Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17116/90

S.

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 14 January 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 -4). . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 47). . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16 - 43) . . . . . . . . . . . . . . . . . . . . 3

a) Proceedings before the Zurich District Court

(paras. 18 - 23) . . . . . . . . . . . . . . . . . 3

b) Proceedings before the Zurich Court of Appeal

(paras. 24 - 27) . . . . . . . . . . . . . . . . . 4

c) Proceedings before the Zurich Court of Cassation

(para. 28) . . . . . . . . . . . . . . . . . . . . 5

d) Proceedings before the Zurich Court of Appeal

(para. 29) . . . . . . . . . . . . . . . . . . . . 5

e) Proceedings before the Zurich Court of Cassation

(paras. 30 - 33) . . . . . . . . . . . . . . . . . 5

f) Proceedings before the Federal Court

(paras. 34 - 39) . . . . . . . . . . . . . . . . . 7

g) Proceedings before the Zurich Court of Cassation

(paras. 40 - 41) . . . . . . . . . . . . . . . . . 8

h) Proceedings before the Federal Court

(paras. 42 - 43) . . . . . . . . . . . . . . . . . 8

B. Relevant domestic law and practice

(paras. 44 - 47) . . . . . . . . . . . . . . . . . . . . 9

a) Section 204 of the Swiss Penal Code

(paras. 44 - 46) . . . . . . . . . . . . . . . . . 9

b) Remedies to the Federal Court

(para. 47) . . . . . . . . . . . . . . . . . . . .10

III. OPINION OF THE COMMISSION

(paras. 48 - 99) . . . . . . . . . . . . . . . . . . . .11

A. Complaints declared admissible

(para. 48) . . . . . . . . . . . . . . . . . . . .11

B. Points at issue

(para. 49) . . . . . . . . . . . . . . . . . . . .11

C. Article 10 of the Convention

(paras. 50 - 67) . . . . . . . . . . . . . . . . .11

a) Interference with the applicant's right

(paras. 53 - 54) . . . . . . . . . . . . . .12

b) Legal basis for the interference

(para. 55) . . . . . . . . . . . . . . . . .12

c) Aim of the interference

(para. 56) . . . . . . . . . . . . . . . . .12

d) Necessity of the interference

(paras. 57 - 66) . . . . . . . . . . . . . .12

Conclusion

(para. 67) . . . . . . . . . . . . . . . . . . . .14

D. Article 8 of the Convention

(paras. 68 - 71) . . . . . . . . . . . . . . . . .14

Conclusion

(para. 71) . . . . . . . . . . . . . . . . . . . .14

E. Article 6 para. 1 of the Convention

(paras. 72 - 96) . . . . . . . . . . . . . . . . .15

a) Period to be considered

(paras. 74 - 79). . . . . . . . . . . . . . .15

b) Relevant criteria

(paras. 80 - 82). . . . . . . . . . . . . . .15

c) Complexity of the case

(paras. 83 - 84). . . . . . . . . . . . . . .16

d) Applicant's conduct

(paras. 85 - 88). . . . . . . . . . . . . . .16

e) Conduct of the authorities

(paras. 89 - 95). . . . . . . . . . . . . . .17

Conclusion

(para. 96) . . . . . . . . . . . . . . . . . . . .17

F. Recapitulation

(paras. 97 - 99) . . . . . . . . . . . . . . . . .17

DISSENTING OPINION OF Mr. E. BUSUTTIL, JOINED BY Mr. A. WEITZEL

AND Mrs. J. LIDDY AS REGARDS ARTICLE 10 OF THE CONVENTION . . . . .18

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . .20

APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . .21

APPENDIX III : CRIMINAL PROCEEDINGS CONCERNING THE PUBLISHING

OF OBSCENE MATERIAL . . . . . . . . . . . . .37

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, a Swiss citizen born in 1950, is a businessman

residing in Zurich. Before the Commission he is represented by

Mr. L.A. Minelli, a lawyer practising at Forch in Switzerland.

3. The application is directed against Switzerland. The Government

are represented by their Agent, Mr. O. Jacot-Guillarmod, Deputy

Director of the Federal Office of Justice, and their Deputy Agent,

Mr. Ph. Boillat, Head of the European Law and International Affairs

Section of the Federal Office of Justice.

4. The application concerns the applicant's complaints under

Article 6 para. 1 of the Convention of the length of the criminal

proceedings instituted against him; and that his conviction for showing

a film breached his right to respect for private life and to freedom

of expression within the meaning of Articles 8 and 10 of the

Convention, respectively.

B. The proceedings

5. The application was introduced on 6 August 1990 and registered

on 4 September 1990.

6. On 27 May 1991 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

7. The Government's observations were received by letter dated

7 September 1991 and the applicant's observations by letter dated

10 October 1991.

8. On 11 May 1992 the Commission declared the application admissible

insofar as it related to the applicant's complaints under

Article 6 para. 1 of the Convention about the length of the

proceedings, and his complaints under Articles 8 and 10 of the

Convention about his criminal conviction for showing a film. The

remaining complaints were declared inadmissible.

9. In additional observations of 10 July 1992 the Government

submitted that the applicant had not complied with the requirements of

Article 26 of the Convention, but the Commission found no basis for

applying Article 29 of the Convention.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M. P. PELLONPÄÄ

12. The text of this Report was adopted on 14 January 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant runs a sex shop in Zurich for homosexual persons.

