CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 mai 1997

.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. 26712/95                       by Timo Juhani LARMELA                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 28 May 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 13 March 1995 by Timo Juhani LARMELA against Finland and registered on 16 March 1995 under file No. 26712/95;         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 applicant is a Finnish citizen, a chief designer born in 1947 and resident in Helsinki. He is represented before the Commission by Mr Matti Wuori, a lawyer practising in Helsinki.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1991 the applicant founded together with some others an association called the Cannabis Association of Finland (Suomen kannabisyhdistys, Finlands cannabis föreningen) whose aim was "to influence intoxicant policy and legislation with a view to making the use, availability and domestic cultivation for personal use of cannabis legal for Finnish citizens of age as well as to study the use of cannabis in different cultures and periods of time".         On 14 November 1991 the association represented by the applicant, who was then and still is its president, requested registration in the register of associations kept by the Registry of Associations (yhdistysrekisteritoimisto, föreningsregisterbyrån) of the Ministry of Justice in order to obtain the rights belonging to a registered association.         The legal consequences of the registration of an association are according to chapter 1 section 6 of the Associations Act (yhdistyslaki, föreningslag) No. 503/1989 the following:         (Translation)         "An association may acquire rights and conclude legal acts       and have a standing before a court and other authorities if       it has been registered in accordance with the provisions of       this Act.         The members of a registered association shall not be       personally liable for the obligations of the association."         On the other hand, chapter 10 section 58 of the same Act reads as follows:         (Translation)         "An association which has not been registered cannot in its       own name hold rights, commit itself or act as a plaintiff       or a defendant in a trial.         Those, who have participated in or decided on an act       concluded on behalf of an unregistered association, shall       be personally as well as jointly and severally liable for       an obligation which results thereof. The other members of       the association shall not be personally liable for such an       obligation."         On 5 May 1993 the Ministry of Justice refused to enter the association into its register. As reasons therefor the Ministry stated, inter alia, as follows:         (Translation)         "... the aim of the association ... must be regarded as       being against public decency and morals because the aim in       its presented form is contrary to the prevailing legal and       moral concepts of our society..."      The provisions on       which the Ministry based its decision were, inter alia, the       following:         Chapter 1 section 1 subsection 1 of the Associations Act:         (Translation)         "An association may be founded for the common realisation       of an ideological aim. The aim may not be contrary to law       or public decency and morals."         Chapter 9 section 49 subsection 1 (3) of the same Act:         (Translation)         "The Ministry of Justice shall on the basis of the       information given in the report for entry control that       ...       3) the provisions of chapter 1 of this Act do not pose       obstacles in the way of registering the association."         On 6 June 1993 the applicant in his capacity as president of the association appealed against the decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). He argued, inter alia, that the Ministry had exceeded its authority when considering that the social views the association represented, i.e. its opinion of criminal and control policies, as such prevented the registration of the association. He maintained that this practice was contrary to the basic principles of a pluralistic society and that the interpretation of the concept of public decency and morals should be tolerant. He submitted that in case an association after registration was found to act in a way which could justifiably be regarded as dangerous or harmful in a democratic society, measures could be taken afterwards. In his opinion, if an association was not registered, its aim could not be fulfilled in an effective way, since it lacked legal personality. Without legal personality the association was under Finnish law unable to arrange collections of money legally in order to support its activities. As the association was refused the right to register, he was denied, effectively, the right to freedom of association and expression. The applicant referred to national provisions concerning civil rights and associations and to the Convention.         According to the Law on Collection of Money (rahankeräyslaki, lag om penninginsamlingar) No. 590/1980, which was partly amended by Act No. 681/1983, inter alia, the following requirements are to be fulfilled:         (Translation)         "Section 2 subsection 1. A collection of money may be       realised in order to obtain money for a social, cultural or       ideological purpose or for citizens' public activities."         "Section 3. A collection of money requires a permit.         A permit is not needed if the organiser of a public meeting       collects money from the participants."         "Section 4. The permit may be granted only to a Finnish       association which is registered or another society or       independent foundation whose aim is entirely social,       cultural or ideological (the grantee of the permit).         The permit may be granted only providing that the       collection is appropriate from the point of view of the       public interest. ..."         On 16 September 1994, after inviting the Ministry of Justice and the applicant to submit statements, the Supreme Administrative Court ruled that the association's aim to change prevailing social concepts and legislation could not as such be regarded as contrary to public decency and morals. In evaluating whether the association's aim was against public decency and morals the nature of the advocated change had to be taken into account. In this connection the Court referred to a report of the Committee of Legal Affairs of the Parliament from 1993 to the effect that it was important that society clearly show its disapproval of the use of drugs. Considering that the association's aim was to encourage a habit detrimental to health and not yet common in Finland and that the use of the drug cannabis was a criminal offence the aim was in violation of public decency and morals. Therefore the Court upheld the Ministry's decision.         In addition to the above-mentioned provisions of the Associations Act the Supreme Administrative Court based its decision on, inter alia, the following provisions:         Section 10 of the Constitution Act of Finland (Suomen hallitusmuoto, regeringsform för Finland) No. 94/1919, as in force at the relevant time, which states as follows:         (Translation)         "A Finnish citizen has the right to freedom of speech and       the right to publish works in written form and in picture       form without advance interference as well as the right to,       without advance permission, assemble in order to discuss       affairs of public interest or for any other legitimate       purpose and the right to found associations in order to       realise aims which are not illegal or immoral.         