WINGROVE v. THE UNITED KINGDOM



                  EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 17419/90

                            Nigel Wingrove

                                against

                          the United Kingdom

                       REPORT OF THE COMMISSION

                     (adopted on 10 January 1995)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 19-39). . . . . . . . . . . . . . . . . . . . . . . . 4

      A.   The particular circumstances of the case

           (paras. 19-31) . . . . . . . . . . . . . . . . . . . . . 4

      B.   Relevant domestic law

           (paras. 32-39) . . . . . . . . . . . . . . . . . . . . .12

III.  OPINION OF THE COMMISSION

      (paras. 40-70). . . . . . . . . . . . . . . . . . . . . . . .15

      A.   Complaint declared admissible

           (para. 40) . . . . . . . . . . . . . . . . . . . . . . .15

      B.   Point at issue

           (para. 41) . . . . . . . . . . . . . . . . . . . . . . .15

      C.   As regards Article 10 of the Convention

           (paras. 42-69) . . . . . . . . . . . . . . . . . . . . .15

           (a)   Interference with freedom of expression

                 (para. 43) . . . . . . . . . . . . . . . . . . . .15

           (b)   Prescribed by law

                 (paras. 44-49) . . . . . . . . . . . . . . . . . .15

           (c)   Legitimate aim

                 (paras. 50-53) . . . . . . . . . . . . . . . . . .16

           (d)   Necessary in a democratic society

                 (paras. 54-69) . . . . . . . . . . . . . . . . . .18

           CONCLUSION

           (para. 70) . . . . . . . . . . . . . . . . . . . . . . .21

                           TABLE OF CONTENTS

                                                                 Page

CONCURRING OPINION OF MR. SCHERMERS . . . . . . . . . . . . . . . .22

CONCURRING OPINION OF MR. LOUCAIDES . . . . . . . . . . . . . . . .23

OPINION DISSIDENTE DE M. SOYER

A LAQUELLE DECLARE SE RALLIER M. WEITZEL. . . . . . . . . . . . . .24

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .26

APPENDIX II  : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .27

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is a British citizen, born in 1957 and resident in

London. He was represented before the Commission by Messrs. Stephens

Innocent, Solicitors, London.

3.    The application is directed against the United Kingdom. The

respondent Government were represented by their Agents, Mrs. A. Glover

and Mr. H. Llewellyn, both of the Foreign and Commonwealth Office.

4.    The case concerns the refusal of the British Board of Film

Classification to grant a classification certificate to the applicant

for an 18 minute video film he made, entitled "Visions of Ecstasy",

because it was deemed to be blasphemous.  The applicant invokes

Article 10 of the Convention.

B.    The proceedings

5.    The application was introduced on 18 June 1990 and registered on

13 November 1990.

6.    After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

7 April 1992.  It decided, pursuant to Rule 48 para. 2 (b) of the Rules

of Procedure, to give notice of the application to the respondent

Government and to invite the parties to submit written observations on

admissibility and merits.  The Government's observations were submitted

on 24 July 1992 after an extension of the time-limit fixed for this

purpose.  The applicant replied on 18 December 1992 also after an

extension of the time-limit.  (On 23 October 1992 the Commission had

granted the applicant legal aid.)

7.    On 10 March 1993 the Government submitted comments on points

raised in the applicant's observations, to which the applicant

responded on 10 May 1993.

8.    On 11 May 1993 the Commission decided to invite the parties to

make oral submissions at a hearing.  The hearing was fixed for

15 October 1993, but then adjourned until 8 March 1994 at the request

of the applicant.

9.    On 21 February 1994, prior to the hearing, the applicant

submitted a pre-hearing brief and a document containing counsel's

advice on remedies. On 7 March 1994 the Commission saw the applicant's

video film.

10.   At the hearing on 8 March 1994 the Government were represented

by Mr. H. Llewellyn, Foreign and Commonwealth Office, Agent,

Mr. P. Havers, Counsel, Miss S. Dickson, Foreign and Commonwealth

Office, Mr. D. Evans, Home Office, Adviser and Mr. R. Heaton, Home

Office, Adviser. The applicant was represented by Mr. G. Robertson, QC,

Counsel, Mr. M. Stephens, and Mr. P. Chinnery, Solicitors,

Messrs. Stephens Innocent.

11.   On 8 March 1994 the Commission declared the application

admissible.

12.   The text of the Commission's decision on admissibility was sent

to the parties on 18 March 1994 and they were invited to submit such

further information or observations on the merits as they wished.  No

further observations were submitted.

