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)
Full & Egal Universal Law Academy