Provisions concerning the exercise of these rights shall be       prescribed by law."         Chapter 10 section 59 subsection 1 of the Associations Act, which reads as far as relevant:         (Translation)         "In a matter which concerns an unregistered association the       president or the chairman of the board or another person,       who attends to the association's affairs, may act on its       behalf before a court or another authority. ..."     COMPLAINTS   1.     The applicant complains that his right to freedom of expression is violated, since the refusal to register the association makes it impossible to exercise this right in an effective way because the association cannot legally seek financial support from the public to help it to pursue its objectives. He maintains that the refusal amounts to censorship of opinion and prevention of dissemination of dissenting information merely because they do not conform to prevailing legal and moral opinions. He further maintains that this restriction is not necessary in a democratic society, since the concern with the protection of health cannot be regarded as a valid or sufficient reason. He invokes Article 10 of the Convention.   2.     Furthermore the applicant complains that his freedom of association is violated, since the above-mentioned consequences of the refusal to register the association make it impossible to exercise this right in an effective way. He refers to the same argument as above concerning the necessity of the restriction. He invokes Article 11 of the Convention.     THE LAW   1.     The applicant complains that the refusal to register the association violated his right to freedom of expression. He invokes Article 10 (Art. 10) of the Convention which reads as far as relevant:         "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. ..."         The Commission notes that the first question which arises in this case is whether the fact that the registration was refused constituted an interference within the meaning of Article 10 (Art. 10) of the Convention.         Article 10 (Art. 10) does not in itself grant a right to freedom of expression through a registered association (cf. No 7729/76, Dec. 17.12.76, D.R. 7, pp. 164 and 174). The fact that the association was denied registration does not therefore as such constitute an interference with the rights guaranteed by Article 10 (Art. 10). It follows that the rights under Article 10 (Art. 10) are independent of the right to have an association registered and do not include the latter right. In the present case the applicant has not been subjected to any restrictions in respect of his rights to hold opinions and to receive and impart information and ideas.         The Commission finds accordingly that there has been no interference with the applicant's right to freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1) . It follows that the applicant's complaints as submitted under Article 10 (Art. 10) are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains that the above-mentioned refusal also violated his right to freedom of association. He invokes Article 11 (Art. 11) of the Convention which reads as follows:         "1.   Everyone has the right to freedom of peaceful assembly       and to freedom of association with others including the       right to form and to join trade unions for the protection       of his interests.         2.    No restrictions shall be placed on the exercise of       these rights other than such as are prescribed by law and       are necessary in a democratic society in the interests of       national security or public safety, for the prevention of       disorder or crime, for the protection of health or morals       or for the protection of the rights and freedoms of others.       This Article shall not prevent the imposition of lawful       restrictions on the exercise of these rights by members of       the armed forces, of the police or of the administration of       the State."         The Commission notes that the first question here is whether the refusal interfered with the applicant's freedom of association.         The applicant argues that the refusal made the effective exercise of his right to freedom of association impossible, because the association, not being a legal person, cannot appeal to the public for support to the associations's cause, i.e. to conduct discussion.         The Commission finds that although under national law recognition of an association's legal personality is dependent on its registration, an unregistered association can nevertheless be freely formed and engage in certain activities, just as it can possess funds through its members. It may be questioned, therefore, whether the fact that the association was unable to register prevented it from pursuing its objectives and thus at all constituted an interference with the applicant's right to freedom of association (cf., e.g. No. 18874/91, Dec. 12.1.94, D.R. 76, p. 44).         The Commission considers that this question need not be answered, since even assuming that there was an interference, it is justified under paragraph 2 of Article 11 (Art. 11-2) of the Convention, for the following reasons.         Restrictions on the exercise of the right guaranteed by this Article are permitted if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society. In this case the Commission notes that under Finnish law the Associations Act empowers the administrative authority to refuse registration in certain cases. This law was accessible, foreseeable in its effects and compatible with the pre-eminence of law.         With regard to the legitimacy of the interference the Commission considers that the aim pursued by the authorities was the protection of health and morals which is one of the legitimate aims set out in Article 11 para. 2 (Art. 11-2).         With regard to the necessity of the measure, the Commission recalls that this implies "a pressing social need" in which area States have a margin of appreciation (cf. Eur. Court HR, Handyside v. United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).         The aims of the association included influencing intoxicant policy and legislation with a view to making the use, availability and domestic cultivation of cannabis legal. According to the Supreme Administrative Court the association's aim to change the law could not as such be regarded as incompatible with public decency and morals. Nevertheless, the Court considered that the aim of the association was to encourage a habit detrimental to health and not yet common in Finland and that the use of cannabis was a criminal offence there. The Court also took account of a report of a Committee of the Parliament to the effect that society should show its disapproval of the use of drugs.         In these circumstances, the Court's conclusion that the aim of the association was in violation of public decency and morals within the meaning of the Associations Act cannot be regarded as unreasonable. Furthermore, the refusal of registration cannot be considered disproportionate to the aim pursued, since the applicant has not shown that it prevented any essential activity of the association. Therefore, the Commission considers that the refusal to register the association can be regarded as a necessary measure in a democratic society, having regard to the margin of appreciation States enjoy.         It follows that, in so far as there was an interference with the applicant's right to freedom of association, the interference was justified under Article 11 para 2 (Art. 11-2) of the Convention (cf. also No. 14223/88, Dec. 5.6.91, D.R. 70, p. 218).         This part of the application must therefore be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber