Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25472/94

by Iris HEIKKILÄ, Marjut OJALA, Marja HAKALIN

and Aki HYÖDYNMAA

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 28 September 1994

by Iris HEIKKILÄ, Marjut OJALA, Marja HAKALIN and Aki HYÖDYNMAA against

Finland and registered on 24 October 1994 under file No. 25472/94;

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 applicants are Finnish citizens. They are students, born in

1963, 1971, 1972 and 1966 respectively. The first applicant resides in

Vesanka and the other applicants reside in Jyväskylä. Before the

Commission they are represented by Mr. Juhani Kortteinen, a lawyer

practising in Helsinki.

The facts of the case, as far as they can be established on the

basis of the submissions of the applicants and the documents available,

may be summarised as follows.

On 26 August 1992 the applicants participated in a demonstration

against a motor race (rally) that was to be arranged in Jyväskylä and

its surroundings (Jyväskylän suurajot). The demonstration started at

18.30 hours in the vicinity of the town hall of Jyväskylä. On the same

day there was a reception in honour of the race at the town hall,

beginning at 20.00 hours. The occasion was to last until 21.00 hours.

At or about 20.45, some of the demonstrators, including the

applicants, started to walk towards the town hall. At that time there

were already buses waiting for the guests participating in the motor

race reception. In front of the town hall there were two police

officers who were to keep the demonstration under control and to ensure

the security of the reception. The police officers requested the

applicants to use the other side of the street. The applicants did not

comply with this request. Subsequently, the police officers ordered the

applicants to leave the immediate vicinity of the town hall. The

applicants, however, refused to comply. The applicants were accordingly

taken to the police station, where a preliminary investigation was

conducted and the applicants were charged with having acted in a

refractory manner towards the police (niskoittelu poliisia vastaan,

tredska mot polis) and, as far as the first applicant was concerned,

also with obstructing an official in the execution of his duties

(haitanteko virantoimituksessa olevalle virkamiehelle, brott som består

i att någon gör tjänsteman hinder i utövningen av tjänsten). Police

penal orders (rangaistusmääräysvaatimus, straffanspåk) were immediately

issued against the applicants covering the charges made, following

which the applicants could leave the police station.

As the applicants decided not to accept the police penal orders,

the matter was submitted to the determination of the courts.

The case was heard by the City Court (raastuvanoikeus, råd-

stuvurätten) of Jyväskylä. The City Court heard evidence from three

witnesses called by the applicants and two witnesses called by the

prosecution. The applicants maintained that the duty to comply with

police orders related only to such orders as it was within the

competence of the police to give. The applicants maintained that the

police had not had the competence to order them to leave the relevant

place. Therefore, they had not been obliged to comply with the order

and, consequently, they had not acted in a refractory manner towards

the police.

On 28 January 1993 the City Court found the applicants guilty on

the charges brought against them and sentenced the first applicant to

16 day-fines totalling FIM 320 and the other applicants respectively

to 10 day-fines totalling FIM 200. The City Court found that, taking

into account the assignment entrusted to the police, the temporal

connection between the events (the motor race reception and the

demonstration against the race) and the lack of clarity as to whether

the demonstration was over, the police had not exceeded its competence

when the officers requested the applicants to use the other side of the

street and ordered them to leave the immediate vicinity of the town

hall after they refused to comply. The City Court found, furthermore,

that the police had not interfered with the applicants' rights more

than had been necessary in order to fulfil their duty. The City Court

concluded that the applicants had, contrary to sections 13 and 30 of

the Police Act, intentionally disregarded an order that the police had

given within their competence in relation to the maintenance of public

order and safety. Under section 13 of the Police Act, everyone shall

follow the orders that the police give in a particular situation within

its competence.

The applicants appealed to the Court of Appeal (hovioikeus,

hovrätten) of Vaasa.

On 15 October 1993 the Court of Appeal upheld the City Court's

judgment as regards the charge of acting in a refractory manner towards

the police. The Court of Appeal accepted the City Court's reasoning and

stated further that only if the order given by the police had been

clearly erroneous or unjustified would the applicants have had the

right to disregard it. However, it found that the order had been

justified in the light of the need to maintain public order and safety

and that the police had acted within their competence in giving the

order. The Court of Appeal quashed the City Court's judgment as regards

the second count against the first applicant. Thus the applicants were

sentenced respectively to 10 day-fines totalling FIM 200.