He sells magazines, books, video films and other objects. Clients know

of the shop from advertisements in specialised magazines or from

meeting places for homosexuals. From the street the nature of the shop

is not discernible.

17. In a room at the back of the shop the applicant showed video

films to certain persons. The films were changed every one or two

weeks. Persons knew of these films by word of mouth. Thus, between

21 and 23 November 1983 the applicant showed the film "New York City",

lasting 120 minutes and consisting almost exclusively of sexual acts.

Entry to the film was open to any male person interested who paid an

entrance fee of 15 SFr or bought sex magazines for over 50 SFr and

showed a membership card. Altogether nine persons saw the film.

a) Proceedings before the Zurich District Court

18. On 23 November 1983, following a search of the premises, the

Zurich District Attorney's Office (Bezirksanwaltschaft) confiscated the

film "New York City", the video recorder, and film takings of 60 SFr.

Criminal proceedings were then instituted against the applicant. On

28 November 1983 the applicant was questioned by the police.

19. On 15 March 1984 the Zurich District Attorney's Office issued a

penal order (Strafbefehl) convicting the applicant of publishing

obscene material contrary to Section 204 of the Swiss Penal Code

(Strafgesetzbuch; see below, Relevant domestic law and practice). The

applicant was also convicted of driving under the influence of alcohol.

For both offences he was fined 6,000 SFr.

20. Upon the applicant's objection (Einspruch), proceedings were

instituted before the Zurich District Court (Bezirksgericht). On

27 June 1984 the Court convicted the applicant of driving under the

influence of alcohol and imposed a fine of 1,000 SFr. With regard to

the offence of publishing obscene material the Court acquitted the

applicant.

21. In its decision the District Court considered that the nature of

the shop was not discernible from the street. Persons wishing to see

the film had to disclose that they were homosexuals or show their

membership card. There was also a control in that unwanted persons had

no access. Thus the Court considered that only a small circle of

persons could see the film, namely those who knew of it and wanted to

see it.

22. The Court observed that a young plain clothes policeman had seen

the film after paying 15 SFr. The Court considered here the

applicant's submissions according to which he had thought the man to

be homosexual; he had left the film room very quickly. The fact that

the applicant still remembered this client's conduct led the Court to

conclude that the applicant had effective control over his clients.

23. Given the small circle of viewers it could not be said, in the

Court's view, that the obscene material had been made "public" within

the meaning of Section 204 of the Penal Code. The applicant had

undertaken all the necessary precautions to ensure that no viewers were

unintentionally confronted with the material.

b) Proceedings before the Zurich Court of Appeal

24. The Zurich Public Prosecutor's Office appealed against the

decision of the District Court to the Court of Appeal (Obergericht) of

the Canton of Zurich.

25. On 18 January 1985, after conducting a hearing, the Court of

Appeal convicted the applicant of publishing obscene material contrary

to Section 204 para. 1 of the Penal Code, and of driving under the

influence of alcohol, and imposed a fine of 4,000 SFr.

26. In its judgment the Court of Appeal considered that Section 204

envisages the protection of the public in a wider sense. The Court

noted the conditions of access to the backroom of the applicant's shop

and the fact that the membership card stated no particulars of the

bearer. It also noted the applicant's submissions that he himself

could tell whether or not a person was homosexual. The Court

continued:

[Translation]

"The qualification of publicity does not fall away merely by

applying a restriction to the group of viewers. Rather, the

latter must clearly be circumscribed and subject to control ...

The applicant's film projection occurred - contrary to the view

of the lower court - publicly as it was accessible, not to an

objectively limited number of a few persons, but an unlimited

number of persons, namely all homosexuals and bisexuals. Given

the above-mentioned circumstances, the circle of viewers was

therefore not sufficiently subject to control ... Moreover, the

accused could not determine merely on the basis of the appearance

of a person who, when a first-time client, could not be

personally known to him, whether he was a homosexual person ...

Thus, the applicant, without further ado, granted a plain clothes

policeman, who was investigating the sex shop, entry to the

obscene film at issue as he incorrectly took him to be a

homosexual."

[German]

"Das Merkmal der Öffentlichkeit entfällt nicht schon durch die

Anordnung irgendeiner Begrenzung des Zuschauerkreises, sondern

erst, wenn dieser eindeutig umschrieben und überprüfbar ist ...

Die fragliche Filmvorführung des Angeklagten erfolgte - entgegen

der Ansicht der Vorinstanz - öffentlich, weil sie nicht lediglich

einem objektiv begrenzten Kreis von wenigen Personen, sondern

einem unbeschränkten Personenkreis, nämlich allen Homo- und

Bisexuellen zugänglich war. Der Zuschauerkreis war aufgrund der

oben erwähnten Umstände insbesondere nicht genügend überprüfbar

... Zudem konnte der Angeklagte nicht lediglich aufgrund der

Erscheinung einer Person, die ihm zumindest als erstmaliger Kunde

persönlich nicht bekannt sein konnte, beurteilen, ob es sich um

einen Homosexuellen handle. So gewährte der Angeklagte ohne

weiteres auch einem jungen Polizeibeamten in zivil, der eine

Überprüfung des Sex-Shops vornahm, Zutritt zum fraglichen

unzüchtigen Film, weil er ihn fälschlicherweise für einen

Homosexuellen hielt."

