AS TO THE ADMISSIBILITY OF
Application No. 26712/95
by Timo Juhani LARMELA
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 28 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 13 March 1995 by
Timo Juhani LARMELA against Finland and registered on 16 March 1995
under file No. 26712/95;
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 applicant is a Finnish citizen, a chief designer born in 1947
and resident in Helsinki. He is represented before the Commission by
Mr Matti Wuori, a lawyer practising in Helsinki.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1991 the applicant founded together with some others an
association called the Cannabis Association of Finland (Suomen
kannabisyhdistys, Finlands cannabis föreningen) whose aim was "to
influence intoxicant policy and legislation with a view to making the
use, availability and domestic cultivation for personal use of cannabis
legal for Finnish citizens of age as well as to study the use of
cannabis in different cultures and periods of time".
On 14 November 1991 the association represented by the applicant,
who was then and still is its president, requested registration in the
register of associations kept by the Registry of Associations
(yhdistysrekisteritoimisto, föreningsregisterbyrån) of the Ministry of
Justice in order to obtain the rights belonging to a registered
association.
The legal consequences of the registration of an association are
according to chapter 1 section 6 of the Associations Act (yhdistyslaki,
föreningslag) No. 503/1989 the following:
(Translation)
"An association may acquire rights and conclude legal acts
and have a standing before a court and other authorities if
it has been registered in accordance with the provisions of
this Act.
The members of a registered association shall not be
personally liable for the obligations of the association."
On the other hand, chapter 10 section 58 of the same Act reads
as follows:
(Translation)
"An association which has not been registered cannot in its
own name hold rights, commit itself or act as a plaintiff
or a defendant in a trial.
Those, who have participated in or decided on an act
concluded on behalf of an unregistered association, shall
be personally as well as jointly and severally liable for
an obligation which results thereof. The other members of
the association shall not be personally liable for such an
obligation."
On 5 May 1993 the Ministry of Justice refused to enter the
association into its register. As reasons therefor the Ministry stated,
inter alia, as follows:
(Translation)
"... the aim of the association ... must be regarded as
being against public decency and morals because the aim in
its presented form is contrary to the prevailing legal and
moral concepts of our society..." The provisions on
which the Ministry based its decision were, inter alia, the
following:
Chapter 1 section 1 subsection 1 of the Associations Act:
(Translation)
"An association may be founded for the common realisation
of an ideological aim. The aim may not be contrary to law
or public decency and morals."
Chapter 9 section 49 subsection 1 (3) of the same Act:
(Translation)
"The Ministry of Justice shall on the basis of the
information given in the report for entry control that
...
3) the provisions of chapter 1 of this Act do not pose
obstacles in the way of registering the association."
On 6 June 1993 the applicant in his capacity as president of the
association appealed against the decision to the Supreme Administrative
Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). He
argued, inter alia, that the Ministry had exceeded its authority when
considering that the social views the association represented, i.e. its
opinion of criminal and control policies, as such prevented the
registration of the association. He maintained that this practice was
contrary to the basic principles of a pluralistic society and that the
interpretation of the concept of public decency and morals should be
tolerant. He submitted that in case an association after registration
was found to act in a way which could justifiably be regarded as
dangerous or harmful in a democratic society, measures could be taken
afterwards. In his opinion, if an association was not registered, its
aim could not be fulfilled in an effective way, since it lacked legal
personality. Without legal personality the association was under
Finnish law unable to arrange collections of money legally in order to
support its activities. As the association was refused the right to
register, he was denied, effectively, the right to freedom of
association and expression. The applicant referred to national
provisions concerning civil rights and associations and to the
Convention.
According to the Law on Collection of Money (rahankeräyslaki, lag
om penninginsamlingar) No. 590/1980, which was partly amended by Act
No. 681/1983, inter alia, the following requirements are to be
fulfilled:
(Translation)
"Section 2 subsection 1. A collection of money may be
realised in order to obtain money for a social, cultural or
ideological purpose or for citizens' public activities."
"Section 3. A collection of money requires a permit.
A permit is not needed if the organiser of a public meeting
collects money from the participants."
"Section 4. The permit may be granted only to a Finnish
association which is registered or another society or
independent foundation whose aim is entirely social,
cultural or ideological (the grantee of the permit).
The permit may be granted only providing that the
collection is appropriate from the point of view of the
public interest. ..."
On 16 September 1994, after inviting the Ministry of Justice and
the applicant to submit statements, the Supreme Administrative Court
ruled that the association's aim to change prevailing social concepts
and legislation could not as such be regarded as contrary to public
decency and morals. In evaluating whether the association's aim was
against public decency and morals the nature of the advocated change
had to be taken into account. In this connection the Court referred to
a report of the Committee of Legal Affairs of the Parliament from 1993
to the effect that it was important that society clearly show its
disapproval of the use of drugs. Considering that the association's aim
was to encourage a habit detrimental to health and not yet common in
Finland and that the use of the drug cannabis was a criminal offence
the aim was in violation of public decency and morals. Therefore the
Court upheld the Ministry's decision.
In addition to the above-mentioned provisions of the Associations
Act the Supreme Administrative Court based its decision on, inter alia,
the following provisions:
Section 10 of the Constitution Act of Finland (Suomen
hallitusmuoto, regeringsform för Finland) No. 94/1919, as in force at
the relevant time, which states as follows:
(Translation)
"A Finnish citizen has the right to freedom of speech and
the right to publish works in written form and in picture
form without advance interference as well as the right to,
without advance permission, assemble in order to discuss
affairs of public interest or for any other legitimate
purpose and the right to found associations in order to
realise aims which are not illegal or immoral.
