DISSENTING OPINION OF JUDGE SPIELMANN

(Translation)

1.   In his separate opinion, Mr. H. Danelius of the Commission stated inter alia as follows:

"In my view, the Commission should have asked whether, taken together, the two measures" [fine and confiscation] "constituted a violation of his right to freedom of expression as protected by Article 10 (art. 10) of the Convention, and my reply would have been that they did."

2.   I can only agree with this approach to the question, just as I endorse Mr. Danelius completely when he states:

"I believe Mr. Müller ’ s fine and the fines imposed on the other applicants for exhibiting the three paintings at Fribourg are a more complex matter since the question arises whether there is any real need, in modern society, to punish such expression of artistic creativity, even though some may find them offensive or even disgusting."

3.   However, I do not agree with the following conclusion reached by Mr. Danelius:

"In the end, though, I voted with the rest of the Commission on this matter, wishing to conform to European Court case-law, particularly Handyside . There the Court pointed out that ‘ it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals ’ and that the requirements of morals vary ‘ from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject ’ . The Court added that ‘ by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements ’ ."

4.   In purely logical terms I find it very difficult to regard the fines imposed as coming within the requirements of Article 10 (art. 10) of the Convention and, on the other hand, to agree with the Commission that the confiscation of the paintings did not comply with the requirements of that Article (art. 10).

5.   I believe the two matters are indistinguishable. Either there has been a violation of the Convention both in respect of the fines and the confiscation, or there has been no violation at all.

6.   My view is that there has been a violation of Article 10 (art. 10) of the Convention. I will explain this view without drawing any distinction between the fines imposed and the confiscation ordered.

7.   A. Prescribed by law

I agree entirely with the finding of the majority of the Court that the convictions and confiscation order were prescribed by law.

8.   B. Legitimate nature of the aim

I have no reason to doubt that these decisions had a legitimate aim under Article 10 § 2 (art. 10-2) of the Convention.

9.   C. "Necessary in a democratic society"

The majority of the Court recognises "that conceptions of sexual morality have changed in recent years. Nevertheless, having inspected the original paintings, the Court does not find unreasonable the view taken by the Swiss courts that those paintings, with their emphasis on sexuality in some of its crudest forms, were ‘ liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity ’ ." Furthermore, this was "an exhibition which was unrestrictedly open to - and sought to attract - the public at large." In the circumstances, having regard to the margin of appreciation left to them under Article 10 § 2 (art. 10-2), [the Swiss courts] were entitled to consider it ‘ necessary ’ for the protection of morals to impose a fine on the applicants for publishing obscene material."

As regards the confiscation of the disputed paintings, the majority of the Court also considers that "having regard to the margin of appreciation, the Swiss courts were entitled to hold that confiscation of the paintings in issue was ‘ necessary ’ for the protection of morals".

10. I cannot agree with this opinion for the following reasons.

(a) Relativity of the notion of "obscenity"

There are numerous examples in the press, literature and painting which should teach us to be more prudent in this field. Freedom of expression is the rule and interferences by the State, properly justified, must remain the exception.

For example, in 1857, Flaubert was prosecuted for his last novel "Madame Bovary".

In the same year, on 20 August 1857 to be precise, Charles Baudelaire and his publishers were summoned before the same Regional Criminal Court of the Seine . The subject-matter of the proceedings: "Les Fleurs du Mal".

In the context of this case, it is not inappropriate to recall this trial (see appendix).

In my opinion, the Contracting States should take greater account of the notion of the relativity of values in the field of the expression of ideas.

If, of necessity, we may regard State authorities as being in principle in a better position than the international court to give an opinion on the exact content of the requirements of Article 10 (art. 10) of the Convention, it remains unacceptable in a Europe composed of States that the State in question should leave such an assessment to a canton or a municipal authority.

If this were to be the case, it would clearly be impossible for an international court to find any violation of Article 10 (art. 10) as the second paragraph of that Article would always apply (art. 10-2).

(b) "Margin of appreciation" of national authorities

It is not necessary to repeat the Court ’ s case-law in this regard.

I believe however that there are limits to this concept.

Otherwise, many of the guarantees laid down in the Convention might be in danger of remaining a dead letter, at least in practice.

Moreover, can it not be argued that all exaggeration is liable in the short or medium term to lose its significance?

As will be stated below, I do not believe that the notion of "the margin of appreciation" justified the decisions taken by the Swiss authorities as these measures were in no respect necessary in a democratic society.

(c) The criterion of "necessity"

In concluding that the decisions taken were in no respect necessary in a democratic society, I would rely on the following two arguments:

1. Although convicting the applicants in criminal proceedings, the Swiss authorities did not order the destruction of the disputed paintings, despite a formal provision in their criminal code.

2. Although they ordered the confiscation of the disputed paintings, the authorities agreed in 1988 to restore these items.

In other words, can it seriously be argued that what was "necessary" in 1987 is no longer so in 1988, or, what is certainly no longer "necessary" in 1988, was necessary in 1982?

I do not understand this reasoning.

11. In these circumstances, I conclude that there was a violation of Article 10 (art. 10) of the Convention both as regards the fines imposed and the confiscated - albeit returned - pictures.

APPENDIX

The "Baudelaire" case : "Les Fleurs du Mal"

On 20 August 1857 , the 6th Criminal Chamber of the Seine Regional Court delivered the following judgment:

"The Regional Court ,

Whereas Baudelaire, Poulet-Malassis and de Broisse have offended against public morality, imposes a fine of 300 Francs on Baudelaire and 100 Francs each on Poulet-Malassis and de Broisse ;

Orders the destruction of documents nos. 20, 30, 39, 80, 81 and 87 in the book of documents ..."

This conviction followed the formal address by the public prosecutor ’ s representative, who cited inter alia the following verses in support of the prosecution case :

"Je sucerai, pour noyer ma rancoeur, Le népenthès et la bonne ciguë Aux bouts charmants de cette gorge aiguë Qui n ’ a jamais emprisonné de coeur ..."

and also :

"Moi, j ’ ai la lèvre humide et je sais la science De perdre au fond d ’ un lit l ’ antique conscience. Je sèche tous les pleurs sur mes seins triomphants Et fais rire les vieux du rire des enfants. Je remplace, pour qui me voit nue et sans voiles, La lune, le soleil, le ciel et les étoiles !"

After these quotations, the public prosecutor ’ s representative stated as follows:

"Gentlemen, ..., I say to you: take a stand by your judgment in this case against these growing, unmistakable tendencies, against this unhealthy fever which seeks to paint everything, to write everything and to say everything, as though the crime of offending public morality had been abolished and that morality no longer existed.

Paganism had its shameful manifestations which may be found in the ruins of the destroyed cities of Pompeii and Herculanum . However, in the temple and in public places, its statues have a chaste nudity. Its artists follow the cult of plastic beauty; they make harmonious shapes out of the human body and do not depict it as being debased or throbbing in the stranglehold of debauchery; they respected community life.

In our society immersed in Christianity, show at least the same respect."

Baudelaire ’ s defence lawyer, Maître Gustave Chaix d ’ Est-Ange , stated as follows:

"...

After the title "Les Fleurs du Mal" comes the epigraph: all the author ’ s thinking is there, the entire spirit of the book; it is in a way a second title, more explicit than the first, explaining, commenting and elaborating upon it:

‘ On dit qu ’ il faut couler les exécrables choses Dans le puits de l ’ oubli et au sépulchre encloses, Et que par les escrits le mal résuscité Infectera les moeurs de la postérité; Mais le vice n ’ a point pour mère la science, Et la vertu n ’ est pas mère de l ’ ignorance. ’ "

(Th. Agrippa d ’ Aubigné, les Tragiques, livre II)

Maître Gustave Chaix d ’ Est-Ange went on to state:

"The intimate thoughts of the author are even more clearly expressed in the first poem which he dedicates to the reader as a warning:

‘ La sottise, l ’ erreur, le péché, la lésine, Occupent nos esprits et travaillent nos corps. Et nous alimentons nos aimables remords, Comme les mendiants nourrissent leur vermine.

Nos péchés sont têtus, nos repentirs sont lâches; Nous nous faisons payer grassement nos aveux; Et nous rentrons gaîment dans le chemin bourbeux, Croyant par de vils pleurs laver toutes nos taches.

C ’ est le Diable qui tient les fils qui nous remuent! Aux objets répugnants nous trouvons des appas. Chaque jour vers l ’ Enfer nous descendons d ’ un pas, Sans horreur, à travers des ténèbres qui puent. ’ "

Baudelaire ’ s lawyer added:

"Gentlemen, change this into prose, delete the rhyme and the caesura, grasp the substance of this powerful and vivid language and the underlying intentions; and tell me if we have ever heard this language being delivered from the Christrian pulpit, from the lips of some fiery preacher; tell me if the same thoughts would not be found, perhaps sometimes even the same expressions, in the homilies of some strict and unsophisticated father of the Church".

On 31 May 1949 , at the request of the Société des gens de lettres , the Paris Court of Cassation in a decision on the merits, quashed the above-mentioned judgment of the Seine Regional Court on the following grounds:

"Whereas the prohibited poems do not contain any obscene or even rude term and do not exceed the licence which the artist is permitted ...

Whereas accordingly, the crime of offending public morality is not established ...

...

Quashes the judgment of 20 August 1857 , restores the good name of Baudelaire, Poulet-Malassis and de Broisse ..."

When Baudelaire ’ s good name was thus restored, he had already been dead more than 80 years.

In legal terms, this was quite simply a miscarriage of justice.

(Source: "Le procès des Fleurs du Mal" - ‘ Le journal des procès ’ no. 85, 1986 - Bruxelles, Ed . Justice et Société )