27. In its decision the Court also dismissed the applicant's request

to hear the policeman as a witness, inter alia as it would be

impracticable to have to hear as a witness every official who had

participated during the investigations.

c) Proceedings before the Zurich Court of Cassation

28. Against this decision the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) with the Court of Cassation (Kassations-

gericht) of the Canton of Zurich. In its decision of 25 November 1985

the Court of Cassation upheld the plea of nullity and quashed the

previous decision on the ground that the Court of Appeal should have

heard the policeman as a witness (see above para. 27). Its decision

was served on the applicant on 27 December 1985.

d) Proceedings before the Zurich Court of Appeal

29. Proceedings were then resumed before the Court of Appeal of the

Canton of Zurich which on 28 August 1986 invited the parties to the

appeal hearing on 21 October 1986. On 29 October 1986 the Court of

Appeal convicted the applicant of the offence of publishing obscene

material and of driving under the influence of alcohol and imposed a

fine of 4,000 SFr. The decision was served on the applicant on

17 February 1987.

e) Proceedings before the Zurich Court of Cassation

30. On 2 March 1987 the applicant filed a plea of nullity against

this decision, complaining inter alia of a breach of Article 10 of the

Convention. He also complained of the length of the proceedings. The

applicant asked the Court of Cassation to adjourn the proceedings until

the European Court had decided on the case of Müller and others v.

Switzerland (Eur. Court H.R., judgment of 24 May 1988, Series A

no. 133), and the Federal Court had given its decision in another case

concerning the applicant. On 24 March 1987 the Public Prosecutor's

Office filed its observations.

31. On 2 May 1988 the Court of Cassation convicted the applicant of

driving under the influence of alcohol and imposed a fine of 800 SFr.

It acquitted him of the offence of publishing obscene material.

32. In its decision numbering 27 pages the Court dismissed the

applicant's request for adjourning the proceedings as it was unclear

when the European Court would give its judgment in the Müller Case.

33. The Court moreover found that it was not up to the Convention

States to define what fell under Article 10 of the Convention. Rather,

freedom of expression comprised the freedom of individual

communication, including the showing of pornographic films. The

decision continues:

[Translation]

"According to the facts underlying the contested conviction there

was no danger that persons without or even against their

intention would have been confronted with the incriminated film.

Admittedly the purchase or delivery of the membership card,

entitling the bearer to enter the projection room, did not

involve serious difficulties ... So it can indeed not be said

that it was a closed private group of persons. On the other

hand, there can be no doubt that the sex shop in question and,

a fortiori, the adjacent separate projection room could only be

visited by persons who came with the knowledge of what was

awaiting them and intending to see this kind of film ... If in

fact the only issue is whether adults, who in full knowledge of

its content want to see the film at issue, are indirectly to be

hindered by means of the criminal prosecution of the applicant,

no 'pressing social need' can be discerned for such a manner of

proceeding. If it were an urgent necessity to protect the

individual from his wish to see obscene publications, one would

consequently also have to punish the private showing of such

films, which however is not the case."

[German]

"Nach dem der angefochtenen Verurteilung zugrundeliegenden

Sachverhalt bestand keine Gefahr dafür, dass Personen ohne oder

gar gegen ihre Absicht mit dem inkriminierten Film konfrontiert

worden wären. Zwar ist davon auszugehen, dass der Erwerb bzw.

die Aushändigung des Kundenausweises, welcher den Inhaber zum

Betreten des Vorführraumes berechtigte, mit keinen grossen

Schwierigkeiten verbunden war ..., so dass in der Tat nicht von

einem geschlossenen, privaten Personenkreis gesprochen werden

kann. Auf der anderen Seite besteht aber kein Zweifel daran,

dass der fragliche Sex-Shop und somit erst recht der dazu

gehörende separate Vorführraum nur von Personen aufgesucht wurde,

die in Kenntnis des sie Erwartenden und mit der Absicht, diese

Art von Film zu besichtigen, kamen ... Wenn es faktisch also nur

darum gehen kann, erwachsene Personen, welche in Kenntnis des

Inhaltes den fraglichen Film sehen wollen, durch strafrechtliche

Verfolgung des Beschwerdeführers indirekt daran zu hindern, so

kann ein 'dringendes soziales Bedürfnis' für ein solches Vorgehen

nicht erkannt werden. Hält man es für dringend erforderlich, den

einzelnen vor seinem Wunsch zur Betrachtung unzüchtiger

Veröffentlichungen zu schützen, so müsste folgerichtigerweise

auch die völlig geschlossene, private Vorführung deartiger Filme

bestraft werden, was jedoch nicht der Fall ist."

f) Proceedings before the Federal Court

34. On 9 May 1988 the Zurich Public Prosecutor's Office filed a plea

of nullity against this decision with the Federal Court

(Bundesgericht). On 19 June 1988 the applicant filed his observations

thereupon.

35. On 20 September 1988 the Federal Court upheld the plea of

nullity, quashed the decision of the Court of Cassation, and sent the

case back to that court for a new judgment. The decision was served

on the applicant on 14 November 1988.

36. In its decision, the Federal Court stated with reference to

Article 10 of the Convention and the case-law of the European Court of

Human Rights:

[Translation]

"There is no reason why the morals of adult persons (among whom

there are also persons who are unstable and easily influenced)

and thus the morals of society as a whole should not also be

protected. In any event, this opinion lies within the margin of

appreciation which the European Court has granted to the

Convention States. It duly considers the different points of

view which can prevail in a democratic society with regard to the

necessity of protecting morals."

[German]

"Es ist nicht einzusehen, wieso nicht auch die Moral erwachsener

Personen (unter denen sich ebenfalls labile und leicht

beeinflussbare Menschen befinden) und damit die

gesamtgesellschaftliche Moral schützenswert sein sollten.

Jedenfalls liegt diese Ansicht im Rahmen des vom Europäischen

Gerichtshof den Vertragsstaaten eingeräumten Ermessens, welches

den verschiedenen Standpunkten Rechnung trägt, die in einer

demokratischen Gesellschaft hinsichtlich der Erfordernisse des

Schutzes der Moral vorherrschen können."

37. The Federal Court then considered the Court's judgment in the

Müller case (see Eur. Court H.R., loc. cit.). It continued:

[Translation]

"The difference from the case to be decided today is that in the

present case no adults were confronted against their will, and

no young persons were confronted with the incriminated film 'New

York City'. But also in such cases punishment is legitimate.

As explained above, Section 204 of the Penal Code concerns the

protection of public decency and morals. No obscene objects

should be propagated and publicly displayed. To achieve this aim

a prohibitory norm was enacted and endowed with penal sanctions.

Such a penal norm is necessary as the protection aimed at could

not (at least not with the same efficiency) be achieved in a

different manner."

[German]

"Der Unterschied zum heute zu beurteilenden Fall besteht darin,

dass in casu keine Erwachsenen gegen ihren Willen und keine

Jugendlichen mit dem inkriminierten Film 'New York City'

konfrontiert wurden. Aber auch in Fällen dieser Art ist eine

Bestrafung zulässig. Wie oben dargelegt, geht es beim Art. 204

StGB um den Schutz der öffentlichen Sittlichkeit und Moral. Es

soll verhindert werden, dass unzüchtige Gegenstände verbreitet

und öffentlich zur Schau gestellt werden können. Um dieses Ziel

zu erreichen, wurde eine Verbotsnorm aufgestellt und diese mit

strafrechtlichen Sanktionen ausgestattet. Eine solche Strafnorm

ist notwendig, weil der angestrebte Schutz auf andere Weise gar

nicht (oder jedenfalls nicht in gleich wirksamer Weise) erreicht

werden könnte."

38. Finally, the Federal Court regarded it as an abuse of rights

(rechtsmissbräuchlich) for the applicant to invoke the right to freedom

of expression although he was clearly only interested in substantial

financial profits from sex business.

39. The Court thus found that it violated Federal law if Section 204

of the Penal Code was not applied on the grounds that it did not comply

with Article 10 of the Convention.

g) Proceedings before the Zurich Court of Cassation

40. Proceedings were resumed before the Zurich Court of Cassation.

On 3 April 1989 the Zurich Court of Cassation convicted the applicant

of publishing obscene material. In addition to the fine imposed on the

applicant on 2 May 1988 he was fined 2,500 SFr. The decision was

served on 13 April 1989.

41. In its decision, the Court of Cassation stated that it was

unnecessary to adjourn the proceedings. It further noted that the

Federal Court had not expressed itself on the issue whether the

applicant's acquittal was still possible on the basis of an

interpretation of Section 204 of the Penal Code which complied with

Federal law. However, the Court of Cassation considered that

undoubtedly (unzweifelhaft) the Federal Court had referred the case

back to the Court of Cassation in order to convict the applicant (zur

Verurteilung des Beschwerdeführers) according to Section 204.

h) Proceedings before the Federal Court

42. The applicant then filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court in which he complained under

Article 6 of the Convention of a breach of equality of arms. He also

complained of a violation of Articles 8 and 10 of the Convention. On

31 January 1990 the Federal Court dismissed the appeal. The decision

was served on the applicant on 16 February 1990.

43. The Court noted that the applicant had correctly not complained

that Section 204 of the Penal Code contradicted the Convention (see

below, Relevant domestic law and practice). To the extent that he

complained of an indirect violation of Articles 8 and 10 of the

Convention the Court declared the public law appeal inadmissible as the

appropriate remedy would be the plea of nullity to the Federal Court.

In this respect, the Federal Court noted that it had already previously

decided on the compatibility in the instant case of the applicant's

conviction with Article 10 of the Convention.

B. Relevant domestic law and practice

a) Section 204 of the Swiss Penal Code

44. Section 204 of the Swiss Penal Code provides:

[Translation]

"1. Anyone who makes or has in his possession any writings,

pictures, films or other items which are obscene, with a view to

trading in them, distributing them or displaying them in public,

or who, for the above purposes, imports, transports or exports

such items or puts them into circulation in any way, or who

openly or secretly deals in them or publicly distributes or

displays them or by way of trade supplies them for hire, or who

announces or makes known in any way, with a view to 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."

