CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 17634/91 by S. and G. against the United Kingdom             The European Commission of Human Rights sitting in private on 2 September 1991, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. JÖRUNDSSON                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   L. LOUCAIDES                      J.C. GEUS                      A.V. ALMEIDA RIBEIRO                      M.P. PELLONPÄÄ                      B. MARXER                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 10 October 1990 by S. and G. against the United Kingdom and registered on 9 January 1991 under file No. 17634/91;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is a British citizen, born in 1945 and resident in London.   He is a private art gallery curator by profession.   The second applicant is a Canadian citizen, born in 1951 and resident in Vancouver.   He is a fine artist/sculptor by profession. They are represented before the Commission by Messrs.   Stephens Innocent, Solicitors, London.           The facts of the present case, as submitted by the applicants, may be summarised as follows:   A.       The particular circumstances of the case           The second applicant was to exhibit, as of 1 December 1987, in the first applicant's gallery one of his sculptures, "Human Earrings", as part of an exhibition entitled "Animals".   This sculpture consisted of a model's head which had attached to each of its ears an earring made out of a freeze-dried human foetus, of three to four months' gestation, by screwing a fitting into the foetus' skull and attaching the upper end of the fitting to the lobe of the model's ear.           Without the consent of the first applicant or his gallery, the second applicant had published a press release about the sculpture and his other work, which attracted much media attention.   On 1 December 1987, soon after the exhibition opened, the police attended the gallery and seized the sculpture.   Subsequently the applicants were charged with and convicted, by jury trial, of the offence of outraging public decency, an offence under English common law.   Unlike offences under the Obscene Publications Act 1959, the applicants had no possibility of submitting that the sculpture had overriding artistic merit as a defence to the charge.   The first applicant was fined £350, or 21 days' imprisonment, and the second applicant £500, or 28 days' imprisonment.   The Court of Appeal rejected the applicants' appeal on 10 July 1990.           From newspaper reports of the Court of Appeal's judgment it appears that the applicants had claimed that there was no common law offence of outraging public decency and that they should have only been prosecuted, if at all, under section 2 of the Obscene Publications Act 1959, qualified by the statutory defence of intrinsic artistic merit (section 2(4) of that Act).   The Lord Chief Justice held that the offence of outraging public decency had been established since 1973 in the case of R v.   Knuller (Publishing, Printing and Promotions) Ltd. ((1973) AC 435, 493).   The Court considered that there was a factual and moral difference between the offence under the 1959 Act, prohibiting things which by the recognised standards of propriety tend to deprave and corrupt public morals, and the offence of outraging public decency, aimed at material which tended to engender revulsion, disgust and outrage, whether or not public morals were involved.   The Court also rejected the applicants' submission that for such a common law charge to succeed the prosecution had to prove a specific form of mens rea (intention or recklessness) regarding the outrage to public decency.   Their Lordships considered that this was not a necessary element of the offence.   It sufficed that there was an intention to do an act which in fact outraged public decency.   It may even be the case that the outrage was unintentional, yet the public had the right to be protected regardless of the defendant's state of mind.   The Court of Appeal refused the applicants leave to appeal to the House of Lords.   B.       The relevant domestic law and practice           According to the applicants, the generalised offence of outraging public decency was first declared to exist by the House of Lords in the case of R v.   Knuller (Publishing, Printing and Promotions) Ltd. ((1973) AC 435), following an obiter statement in the case of Shaw v. the Director of Public Prosecutions ((1962) AC 220).           There had been a successful earlier prosecution in 1963 concerning homosexual acts in public places, when an individual had been convicted of having committed an act of a lewd, obscene and disgusting nature which outraged public decency (R v.   Mayerling (1963) 2 Q.B. 717).   In that case the Court of Criminal Appeal had held that it was well established that there was a common law offence of comitting an act outraging public decency.   In the aforementioned Shaw case in 1962, Lord Reid had stated as follows:           "I shall not examine the authorities because I think         they establish that it is an indictable offence to say         or do or exhibit anything in public which outrages         public decency, whether or not it also tends to corrupt         or deprave those who see or hear it."           