Lexploria

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

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LARMELA v. FINLAND

LARMELA v. FINLAND

LEXI