[German]

"1. Wer unzüchtige Schriften, Bilder, Filme oder andere

unzüchtige Gegenstände herstellt oder vorrätig hält, um damit

Handel zu treiben, sie zu verbreiten oder öffentlich

auszustellen, wer solche Gegenstände zu den genannten Zwecken

einführt, befördert oder ausführt oder sonstwie in Verkehr

bringt, wer solche Gegenstände öffentlich oder geheim verkauft,

verbreitet, öffentlich ausstellt oder gewerbsmässig ausleiht,

wer, um die verbotene Verbreitung oder den verbotenen Vertrieb

zu fördern, ankündigt oder sonstwie bekannt gibt, dass sich eine

Person mit den genannten strafbaren Handlungen befasst, wer

ankündigt oder bekannt gibt, wie und durch wen die genannten

Gegenstände unmittelbar oder mittelbar bezogen werden können,

wird mit Gefängnis oder mit Busse bestraft.

2. Wer solche Gegenstände einer Person unter 18 Jahren übergibt

oder vorzeigt, wird mit Gefängnis oder mit Busse bestraft.

3. Der Richter lässt die unzüchtigen Gegenstände vernichten."

45. The Federal Court has interpreted the notion "public" as

requiring that an indeterminate group of persons, not subject to

control (unbestimmter, unkontrollierter Personenkreis), has access to

the obscene material. The agreement of the persons concerned is

irrelevant (see Arrêts du Tribunal Fédéral suisse [ATF] 100 IV 237,

96 IV 68, 87 IV 84). In ATF 116 IV 276ff, the Federal Court considered

that cinema projections of so-called "soft pornography" no longer

contravened Section 204 of the Penal Code, "if it is ensured that the

cinema visitor knows in advance about the character of the film, and

access is prohibited to persons below 18 years of age" ("wenn

gewährleistet ist, dass der Kinobesucher im voraus über den Charakter

des Films aufgeklärt wird und noch nicht 18jährigen Personen der

Zutritt untersagt ist", loc. cit. p. 281).

46. The Swiss Penal Code has meanwhile been revised. Section 197

para. 1 now states that whoever displays inter alia pornographic films

to persons under 16 years of age will be punished with imprisonment or

a fine. Section 197 para. 2 imposes a fine on persons who display such

films in public; no punishment is imposed if the film is displayed in

a closed room and an indication is given in advance to the visitors as

to the pornographic character of the film. According to Section 197

para. 3, whoever displays films showing sexual acts with children,

animals, human excrements, or violence, will be punished with a fine

or imprisonment.

b) Remedies to the Federal Court

47. According to Section 113 para. 3 of the Federal Constitution

(Bundesverfassung) the Federal Court cannot examine whether a Federal

Act (Bundesgesetz), such as the Penal Code, complies as such with the

Constitution or the Convention. Complaints about violations by

cantonal authorities of the Constitution or the Convention must in the

last resort be filed with the Federal Court by means of a public law

appeal (Section 84 of the Federal Judiciary Act, Organisationsgesetz).

The incorrect application of a Federal Act must be raised in a plea of

nullity (Section 268 of the Federal Act on Criminal Procedure,

Bundesstrafprozessordnung). Where it is complained that a judge, by

incorrectly interpreting a Federal Act, has breached the Convention,

this complaint is considered as one of an indirect violation of the

Convention (mittelbare Konventionsverletzung) which must be raised in

a plea of nullity (see ATF 116 I a 74 f, 112 IV 133).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

48. The Commission has declared admissible the applicant's complaints

under Articles 8 and 10 (Art. 8, 10) of the Convention about his

criminal conviction for showing a film and his complaints under

Article 6 para. 1 (Art. 6-1) of the Convention about the length of the

proceedings.

B. Points at issue

49. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 10 (Art. 10) of the

Convention;

- whether there has been a violation of Article 8 (Art. 8) of the

Convention;

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

C. Article 10 (Art. 10) of the Convention

50. The applicant complains that his conviction for showing the film

"New York City" breached his right to freedom of expression within the

meaning of Article 10 (Art. 10) of the Convention. He submits that

Section 204 of the Penal Code is not sufficiently precise to serve as

a legal basis for such a conviction. The conviction was unnecessary,

given the fact that only persons who intended to see the film could do

so and young persons were not allowed in. The applicant also refers

to the recent case ATF 116 IV 276 of the Federal Court (see above

para. 45).

51. Article 10 (Art. 10) of the Convention states:

"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 formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

52. The Government submit that the recent case ATF 116 IV 276 of the

Federal Court did not concern homosexual obscene material as in the

present case. They furthermore refer to a decision by the Commission

(No. 16564/90 Dec. 8.4.91, to be published in D.R.), finding that a

conviction for renting or selling obscene video films would correspond

to a pressing social need and be proportionate to the legitimate aim

pursued under Article 10 (Art. 10).

a) Interference with the applicant's right

53. It is undisputed between the parties, and the Commission accepts,

that the right to freedom of expression, as enshrined in Article 10

(Art. 10) of the Convention, comprised the showing of the film at

issue.