The Solicitor General stated in 1964 that this common law offence would not be used to circumvent section 2 of the Obscene Publications Act 1959, subparagraph 4 of which provides, on prosecution for publishing obscene material, a defence of intrinsic artistic merit.           The common law offence was further clarified and applied to certain dating advertisements in a magazine for homosexuals in the Knuller case when the House of Lords confirmed the aforementioned view of Lord Reid.   In the Knuller judgment Lord Simon stressed certain features of the offence which should be brought to a jury's attention by the trial judge:           "It should be emphasised that 'outrage', like 'corrupt', is         a very strong word.   'Outraging public decency' goes         considerably beyond offending the susceptibilities of,         or even shocking, reasonable people.   Moreover the offence         is ... concerned with recognised minimum standards of         decency, which are likely to vary from time to time.         Finally, notwithstanding that 'public' in the offence is         used in a locative sense, public decency must be viewed         as a whole; and ... the jury should be invited, where         appropriate, to remember that they live in a plural         society, with a tradition of tolerance towards minorities,         and that this atmosphere of toleration is itself part of         public decency." COMPLAINTS           The applicants complain that there has been an unjustified interference with their freedom of expression contrary to Article 10 of the Convention.   They contend that freedom of artistic expression, including the creation and promotion of works of art, is protected by this Convention provision (Eur.   Court H.R., Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19, para. 27).   They also submit that the interference in question was neither prescribed by law nor necessary in a democratic society for the protection of morals.   The interference was disproportionate to any aims, given the absence of any balancing of the conflicting interests, as they had no opportunity to explain the reasons for, and the merits of, their actions by way of a defence to the criminal charge.     THE LAW           The applicants complain that their conviction and sentence for outraging public decency constituted an unjustified interference with their freedom of expression ensured by Article 10 (Art. 10) of the Convention, the relevant part of which reads as follows:           "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 ...           2.   The exercise of these freedoms, since it carries         with it duties and responsibilities, may be subject to         such ... restrictions or penalties as are prescribed         by law and are necessary in a democratic society ...         for the prevention of disorder or crime, for the         protection of health or morals ..."           Freedom of artistic expression falls within the ambit of the rights protected by Article 10 para. 1 (Art. 10-1) of the Convention.   This freedom consists not only in freedom to create works of art, but also in freedom to disseminate them through exhibitions (Eur.   Court H.R., Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19, para. 27, and Comm.   Report p. 43, para. 95).   The Commission finds that the applicants suffered an interference with the exercise of their freedom of expression by virtue of their conviction and sentence for outraging public decency, following their public exhibition of the second applicant's sculpture "Human Earrings".   These criminal proceedings clearly resulted in "penalties" being imposed upon the applicants, within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.   The Commission must, therefore, proceed to examine whether the interference in question was prescribed by law, pursued one or more of the legitimate aims under Article 10 para. 2 (Art. 10-2) and was necessary in a democratic society for achieving that aim or aims.           The applicants first contend that the prosecution for outraging public decency was not prescribed by law, being an offence of inadequate accessibility and forseeability, as these terms were defined in The Sunday Times case (Eur.   Court H.R., The Sunday Times judgment of 26 April 1979, Series A no. 30, pp. 30-31, paras. 47-49). They submit, inter alia, that the prosecution should have been founded, if at all, upon the statutory offence of obscenity contained in section 2 of the Obscene Publications Act 1959, which in its fourth subparagraph envisages a defence of intrinsic artistic merit.   This enables the trial court to balance the conflicting interests.           As the Court observed in the aforementioned Sunday Times case, the word "law" in the expression "prescribed by law" covers not only statute but also unwritten law.   No importance can therefore be attached to the fact that the offence for which the applicants were prosecuted was a creature of the common law and not of legislation. Whatever the source of the law, it must be sufficiently clear:           "In the Court's opinion, the following are two of the         requirements that flow from the expression 'prescribed         by law'.   