On 29 March 1994 the Supreme Court (korkein oikeus, högsta

domstolen) refused the applicants leave to appeal.

COMPLAINTS

1. The applicants complain, under Article 5 of the Convention, that

their taking to the police station violated their right to liberty

since they had not committed any wrongful act nor had they endangered

public order or safety.

2. The applicants maintain that the police did not have any legal

grounds for preventing them from walking on the relevant pavement.

Furthermore, they maintain that the police acted contrary to the

principle of proportionality and that the police order was not

necessary in a democratic society. The applicants complain that their

right to liberty of movement was violated within the meaning of Article

2 of Protocol No. 4 to the Convention.

3. The applicants also complain that their right to liberty of

movement was restricted as a result of their opinions in a manner which

violated their right to freedom of expression. In this respect they

invoke Article 10 of the Convention.

4. The applicants maintain, furthermore, that the police did not

prevent everybody from walking on the relevant pavement. In the light

of this, they complain that they were discriminated against. They

invoke Article 14 of the Convention in conjunction with Article 10 of

the Convention and Article 2 of Protocol No. 4 to the Convention.

5. Finally, the applicants complain that the police merely assumed,

without any good cause, that they would disturb public order. The

applicants complain that the police violated their right to be presumed

innocent. In this respect they invoke Article 6 of the Convention.

THE LAW

1. The applicants complain that they were illegally apprehended and

held by the police until the police penal orders against them had been

issued. They refer in this respect to Article 5 (Art. 5) of the

Convention which secures to everyone the right to liberty and security

of person and provides that no one shall be deprived of his liberty

save in the circumstances set out in Article 5 para. 1 (a) - (f)

(Art. 5-1-a, 5-1-b, 5-1-c, 5-1-d, 5-1-e, 5-1-f).

The Commission recalls that in order to comply with Article 5

para. 1 (Art. 5-1) of the Convention such deprivation of liberty must

be covered by one of the cases exhaustively listed there. In the

circumstances of the present case the Commission finds it most natural

to examine whether sub-paragraph (c) can be applied.

The Commission considers that whether the applicants'

apprehension was ordered "in accordance with a procedure prescribed by

law" is a question which essentially refers back to domestic law, i.e.

the need for compliance with that law. The Commission finds no reason

to doubt that the procedural requirements of Finnish law were observed

in the applicants' case. Furthermore, the Commission considers that

their apprehension was "lawful" in the sense that it was examined and

accepted by the national courts which found it to be in conformity with

the substantive and procedural rules of domestic law.

However, in addition it is required that any deprivation of

liberty should be consistent with the purpose of Article 5 (Art. 5) of

the Convention, i.e. to protect individuals from arbitrariness (cf. for

example Eur. Court H.R., Wassink judgment of 27 September 1990, Series

A no. 185-A, p. 11, para. 24). The Commission recalls here that the

exhaustive list of permissible exceptions in paragraph 1 of Article 5

(Art. 5) of the Convention must be interpreted strictly (cf. Eur. Court

H.R., Ciulla judgment of 22 February 1989, Series A no. 148, p. 18,

para. 41).

The Commission also recalls that according to the case-law of the

European Court of Human Rights Article 5 para. 1 (c) 5 (Art. 5-1-c)

permits deprivation of liberty only in connection with criminal

proceedings. This is apparent from its wording, which must be read in

conjunction both with sub-paragraph (a) and with paragraph 3, which

form a whole with it (cf. above mentioned Ciulla judgment, p. 16, para.

38 and Eur. Court H.R., Lawless judgment of 1 July 1961, Series A no.

3, para. 14, p. 52). Furthermore, in circumstances as in the present

case, Article 5 para. 1 (c) (Art. 5-1-c) also requires that the purpose

of the arrest or detention should be to bring the person concerned

before the competent legal authority (cf. Eur. Court H.R., Brogan and

Others judgment of 29 November 1988, Series A no. 145-B, p. 29, para.

52).

In the present case the Commission recalls that the police

ordered the applicants to leave the vicinity of the town hall for the

maintenance of public order. As they did not comply they were

apprehended and brought to the police station for a preliminary

investigation. Immediately thereafter they were charged and police

penal orders were issued against them for a violation of the Police

Act. As they did not accept the police penal orders the case was

brought before the courts which eventually found the applicants guilty

and sentenced them to pay a fine.