54. The applicant's conviction for showing the film constituted an

interference by a public authority with the exercise of his rights

under Article 10 para. 1 (Art. 10-1). The Commission's next task is

therefore to examine whether this interference was justified under

Article 10 para. 2 (Art. 10-2).

b) Legal basis for the interference

55. The Commission finds that Section 204 of the Swiss Penal Code was

sufficiently precise to enable the applicant to foresee the

consequences which the showing of the film would entail. The

interference at issue was therefore "prescribed by law" within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

c) Aim of the interference

56. The measure furthermore aimed at the "protection of ... morals"

within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

d) Necessity of the interference

57. Finally, the Commission must examine whether the interference was

"necessary in a democratic society" within the meaning of Article 10

para. 2 (Art. 10-2) of the Convention. The term implies that the

interference must comply with a "pressing social need". In determining

whether an interference is "necessary in a democratic society" the

Convention organs must also take into account that a margin of

appreciation is left to the Contracting States (see Eur. Court H.R.,

Barthold judgment of 25 March 1985, Series A no. 90, pp. 24 et seq.,

para. 55; Markt Intern Verlag GmbH and Klaus Beermann judgment of

20 November 1989, Series A no. 165, pp. 19 et seq., para. 33).

58. The Commission further recalls that it is not possible to find

a uniform conception of morals. The latter may vary from time to time

and from place to place. In principle, State authorities are in a

better position to give an opinion on the exact content of the

requirements of morals as well as on the "necessity" of a "restriction"

or "penalty" intended to meet them (see Eur. Court H.R., Handyside

judgment of 7 December 1976, Series A no. 24, p. 22, para. 48; Open

Door and Dublin Well Woman judgment of 29 October 1992, Series A

no. 246, para. 68).

59. In this context, it is of particular relevance whether or not the

obscene material at issue was displayed to the general public. Thus,

in the case of Müller and Others v. Switzerland, in which the Court

found no violation of Article 10 (Art. 10) of the Convention, emphasis

was placed on the fact that "the paintings were displayed in an

exhibition which was unrestrictedly open to - and sought to attract -

the public at large" (see Eur. Court H.R., Series A no. 133, p. 22,

para. 36).

60. The Commission has in a previous case considered a complaint

under Article 10 (Art. 10) of the Convention relating to a conviction

for selling obscene video films. That case concerned a chain of video

shops which were open to the general public. The Commission found that

a "conviction for renting or selling the video films ... would

correspond to a pressing social need and would be proportionate to the

legitimate aim pursued within the meaning of the Convention organs'

case-law" (see No. 16564/90, X. and Y. v. Switzerland, Dec. 8.4.91 to

be published in D.R.).

61. In the present case the Commission notes that the film was open

to any adult willing to see it. Details as to the film programme were

passed on by word of mouth among the interested persons. In fact, the

showing of the film was part of the applicant's business activities.

At the time concerned the applicant regularly showed films at the back

of his shop, changing them every one or two weeks. An entrance fee for

the films was charged. By placing advertisements for his shop in

specialised magazines, the applicant attempted to attract customers.

62. The Commission notes that the nature of the applicant's shop was

not discernible from the street. Moreover, it was very unlikely that

the projection room adjacent to the shop would be visited by persons

who were unaware of the subject matter of the film. There was no

danger of adults being confronted with the film against or without

their intention to see it. It is furthermore undisputed that minors

had no access to the film, as there was a control in the shop ensuring

that such persons had no access.

63. The Commission notes in this respect the decision of the Zurich

District Court of 27 June 1984, acquitting the applicant, according to

which it could not be said that the obscene material had been made

"public" within the meaning of Section 204 of the Penal Code (see above

paras. 21 et seq.). The decision of the Zurich Court of Cassation on

2 May 1988, also acquitting the applicant, concluded that nobody would

be confronted with the obscene material against his will (see above,

para. 33).

64. It is true that it is primarily for the domestic authorities to

undertake an assessment as to the protection of the morals of adult

persons, since morals vary and the domestic authorities are better

qualified for such an assessment. The Commission here notes in

particular the Federal Court's decision of 20 September 1988 (see

above, para. 36).

65. In the Commission's opinion, the present case does not concern

the protection of morals of adult persons in Swiss society in general,

since no adult was confronted unintentionally or against his will with

the film. Where this is so, there must be particularly compelling

reasons justifying the interference at issue. In the present case, no

such reasons have been provided by the Government.

66. In these circumstances, the applicant's conviction did not

correspond to a "pressing social need". It follows that the

interference was disproportionate to the aim pursued and could not be

considered "necessary in a democratic society" within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.

Conclusion

67. The Commission concludes, by 12 votes to 5, that there has been

a violation of Article 10 (Art. 10) of the Convention.

D. Article 8 (Art. 8) of the Convention

68. The applicant complains under Article 8 (Art. 8) of the

Convention that, as the nature of the shop was not discernible from the

street, the prohibition to show the film on his own premises breached

his right to respect for private life.

69. Article 8 (Art. 8) of the Convention states:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, 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."

70. The Commission has already examined the applicant's complaints

about the prohibition to show the film at issue under Article 10

(Art. 10) of the Convention. It finds it unnecessary also to examine

the complaint under Article 8 (Art. 8) of the Convention.

Conclusion

71. The Commission concludes, by a unanimous vote, that it is not

necessary to examine the complaint under Article 8 (Art. 8) of the

Convention.

E. Article 6 para. 1 (Art. 6-1) of the Convention

72. The applicant further complains that the criminal proceedings

against him were not conducted within a reasonable time. He relies on

Article 6 para. 1 (Art. 6-1) of the Convention which includes the

following provision:

"In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal ..."