Firstly, the law must be adequately accessible:         the citizen must be able to have an indication that is         adequate in the circumstances of the legal rules         applicable to a given case.   Secondly, a norm cannot be         regarded as a 'law' unless it is formulated with sufficient         precision to enable the citizen to regulate his conduct:         he must be able - 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.   Those         consequences need not be foreseeable with absolute certainty:         experience shows this to be unattainable.   Again, whilst         certainty is highly desirable, it may bring in its train         excessive rigidity and the law must be able to keep pace         with changing circumstances.   Accordingly, many laws are         inevitably couched in terms which, to a greater or lesser         extent, are vague and whose interpretation and application         are questions of practice." (Ibid. p. 31, para. 49)           As regards the facts of the present case, the Commission notes that the common law offence of outraging public decency has been clear, or "accessible", since the Knuller case in 1973, if not since the Mayerling case in 1963 (see Relevant domestic law and practice above).   Having regard to the judgment of Lord Simon in the Knuller case, it seems that it would have been open to the applicants to submit to the trial court that the sculpture in question was not an outrage to public decency, given that the atmosphere of tolerance is in itself part of public decency in a plural society.   It appears, therefore, that freedom of expression is not wholly irrelevant in a prosecution for this offence.   The domestic courts in the applicants' case explained the difference between the common law offence of outraging public decency and the statutory offence of obscenity as being a qualitative one of fact and morals, the former being concerned with more offensive material which engenders such revulsion, disgust and outrage that it is irrelevant whether its consequence is actually to undermine public morals.   This distinction, in the Commission's view, meets the applicants' objection that they could not have foreseen a prosecution for that offence, rather than a prosecution, if at all, under section 2 of the Obscene Publications Act 1959.   The Commission finds, therefore, that the applicants did have an indication, sufficient in the circumstances, of the existence of the offence of outraging public decency.   The interference with the applicants' freedom of expression was thus "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.           The applicants concede that the interference with their freedom of expression may fall within the legitimate aim of protecting morals, as envisaged by Article 10 para. 2 (Art. 10-2) of the Convention.   The Commission finds that the facts of the present case confirm that the applicants were prosecuted for the purpose of protecting morals.           The applicants' contend, however, that the restriction on their freedom of expression was disproportionate, given the limitations on their defence to the charge of outraging public decency.   They submit, inter alia, that their conviction will have a chilling effect on the artistic community as a whole, with art galleries being extremely cautious in the future to exhibit controversial work for fear of such prosecutions.   The balanced protection of the Obscene Publications Act 1959 can now be circumvented by framing a prosecution on the basis that the article is offensive and disgusting rather than obscene, a distinction which, in their view, is impossible in reality to make.           The Commission notes the wide margin of appreciation afforded to States in the protection of morals, given the absence of any uniform European conception.   Artists are not immune from restrictions on their work for this purpose, having particular regard to the express reference to their duties and responsibilities in Article 10 para. 2 (Art. 10-2) of the Convention.   By reason of their direct and continuous contact with the vital forces of their countries, States are in principle in a better position than the Convention organs to assess the necessity of a restriction on artistic freedom of expression for the protection of morals (Eur.   Court H.R., Müller and Others judgment of 24 May 1988, Series A no. 133, p. 22, paras. 33-35).           As regards the facts of the present case, the Commission notes that the second applicant's sculpture used two freeze-dried foetuses of three to four months' gestation as earrings.   The sculpture was displayed in an exhibition which was open to, and sought to attract the public.   In the circumstances, the Commission does not find unreasonable the view taken by the English courts that this work was an outrage to public decency.   Having regard to the margin of appreciation left to them under Article 10 para. 2 (Art. 10-2) of the Convention, the domestic courts were entitled to consider it "necessary" for the protection of morals to impose a fine on the applicants for exhibiting the piece.   It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission                (H.C. KRÜGER)                       (C.A. NØRGAARD)