In these circumstances the Commission finds that the applicants'

apprehension does not disclose arbitrariness and that, furthermore,

it had the purpose of bringing the applicants before the competent

legal authority on reasonable suspicion of their having committed an

offence. Consequently, they were deprived of their liberty in

accordance with Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.

Accordingly, the Commission concludes that there is no appearance

of a violation of Article 5 para. 1 (Art. 5-1) of the Convention and

it follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicants complain that their right to liberty of movement

was violated. They invoke Article 2 of Protocol No. 4 (P4-2) to the

Convention, which reads, as far as relevant, as follows:

"1. Everyone lawfully within the territory of a State

shall, within that territory, have the right to liberty of

movement ...

...

3. No restrictions shall be placed on the exercise of

these rights other than such as are in accordance with law

and are necessary in a democratic society in the interests

of national security or public safety, for the maintenance

of ordre public, for the prevention of crime, for the

protection of health or morals, or for the protection of

the rights and freedoms of others.

..."

The Commission considers that Article 5 (Art. 5) of the

Convention, which secures the right to liberty, amounts to a lex

specialis in relation to the right guaranteed by Article 2 of Protocol

No. 4 (P4-2) to the Convention. Even assuming that a separate issue

arises under the last-mentioned provision, the Commission finds that

the case discloses no appearance of a violation of Article 2 of

Protocol No. 4 (P4-2) to the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicants complain further that their right to freedom of

expression was violated. In this respect they invoke Article 10

(Art. 10) of the Convention, which reads, as far as relevant, 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 formalities,

conditions, restrictions or penalties as are prescribed by law

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

... public safety, for the prevention of disorder ... "

The Commission notes, firstly, that the applicants did, in fact,

participate in the demonstration against the motor race in which the

authorities did not interfere in any way. Consequently, the applicants

have not been prevented from imparting information or ideas by means

of a demonstration.

However, even assuming that there was an interference with the

applicants' rights under Article 10 para. 1 (Art. 10-1) when they were

requested to use the other side of the street, the Commission,

recalling its findings above, finds that the restrictions in question

were prescribed by law and that, furthermore, they could be regarded

necessary in a democratic society in the interests of public safety and

for the prevention of disorder. The Commission concludes that the

conditions set out in the second paragraph of Article 10 (Art. 10) were

satisfied in the present case.

Consequently, the Commission finds that there is no appearance

of a violation of the applicants' rights under Article 10 (Art. 10) of

the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicants complain, furthermore, that they were

discriminated against as the police did not prevent everybody from

walking on the relevant pavement. They invoke Article 14 (Art. 14) of

the Convention, which reads:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

In so far as the applicants may have been subjected to treatment

which differed from that of other pedestrians, the Commission,

referring to its above findings, accepts that there was objective and

reasonable justification for such differences. Consequently, there is

no appearance of a violation of Article 14 (Art. 14) of the Convention

read in conjunction with the other provisions invoked by the

applicants.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. Finally, the applicants complain that the police violated their

right to be presumed innocent. In this respect they invoke Article 6

(Art. 6) of the Convention, which reads, as far as relevant, as

follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law ...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

... "

The Commission recalls that Article 6 para. 2 (Art. 6-2) is a

specific aspect of the right to a fair trial set forth in para. 1 (cf.

Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series

A no. 110, p. 14, para. 29).

The Commission notes that the applicants' allegation under

Article 6 para. 2 (Art. 6-2) relates to a factual situation, i.e. that

they were apprehended on suspicion of having disturbed public order

contrary to the Police Act, after which criminal proceedings were

instituted against them. The Commission does not consider that this

factual situation in any way infringed the applicants' right to be

presumed innocent. Furthermore, as regards the subsequent proceedings

instituted against the applicants, the Commission notes that the City

Court heard evidence from all the witnesses that the parties had

requested should be heard and based its judgment on this evidence. The

Commission finds that no evidence has been adduced to show that, in the

court proceedings, the applicants were not presumed innocent.

It follows that this part of 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 First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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HEIKKILÄ, OJALA, HAKALIN AND HYÖDYNMAA v. FINLAND

HEIKKILÄ, OJALA, HAKALIN AND HYÖDYNMAA v. FINLAND

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