitled to
consider it 'necessary' for the protection of morals to impose a
on the applicants for publishing obscene material."
As regards the confiscation of the disputed paintings, the majority
the Court also considers that "having regard to the margin of
appreciation, the Swiss courts were entitled to hold that
confiscation of the paintings in issue was 'necessary' for the
protection of morals".
10. I cannot agree with this opinion for the following reasons.
(a) Relativity of the notion of "obscenity"
There are numerous examples in the press, literature and painting
which should teach us to be more prudent in this field. Freedom of
expression is the rule and interferences by the State, properly
justified, must remain the exception.
For example, in 1857, Flaubert was prosecuted for his last novel
In the same year, on 20 August 1857 to be precise, Charles
and his publishers were summoned before the same Regional Criminal
Court of the Seine. The subject-matter of the proceedings: "Les
Fleurs du Mal".
In the context of this case, it is not inappropriate to recall
trial (see appendix).
In my opinion, the Contracting States should take greater account
the notion of the relativity of values in the field of the
If, of necessity, we may regard State authorities as being in
principle in a better position than the international court to give
opinion on the exact content of the requirements of Article 10
(art. 10) of the Convention, it remains unacceptable in a Europe
composed of States that the State in question should leave such an
assessment to a canton or a municipal authority.
If this were to be the case, it would clearly be impossible for an
international court to find any violation of Article 10 (art. 10)
as the second paragraph of that Article would always apply
(b) "Margin of appreciation" of national authorities
It is not necessary to repeat the Court's case-law in this regard.
I believe however that there are limits to this concept.
Otherwise, many of the guarantees laid down in the Convention might
in danger of remaining a dead letter, at least in practice.
Moreover, can it not be argued that all exaggeration is liable in
short or medium term to lose its significance?
As will be stated below, I do not believe that the notion of "the
margin of appreciation" justified the decisions taken by the Swiss
authorities as these measures were in no respect necessary in a
(c) The criterion of "necessity"
In concluding that the decisions taken were in no respect necessary
a democratic society, I would rely on the following two arguments:
1. Although convicting the applicants in criminal proceedings, the
Swiss authorities did not order the destruction of the disputed
paintings, despite a formal provision in their criminal code.
2. Although they ordered the confiscation of the disputed
the authorities agreed in 1988 to restore these items.
In other words, can it seriously be argued that what was
in 1987 is no longer so in 1988, or, what is certainly no longer
"necessary" in 1988, was necessary in 1982?
I do not understand this reasoning.
11. In these circumstances, I conclude that there was a violation
of Article 10 (art. 10) of the Convention both as regards the
imposed and the confiscated - albeit returned - pictures.
The "Baudelaire" case : "Les Fleurs du Mal"
On 20 August 1857, the 6th Criminal Chamber of the Seine Regional
Court delivered the following judgment:
"The Regional Court,
Whereas Baudelaire, Poulet-Malassis and de Broisse have offended
against public morality, imposes a fine of 300 Francs on
and 100 Francs each on Poulet-Malassis and de Broisse;
Orders the destruction of documents nos. 20, 30, 39, 80, 81 and 87
the book of documents ..."
This conviction followed the formal address by the public
representative, who cited inter alia the following verses in
of the prosecution case :
"Je sucerai, pour noyer ma rancoeur,
Le népenthès et la bonne ciguë
Aux bouts charmants de cette gorge aiguë
Qui n'a jamais emprisonné de coeur ..."
"Moi, j'ai la lèvre humide et je sais la science
De perdre au fond d'un lit l'antique conscience.
Je sèche tous les pleurs sur mes seins triomphants
Et fais rire les vieux du rire des enfants.
Je remplace, pour qui me voit nue et sans voiles,
La lune, le soleil, le ciel et les étoiles !"
After these quotations, the public prosecutor's representative
"Gentlemen, ..., I say to you: take a stand by your judgment in
case against these growing, unmistakable tendencies, against this
unhealthy fever which seeks to paint everything, to write
and to say everything, as though the crime of offending public
morality had been abolished and that morality no longer existed.
Paganism had its shameful manifestations which may be found in the
ruins of the destroyed cities of Pompeii and Herculanum. However,
the temple and in public places, its statues have a chaste nudity.