Provisions concerning the exercise of these rights shall be
prescribed by law."
Chapter 10 section 59 subsection 1 of the Associations Act, which
reads as far as relevant:
(Translation)
"In a matter which concerns an unregistered association the
president or the chairman of the board or another person,
who attends to the association's affairs, may act on its
behalf before a court or another authority. ..."
COMPLAINTS
1. The applicant complains that his right to freedom of expression
is violated, since the refusal to register the association makes it
impossible to exercise this right in an effective way because the
association cannot legally seek financial support from the public to
help it to pursue its objectives. He maintains that the refusal amounts
to censorship of opinion and prevention of dissemination of dissenting
information merely because they do not conform to prevailing legal and
moral opinions. He further maintains that this restriction is not
necessary in a democratic society, since the concern with the
protection of health cannot be regarded as a valid or sufficient
reason. He invokes Article 10 of the Convention.
2. Furthermore the applicant complains that his freedom of
association is violated, since the above-mentioned consequences of the
refusal to register the association make it impossible to exercise this
right in an effective way. He refers to the same argument as above
concerning the necessity of the restriction. He invokes Article 11 of
the Convention.
THE LAW
1. The applicant complains that the refusal to register the
association violated his right to freedom of expression. He invokes
Article 10 (Art. 10) of the Convention which reads as far as relevant:
"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. ..."
The Commission notes that the first question which arises in this
case is whether the fact that the registration was refused constituted
an interference within the meaning of Article 10 (Art. 10) of the
Convention.
Article 10 (Art. 10) does not in itself grant a right to freedom
of expression through a registered association (cf. No 7729/76,
Dec. 17.12.76, D.R. 7, pp. 164 and 174). The fact that the association
was denied registration does not therefore as such constitute an
interference with the rights guaranteed by Article 10 (Art. 10). It
follows that the rights under Article 10 (Art. 10) are independent of
the right to have an association registered and do not include the
latter right. In the present case the applicant has not been subjected
to any restrictions in respect of his rights to hold opinions and to
receive and impart information and ideas.
The Commission finds accordingly that there has been no
interference with the applicant's right to freedom of expression as
guaranteed by Article 10 para. 1 (Art. 10-1) . It follows that the
applicant's complaints as submitted under Article 10 (Art. 10) are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that the above-mentioned refusal also
violated his right to freedom of association. He invokes Article 11
(Art. 11) of the Convention which reads as follows:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others including the
right to form and to join trade unions for the protection
of his interests.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of
national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals
or for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of
the armed forces, of the police or of the administration of
the State."
The Commission notes that the first question here is whether the
refusal interfered with the applicant's freedom of association.
The applicant argues that the refusal made the effective exercise
of his right to freedom of association impossible, because the
association, not being a legal person, cannot appeal to the public for
support to the associations's cause, i.e. to conduct discussion.
The Commission finds that although under national law recognition
of an association's legal personality is dependent on its registration,
an unregistered association can nevertheless be freely formed and
engage in certain activities, just as it can possess funds through its
members. It may be questioned, therefore, whether the fact that the
association was unable to register prevented it from pursuing its
objectives and thus at all constituted an interference with the
applicant's right to freedom of association (cf., e.g. No. 18874/91,
Dec. 12.1.94, D.R. 76, p. 44).
The Commission considers that this question need not be answered,
since even assuming that there was an interference, it is justified
under paragraph 2 of Article 11 (Art. 11-2) of the Convention, for the
following reasons.
Restrictions on the exercise of the right guaranteed by this
Article are permitted if they are prescribed by law, pursue a
legitimate aim and are necessary in a democratic society. In this case
the Commission notes that under Finnish law the Associations Act
empowers the administrative authority to refuse registration in certain
cases. This law was accessible, foreseeable in its effects and
compatible with the pre-eminence of law.
With regard to the legitimacy of the interference the Commission
considers that the aim pursued by the authorities was the protection
of health and morals which is one of the legitimate aims set out in
Article 11 para. 2 (Art. 11-2).
With regard to the necessity of the measure, the Commission
recalls that this implies "a pressing social need" in which area States
have a margin of appreciation (cf. Eur. Court HR, Handyside v. United
Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).
The aims of the association included influencing intoxicant
policy and legislation with a view to making the use, availability and
domestic cultivation of cannabis legal. According to the Supreme
Administrative Court the association's aim to change the law could not
as such be regarded as incompatible with public decency and morals.
Nevertheless, the Court considered that the aim of the association was
to encourage a habit detrimental to health and not yet common in
Finland and that the use of cannabis was a criminal offence there. The
Court also took account of a report of a Committee of the Parliament
to the effect that society should show its disapproval of the use of
drugs.
In these circumstances, the Court's conclusion that the aim of
the association was in violation of public decency and morals within
the meaning of the Associations Act cannot be regarded as unreasonable.
Furthermore, the refusal of registration cannot be considered
disproportionate to the aim pursued, since the applicant has not shown
that it prevented any essential activity of the association. Therefore,
the Commission considers that the refusal to register the association
can be regarded as a necessary measure in a democratic society, having
regard to the margin of appreciation States enjoy.
It follows that, in so far as there was an interference with the
applicant's right to freedom of association, the interference was
justified under Article 11 para 2 (Art. 11-2) of the Convention (cf.
also No. 14223/88, Dec. 5.6.91, D.R. 70, p. 218).
This part of the application must therefore be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy