CONCURRING OPINION OF JUDGE BERNHARDT

Personally, I am not convinced that the video film Visions of Ecstasy should have been banned by the refusal of a classification certificate, and this conviction is, inter alia, based on my impression when seeing the film.  But it is the essence of the national margin of appreciation that, when different opinions are possible and do exist, the international judge should only intervene if the national decision cannot be reasonably justified. I have finally voted with the majority for the following reasons: (1) A prior control and classification of video films is not excluded in this most sensitive area and in view of the dangers involved, especially for young persons and the rights of others. (2) Such a control requires a proper procedure and a careful weighing of the interests involved whenever a classification certificate is refused.  In this respect, the present judgment describes in detail (paragraphs 11-19) the considerations and reasons in the decisions of the British authorities. (3) In respect of the question whether the interference was "necessary in a democratic society", I am convinced that the national authorities have a considerable margin of appreciation, and they have made use of it in the present case in a manner acceptable under Convention standards.

CONCURRI NG OPINION OF JUDGE PETTITI

(Translation)

I voted with the majority, but for reasons which are substantially different in structure and content from those given in the judgment; I have not followed the reasoning in the Otto-Preminger- Institut case (judgment of 20 September 1994, Series A no. 295-A). The first problem considered concerned the British legislation making blasphemy a criminal offence. Admittedly, it is regrettable that the protection afforded by this legislation does not apply to other religions, for such a limitation makes no sense in 1996 now that we have the United Nations and UNESCO instruments on tolerance.  However, the European Convention on Human Rights does not, on the one hand, prohibit legislation of this type, which is found in a number of member States, and, on the other hand, it leaves scope for review under Article 14 (art. 14).  In the present case no complaint had been made to the European Court under that Article (art. 14). The Court had to decide the case under Article 10 (art. 10). To my mind, the law on blasphemy provides a basis for consideration of the case under paragraph 2 of Article 10 (art. 10-2) and cannot automatically justify a ban on distribution. Article 9 (art. 9) is not in issue in the instant case and cannot be invoked.  Certainly the Court rightly based its analysis under Article 10 (art. 10) on the rights of others and did not, as it had done in the Otto-Preminger- Institut judgment combine Articles 9 and 10 (art. 9, art. 10), morals and the rights of others, for which it had been criticised by legal writers. However, the wording adopted by the Chamber in paragraphs 50 and 53 creates, in my opinion, too direct a link between the law of blasphemy and the criteria justifying a ban or restriction on the distribution of video- cassettes.The fact that under the legislation on blasphemy, profanation or defamation may give rise to a prosecution does not in itself justify, under Article 10 (art. 10) of the European Convention, a total ban on the distribution of a book or video. In my view, the Court ought to have made that clear. There can be no automatic response where freedom of expression is concerned. The Court should, I think, have set out in its reasoning the facts that led the Video Appeals Committee - to which the applicant appealed against the determination of the British Board of Film Classification - to prohibit distribution of the video. I consider that the same decision could have been reached under paragraph 2 of Article 10 (art. 10-2) on grounds other than blasphemy, for example the profanation of symbols, including secular ones (the national flag) or jeopardising or prejudicing public order (but not for the benefit of a religious majority in the territory concerned). The reasoning should, in my opinion have been expressed in terms both of religious beliefs and of philosophical convictions.  It is only in paragraph 53 of the judgment that the words "any other" are cited. Profanation and serious attacks on the deeply held feelings of others or on religious or secular ideals can be relied on under Article 10 para . 2 (art. 10-2) in addition to blasphemy. What was particularly shocking in the Wingrove case was the combination of an ostensibly philosophical message and wholly irrelevant obscene or pornographic images. In this case, the use of obscenity for commercial ends may justify restrictions under Article 10 para . 2 (art. 10-2); but the use of a figure of symbolic value as a great thinker in the history of mankind (such as Moses, Dante or Tolstoy) in a portrayal which seriously offends the deeply held feelings of those who respect their works or thought may, in some cases, justify judicial supervision so that the public can be alerted through the reporting of court decisions. But the possibility of prosecution does not suffice to make a total ban legitimate.  That question has been raised recently: can a breach of rules of professional conduct (medical confidentiality) in itself justify a total ban on a book? Mr Wingrove ’ s own argument and the contradictions it contained could even have been used to supplement the Court ’ s reasoning. In his application he claimed that intellectual works should be protected against censorship on exclusively moral or religious grounds.  In an article which is not reproduced in the video Mr Wingrove indicated that he was seeking to interpret St Teresa ’ s writings explaining her ecstasies.  In his submission, they amounted practically to a Voltairean work or one having anti-religious connotations.  The film is quite different.  Mr Wingrove did not even agree to cut (which he was entitled to do as the film-maker) the "simulated copulation" scene which was quite unnecessary, even in the context of the film.  Indeed, he acknowledged that as the video stood, it could have been called Gay Nuns in Bondage, like a pornographic film (see the Commission ’ s report, decision on admissibility, p. 32). The use of the word "ecstasy" in the title was a source of ambiguity, as much for people interested in literary works as for th ose interested in pornography. The sale in hypermarkets and supermarkets of videos inciting pornographic or obscene behaviour is even more dangerous than the sale of books, as it is more difficult to ensure that the public are protected. The recent world-wide conference in Stockholm on the protection of children highlighted the harmful social consequences of distributing millions of copies of obscene or pornographic videos to the public without even minimal checking of their identification marks. Disguising content is a commercial technique that is used to circumvent bans (for example, videos for paedophiles that use adolescent girls, who have only just attained their majority, dressed up as little girls). Admittedly, before it was edited, Mr Wingrove ’ s film was presented as having literary rather than obscene ambitions, but its maker chose not to dispel the ambiguity he had created.  Nor did he seek judicial review, as it was open to him to do, of the Video Appeals Committee ’ s dismissal of his appeal against the Board of Film Classification ’ s refusal to grant a classification certificate. It is true that section 7 of the Video Recordings Act 1984 contains a variety of provisions regulating the grant and use of certificates, ranging from outright bans to restrictions on viewing, identification requirements (in sales centres and on the cover) or measures to protect minors. On this point, British and North American case-law, particularly in Canada , contains a wealth of definitions of the boundaries between literature, obscenity and pornography (see the Revue du Barreau du Québec and the Supreme Court ’ s case-law review). The majority of the Video Appeals Committee took the view that the imagery led not to a religious perception, but to a perverse one, the ecstasy being furthermore of a perverse kind. That analysis was in conformity with the approach of the House of Lords, which moreover did not discuss the author ’ s intention with respect to the moral element of the offence.  The Board ’ s Director said that it would have taken just the same stance in respect of a film that was contemptuous of Mohammed or Buddha. The decision not to grant a certificate might possibly have been justifiable and justified if, instead of St Teresa ’ s ecstasies, what had been in issue had been a video showing, for example, the anti-clerical Voltaire having sexual relations with some prince or king.  In such a case, the decision of the European Court might well have been similar to that in the Wingrove case.  The rights of others under Article 10 para . 2 (art. 10-2) cannot be restricted solely to the protection of the rights of others in a single category of religious believers or philosophers, or a majority of them. The Court was quite right to base its decision on the protection of the rights of others pursuant to Article 10 (art. 10), but to my mind it could have done so on broader grounds, inspired to a greater extent by the concern to protect the context of religious beliefs "or any other", as is rightly pointed out in paragraph 53 of the judgment. In the difficult balancing exercise that has to be carried out in these situations where religious and philosophical sensibilities are confronted by freedom of expression, it is important that the inspiration provided by the European Convention and its interpretation should be based both on pluralism and a sense of values.