73. The Government consider that the proceedings did not attain an

unreasonable length.

a) Period to be considered

74. The applicant submits that the period to be considered under

Article 6 para. 1 (Art. 6-1) of the Convention commenced on

23 November 1983 with the search of his premises and ended on

16 February 1990 when the judgment of the Federal Court was served.

75. The Government agree that the relevant period commenced on

23 November 1983 but contend that it ended on 13 April 1989 when the

judgment of the Zurich Court of Cassation was served on the applicant.

76. The Commission considers that the period to be examined under

Article 6 para. 1 (Art. 6-1) of the Convention commenced on

23 November 1983, the date when the applicant's premises were searched.

77. As regards the end of this period, the Commission notes that on

3 April 1989 the Zurich Court of Cassation convicted the applicant of

publishing obscene material. Against this decision the applicant filed

a public law appeal with the Federal Court, complaining inter alia

under Article 6 (Art. 6) of the Convention of a breach of equality of

arms in the previous proceedings. On 31 January 1990 the Federal Court

dealt in substance with this complaint and dismissed it.

78. Nevertheless, the Federal Court could have upheld the applicant's

public law appeal and quashed the conviction pronounced by the Zurich

Court of Cassation. The period to be examined under Article 6 para. 1

(Art. 6-1) of the Convention thus ended on 16 February 1990, when the

applicant received the judgment of the Federal Court of

31 January 1990.

79. Accordingly, the period to be examined under Article 6 para. 1

(Art. 6-1) of the Convention, commencing on 23 November 1983 and ending

on 16 February 1990, lasted 6 years, 2 months and 24 days.

b) Relevant criteria

80. The Commission recalls that the reasonableness of the length of

criminal proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the applicant and the

conduct of the authorities dealing with the case (see Eur. Court H.R.,

Vernillo judgment of 20 February 1991, Series A no. 198, p. 12,

para. 29).

81. In the applicant's view, the case involved no complex issues and

he did not contribute to the length.

82. The Government submit that the case was complex; that parts of

the proceedings had to be repeated; and that the applicant requested

an adjournment.

c) Complexity of the case

83. The Commission observes that the applicant was convicted of the

offence of publishing obscene material and of driving under the

influence of alcohol. With regard to the former offence, the Swiss

courts had to interpret Section 204 of the Swiss Penal Code as to

whether or not the applicant's activities had occurred publicly.

84. The Commission considers that this issue was not in itself so

complex as to justify the length of the proceedings under Article 6

para. 1 (Art. 6-1).

d) Applicant's conduct

85. As regards the applicant's conduct, the Commission recalls that

Article 6 (Art. 6) of the Convention does not require a defendant in

criminal proceedings actively to cooperate with the judicial

authorities. Neither can any reproach be levelled against him for

having made full use of the remedies available under domestic law.

Nevertheless, such conduct constitutes an objective fact, not capable

of being attributed to the respondent Government, which is to be taken

into account when determining whether or not the proceedings lasted

longer than the reasonable time referred to in Article 6 para. 1

(Art. 6-1) (see Eur. Court H.R., Eckle judgment of 15 July 1982,

Series A no. 51, p. 36, para. 82).

86. In the present case, the appeals filed by the applicant

contributed to some extent to the length of the proceedings.

87. Moreover, in his plea of nullity of 2 March 1987 the applicant

requested the Zurich Court of Cassation not to proceed in his case

pending the outcome of other proceedings (see above para. 30).

88. Thus, the impression given by the applicant, at least during part

of the proceedings, was that it was of no relevance to him whether or

not the proceedings were concluded within a reasonable time within the

meaning of Article 6 para. 1 (Art. 6-1).

e) Conduct of the authorities

89. The Commission has next examined the conduct of the Swiss

authorities.

90. The Commission has found no substantial periods of inactivity

until 1986: after the applicant's premises had been searched on

23 November 1983, the District Attorney's Office issued a penal order

on 15 March 1984, the District Court decided on 27 June 1984, the Court

of Appeal on 18 January 1985, the Court of Cassation on

25 November 1985, and the Court of Appeal on 29 October 1986.

91. There are also no substantial periods of inactivity between 1988

and 1990: after the Court of Cassation had given its decision on

2 May 1988, the Federal Court decided on 20 September 1988, the Court

of Cassation on 3 April 1989, and the Federal Court again on

31 January 1990.

92. Thus, between 1983 and 1986, and between 1988 and 1990 the Swiss

authorities conducted the proceedings without undue delay.

93. There remains a comparatively lengthy period of approximately 18

months between the decision of the Court of Appeal of 29 October 1986,

and the decision of the Court of Cassation on 2 May 1988, which

acquitted the applicant.

94. During this period the decision of the Court of Appeal was served

on 17 February 1987, the applicant filed a plea of nullity on

2 March 1987 and the Court of Cassation acquitted him on 2 May 1988.

The time between March 1987 and May 1988 can in part be explained by

the preparation of the comparatively lengthy decision numbering 27

pages which acquitted the applicant.

95. Although these delays could probably have been avoided, they are

not sufficiently serious to warrant the conclusion that the total

duration of the proceedings exceeded the "reasonable time" referred to

in Article 6 para. 1 (Art. 6-1) of the Convention.

Conclusion

96. The Commission concludes, by 15 votes to 2, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

F. Recapitulation

97. The Commission concludes, by 12 votes to 5, that there has been

a violation of Article 10 (Art. 10) of the Convention (para. 67).

