Date when decision was rendered: 3.10.2017

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 113/1/16; 4863

Reference to source

KHO 2017:151.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

freedom of expression, freedom of the arts and sciences,
yttrandefrihet, frihet för konsten och vetenskapen,
ilmaisuvapaus, taiteen ja tutkimuksen vapaus,

Relevant legal provisions

sections 1, 2-1, 14-1, 15, 20 and 22-1 of the Assembly Act; chapter 17 section 21 of the Penal Code; sections 12-1 and 16-3 of the Constitution Act

= lag om sammankomster 1 §, 2 § 1 mom., 14 § 1 mom., 15 §, 20 § och 22 § 1 mom.; strafflagen 17 kapitel 21 §; grundlagen 12 § 1 mom. och 16 § 3 mom.

= kokoontumislaki 1 §, 2 § 1 mom., 14 § 1 mom., 15 §, 20 § ja 22 § 1 mom.; rikoslaki 17 luku 21 §; perustuslaki 12 § 1 mom. ja 16 § 3 mom.

ECHR-10: CCPR-19-2; CCPR-19-3

Abstract

During a contemporary theatre festival there was a series of installations or scenes displayed in a glass booth in the middle of a town square.The final event in this series consisted of an elderly lady sitting in the glass booth naked and wearing a wig and a mask of a younger woman.The police decided that if the lady is displayed naked, the event is to be banned, because it would constitute public obscenity which is a criminal offence under the Penal Code.The scene was then displayed, with the lady wearing underwear.The theatre company involved in the festival arrangements appealed to the administrative court and claimed that the police decision constituted preventive censorship and violated the freedom of expression and the freedom of the arts.When the administrative court did not change the police decision, the theatre company appealed further to the Supreme Admininstrative Court.

The Supreme Administrative Court noted that freedom of expression is not an absolute right.However, possible limiations of freedom of expression must meet with certain criteria.According to section 15 of the Assemby Act, the arrangement of a public event can be prohibited only if other measures are not enough.The section also provides an exhaustive list of grounds on which the arrangement of a public event can be prohibited, including when it is evident that the event is illegal or threatens public order or security.The court continued that possible restrictions on freedom of expression and freedom of the arts shall also be necessary for the realisation of an important social interest.In this case, the police had found it evident that the scene displayed would have amounted to public obscenity which is a criminal offence.According to the Constitution Act, freedom of expression is exercised without prior prevention by anyone.In the exercise of freedom of expression, important social interests are protected by giving the police the right to interrupt a public event in specified cases or by imposing penal sanctions.The punishability of an act is primarily assessed afterwards by a competent first-instance court.The police or an administrative court handling an appeal against the police decision have not authority to assess the punishability of an act in advance and in a binding manner.

The Supreme Administrative Court held that the glass booth and the accompanying text were clearly recognizable as a work of art.Although provocative and likely to cause disapproval, it was not evident that the scene displayed would fit the definition of public obscenity in the Penal Code.The police decision had, as such, been taken for a justified purpose, namely, the prevention of disorder, the protection of morals, or the protection of the rights of others.However, the court was not convinced that the possible impact of the scene displayed on the viewers and their feelings would have been exceptionally offensive or that the police action was necessary for the realisation of an important social interest.Moreover, section 22 of the Assembly Act grants the police the right to interrupt a clearly illegal public event.This is a lesser restriction on freedom of expression and freedom of the arts as compared to prohibiting a public event in advance.The Supreme Administrative Court concluded that in this case, prohibiting the display in advance was not necessary in a democratic society for a justified purpose.The police had no right to prevent the scene from being displayed in its intended form.

In its delibarations the court also referred to the case law of the European Court of Human Rights, including the cases of Müller et al. v Switzerland (judgment of 24 May 1988); Casado Coca v Spain (judgment of 24 Febuary 1994); Alinak v Turkey (judgment of 29 March 2005); Lindon, Otchakovsky-Laurens and July v France (judgment of 22 October 2007); Otto-Preminger-Institut v Austria (judgment of 20 September 1994); Karttunen v Finland (decision of 10 May 2011); and Grigoriades v Greece (judgment of 25 November 1997).

13.4.2018 / 13.4.2018 / RHANSKI