DISSENTING OPINION OF JUDGE DE MEYER

1. This was a pure case of prior restraint, a form of interference which is, in my view, unacceptable in the field of freedom of expression. What I have written on that subject, with four other judges, in the case of Observer and Guardian v. the United Kingdom [4] applies not only to the press, but also, mutatis mutandis, to other forms of exp ression, including video works.

2. It is quite legitimate that those wishing to supply video works be obliged to obtain from some administrative authority a classification certificate stating whether the works concerned may be supplied to the general public or only to persons who have attained a specified age, and whether, in the latter case, they are to be supplied only in certain places [5] .

Of course, anything so decided by such authority needs reasonable justification and must not be arbitrary.  It must, if con test ed, be subject to judicial review, and it must not have the effect of preventing the courts from deciding, as the case may be, whether the work concerned deserves, or does not deserve, an y sanction under existing law.

3. Under the system established by the Video Recordings Act 1984 the British Board of Film Classification and the Video Appeals Committee may determine that certain video works are not suitable for being classified in any of its three categories [6] , and they can thus ban them absolutely ab initio. This was indeed what actually happened in respect of the piece in issue in the present case. It certainly goes too far. 4. To the extent that the criminal law of blasphemy might have been infringed by the applicant, I would observe that the necessity of such laws is very much open to question. I would rather join Mr Patten ’ s remark that for the faithful "the strength of their own belief is the best armour against mockers and blasphemers" [7] .