98. The Commission concludes, by a unanimous vote, that it is not

necessary to examine the complaint under Article 8 (Art. 8) of the

Convention (para. 71).

99. The Commission concludes, by 15 votes to 2, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention

(para. 96).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

DISSENTING OPINION OF MR. E. BUSUTTIL,

JOINED BY MR. A. WEITZEL AND MRS. J. LIDDY

AS REGARDS ARTICLE 10 OF THE CONVENTION

I am unable to share the opinion of the majority both in regard

to Article 10 and in regard to Article 6 para. 1 of the Convention.

Article 10

It is of course true that the right to freedom of expression is

here stated in extremely broad terms, purporting as it does to include

the freedom "to receive and impart information and ideas", thereby

making it virtually impossible to argue against the applicability of

the Article in a particular case. Nevertheless, one may be left to

wonder in the particular circumstances of this case if a pornographic

video film depicting homosexual acts for some one hundred and twenty

minutes to the accompaniment of protracted moaning is indeed what the

founding fathers of the Convention understood by freedom of expression.

Assuming, nevertheless, that we are here confronted with an

interference with the freedom of the applicant to "impart information

and ideas", it is unquestionably in line with the established case-law

of the Convention organs that the national authorities have a certain

margin of appreciation in assessing whether the interference with

freedom of expression corresponded to a pressing social need and, in

particular, whether the restriction complained of was proportionate to

the legitimate aim pursued. Where the aim pursued is the protection

of morals, the margin of appreciation enjoyed by the national

authorities is a wide one, as the Court acknowledged in its most recent

judgment on the subject (See Eur. Court H.R. Open Door and Dublin Well

Woman v. Ireland, 29 October 1992, Series A no. 246, § 68), since there

is no uniform European conception of morals and the requirements of

morals vary from time to time and from place to place. By reason of

their direct and continuous contact with the vital forces of their

countries, state authorities are in principle better placed than

international organs to pronounce on the exact content of these

requirements as well as on the necessity of a restriction or penalty

intended to meet them (see Eur. Court H.R., Müller et al. v.

Switzerland, 24 May 1988, Series A, no. 133, p. 22, § 35).

The Commission itself, as recently as 8 April 1991, was of the

opinion in a case relating to a conviction for selling or renting

obscene video films that "there can be no doubt that under normal

circumstances the applicant's conviction for renting or selling the

video films at issue would correspond to a pressing social need and

would be proportionate to the legitimate aim pursued" (No. 16564/90,

X. and Y. v. Switzerland, Dec. 8.4.91, as yet unpublished). The case

was against the same respondent State, the video shops were situated

in the same canton of Zurich, and the offenders were prosecuted under

the same section (Section 204) of the Swiss Penal Code. In the present

case, however, the Commission has come to the conclusion that there was

no pressing social need to interfere with the applicant's freedom of

expression in that the video film in question was not open to viewing

by the general public as in the earlier case.

For myself, I find this distinction difficult to draw for a

number of reasons. For one thing, the film in question here was open

to any adult male person willing to pay to see it. Secondly, the

applicant attempted to attract clients by placing adverts in

specialised magazines. Finally, the projection of the film was part

and parcel of the applicant's business activities for which an entrance

fee of 15 SFr was charged, a fee no higher than the normal entrance fee

charged in cinemas.

Accordingly, it seems to me that, if the conviction in the

earlier case introduced on 24 February 1990 and decided on 8 April 1991

corresponded to a pressing social need, the social need was necessarily

the same in the present case introduced on 6 August 1990, only five

months later than the earlier case but decided as late as

14 January 1993.

In the result, I am of the opinion that there has been no

violation of Article 10 in the present case.

Article 6 para. 1

In regard to Article 6 para. 1, on the other hand, I find it

extraordinary that criminal proceedings relating to the offences of

publishing obscene material and of drunken driving, involving simple

legal issues, should have taken six and a quarter year to conclude in

any Convention State, least of all in a Convention State where

everything else runs on time.

The Convention organs have constantly held that it is the duty

of Contracting States so to organise their legal systems as to avoid

undue length in court proceedings, particularly criminal proceedings.

To me, the attempt by the majority to justify such length by arguing

that the applicant himself had on 2 March 1987 requested the Court of

Cassation to adjourn the proceedings until the European Court had

decided on the case of Müller et al. v. Switzerland is not very

convincing, since a period of three years and three months (not in

itself a short period in criminal proceedings) had already gone by

before the applicant requested the adjournment and the request was

accompanied by the complaint as to the length of proceedings.

Accordingly, I consider that there has been a violation of

Article 6 para. 1 of the Convention.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

6 August 1990 Introduction of the application

4 September 1990 Registration of the application

Examination of Admissibility

27 May 1991 Commission's decision to invite the

Government to submit observations

on the admissibility and merits of

the application

7 September 1991 Government's observations

10 October 1991 Applicant's observations in reply

11 May 1992 Commission's decision to declare

the application admissible

Examination of the merits

10 July 1992 ) Commission's consideration of the

17 October 1992 ) state of proceedings

7 January 1993 Commission's deliberations on the

merits and final vote

14 January 1993 Adoption of the Report

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S. v. SWITZERLAND

S. v. SWITZERLAND

LEXI