SEPARATE OPINION, PARTLY CONCURRING AND PARTLY DISSENTING, OF JUDGE DE MEYER

(Translation)

I.

Art, or what claims to be art, certainly falls within the sphere of freedom of expression.

There is no need at all to try to see it was a vehicle for comm unicating information or ideas [1] : it may be that but it is doubtful whether it is necessarily so.

Whilst the right to freedom of expression "shall include" or "includes" the freedom to "seek", to "receive" and to "impart" "information" and "ideas" [2] , it may also include other things. The external manifestation of the human personality may take very different forms which cannot all be made to fit into the categories mentioned above.

II.

It is only with some hesitation that I have come to the view that the courts of the defendant State did not infringe the applicants ’ right to freedom of expression by imposing on them the fines at issue in this case.

That I was finally able to form this view owed much to the fact that the paintings in question were exhibited in rather special circumstances [3] . This factor made it possible for the Swiss courts properly to determine, without going beyond the limits of their discretionary power, that to impose these fines was "necessary in a democratic society".

It might have been otherwise if these paintings had been exhibited in other circumstances.

III.

The particular nature of the circumstances of their exhibition in Fribourg in 1981 leads me, moreover, to believe that it has not been shown that in this case it was necessary to confiscate the paintings.

Rather it seems to me that such confiscation went beyond what could be considered necessary and that the fines were sufficient on their own.

[*]  Note by the Registrar: The cas e is numbered 25/1986/123/174. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] See paragraph 27 of the judgment.

[2] See Article 10 (art. 10) of the European Convention on Human Rights, Article 19 of the International Covenant on Civil and Political Rights and Article 19 of the Universal Declaration of Human Rights.

[3] See the first sub-paragraph of paragraph 36 of the judgment.