Its artists follow the cult of plastic beauty; they make
shapes out of the human body and do not depict it as being debased
throbbing in the stranglehold of debauchery; they respected
In our society immersed in Christianity, show at least the same
Baudelaire's defence lawyer, Maître Gustave Chaix d'Est-Ange,
After the title "Les Fleurs du Mal" comes the epigraph: all the
author's thinking is there, the entire spirit of the book; it is in
way a second title, more explicit than the first, explaining,
commenting and elaborating upon it:
'On dit qu'il faut couler les exécrables choses
Dans le puits de l'oubli et au sépulchre encloses,
Et que par les escrits le mal résuscité
Infectera les moeurs de la postérité;
Mais le vice n'a point pour mère la science,
Et la vertu n'est pas mère de l'ignorance.'"
(Th. Agrippa d'Aubigné, les Tragiques, livre II)
Maître Gustave Chaix d'Est-Ange went on to state:
"The intimate thoughts of the author are even more clearly
in the first poem which he dedicates to the reader as a warning:
'La sottise, l'erreur, le péché, la lésine,
Occupent nos esprits et travaillent nos corps.
Et nous alimentons nos aimables remords,
Comme les mendiants nourrissent leur vermine.
Nos péchés sont têtus, nos repentirs sont lâches;
Nous nous faisons payer grassement nos aveux;
Et nous rentrons gaîment dans le chemin bourbeux,
Croyant par de vils pleurs laver toutes nos taches.
C'est le Diable qui tient les fils qui nous remuent!
Aux objets répugnants nous trouvons des appas.
Chaque jour vers l'Enfer nous descendons d'un pas,
Sans horreur, à travers des ténèbres qui puent.'"
Baudelaire's lawyer added:
"Gentlemen, change this into prose, delete the rhyme and the
grasp the substance of this powerful and vivid language and the
underlying intentions; and tell me if we have ever heard this
being delivered from the Christrian pulpit, from the lips of some
fiery preacher; tell me if the same thoughts would not be found,
perhaps sometimes even the same expressions, in the homilies of
strict and unsophisticated father of the Church".
On 31 May 1949, at the request of the Société des gens de lettres,
Paris Court of Cassation in a decision on the merits, quashed the
above-mentioned judgment of the Seine Regional Court on the
"Whereas the prohibited poems do not contain any obscene or even
term and do not exceed the licence which the artist is permitted
Whereas accordingly, the crime of offending public morality is not
Quashes the judgment of 20 August 1857, restores the good name of
Baudelaire, Poulet-Malassis and de Broisse ..."
When Baudelaire's good name was thus restored, he had already been
dead more than 80 years.
In legal terms, this was quite simply a miscarriage of justice.
(Source: "Le procès des Fleurs du Mal" - 'Le journal des procès' no.
1986 - Bruxelles, Ed. Justice et Société)
SEPARATE OPINION, PARTLY CONCURRING AND PARTLY DISSENTING, OF JUDGE
Art, or what claims to be art, certainly falls within the sphere
freedom of expression.
There is no need at all to try to see it was a vehicle for
communicating information or ideas ¹: it may be that but it is
doubtful whether it is necessarily so.
¹ See paragraph 27 of the judgment.
Whilst the right to freedom of expression "shall include" or
"includes" the freedom to "seek", to "receive" and to "impart"
"information" and "ideas"², it may also include other things. The
external manifestation of the human personality may take very
different forms which cannot all be made to fit into the
² See Article 10 (art. 10) of the European Convention on Human
Rights, Article 19 of the International Covenant on Civil and
Political Rights and Article 19 of the Universal Declaration of
It is only with some hesitation that I have come to the view that
courts of the defendant State did not infringe the applicants'
to freedom of expression by imposing on them the fines at issue in
That I was finally able to form this view owed much to the fact
the paintings in question were exhibited in rather special
circumstances³. This factor made it possible for the Swiss courts
properly to determine, without going beyond the limits of their
discretionary power, that to impose these fines was "necessary in
³ See the first sub-paragraph of paragraph 36 of the judgment.
It might have been otherwise if these paintings had been exhibited
The particular nature of the circumstances of their exhibition in
Fribourg in 1981 leads me, moreover, to believe that it has not
shown that in this case it was necessary to confiscate the
Rather it seems to me that such confiscation went beyond what could
considered necessary and that the fines were sufficient on their
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