13.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.    The present Report

14.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

      MM.  C.L. ROKAKIS, Acting President

           F. ERMACORA

           S. TRECHSEL

           A. WEITZEL

           J.-C. SOYER

           H.G. SCHERMERS

      Mrs. G.H. THUNE

      Mrs. J. LIDDY

      MM.  L. LOUCAIDES

           J.-C. GEUS

           M.A. NOWICKI

           I. CABRAL BARRETO

           N. BRATZA

           J. MUCHA

           D. SVÁBY

           E. KONSTANTINOV

15.   The text of this Report was adopted on 10 January 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

16.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

      (i)  to establish the facts, and

      (ii) to state an opinion as to whether the facts found disclose

           a breach by the State concerned of its obligations under

           the Convention.

17.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

19.   The applicant wrote the shooting script for, and directed the

making of, a video work entitled "Visions of Ecstasy" ("the video").

Its running time is approximately 18 minutes, and it contains no

dialogue, only music and moving images.  The idea for the video was

derived from the life and writings of St. Teresa of Avila, the

sixteenth century Carmelite nun and founder of many convents, who

experienced powerful ecstatic visions of Jesus Christ.

20.   The action of the video centres upon a youthful actress dressed

as a nun and intended to represent St. Teresa.  It begins with the nun,

dressed loosely in a black habit, stabbing her own hand with a large

nail and spreading her blood over her naked breasts and clothing.  In

her writhing, she spills a chalice of communion wine and proceeds to

lick it up from the ground.  She loses consciousness.  This sequence

takes up approximately half of the running time of the video.  The

second part of the video shows St. Teresa dressed in a white habit

standing with her arms held above her head by a white cord which is

suspended from above and tied around her wrists.  The near naked form

of a second female, said to represent the psyche of St. Teresa, slowly

crawls her way along the ground towards her.  Upon reaching her feet,

the psyche begins to caress her, first her feet and legs, then her

midriff, then her breasts and finally to engage in passionate kisses

with her.  Throughout this sequence, St. Teresa appears to be writhing

in exquisite erotic sensation.  This sequence is intercut at frequent

intervals with a second sequence in which one sees the body of Christ,

fastened to the cross which is lying upon the ground.  St. Teresa first

kisses the stigmata of his feet before moving up his body and kissing

or licking the gaping wound in his right side.  Then she sits astride

him, seemingly naked under her habit, all the while moving in a motion

reflecting intense erotic arousal, and kisses his lips.  For a few

seconds, it appears that he responds to her kisses.  This action is

intercut with the passionate kisses of the Psyche already described.

Finally, St. Teresa runs her hand down to the fixed hand of Christ and

entwines his fingers in hers.  As she does so, the fingers of Christ

seem to curl upwards to hold with hers, whereupon the video ends.

21.   Apart from the cast list which appears on the screen for a few

seconds, the viewer has no means of knowing that the person dressed as

a nun in the video is intended to be St. Teresa or that the other woman

who appears is intended to be her psyche.  No attempt is made in the

video to explain its historical background.

22.   The video was submitted to the British Board of Film

Classification ("the Board"), being the authority designated by the

Home Secretary under section 4 (1) of the Video Recordings Act 1984

(the 1984 Act; see below para. 33) as

      "the authority responsible for making arrangements

      (a)  for determining, for the purposes of (the) Act whether or

           not video works are suitable for classification

           certificates to be issued in respect of them, having

           special regard to the likelihood of video works in respect

           of which such certificates have been issued being viewed in

           the home

      (b)  in the case of works which are determined in accordance

           with the arrangements to be so suitable -

           (i)   for making such other determinations as are required

                 for the issue of classification certificates, and

           (ii)  for issuing such certificates ...".

23.   The applicant submitted the video to the Board in order that it

might lawfully be sold, hired out or otherwise supplied to the general

public or a section thereof.

24.   The Board rejected the application for a classification

certificate on 18 September 1989 in the following terms:

      "Further to your application for a classification certificate for

      the above video work, you are already aware that under the Video

      Recordings Act 1984 the Board must determine first of all whether

      or not a video work is suitable for such a certificate to be

      issued to it, having special regard to the likelihood of video

      works being viewed in the home.  In making this judgment, the

      Board must have regard to the Home Secretary's Letter of

      Designation in which we are enjoined to 'continue to seek to

      avoid classifying works which are obscene within the meaning of

      the Obscene Publications Acts 1959 and 1964 or which infringe

      other provisions of the criminal law.'

      Amongst these provisions is the criminal law of blasphemy, as

      tested recently in the House of Lords in R v. Lemon (1979),

      commonly known as the 'Gay News' case.  The definition of

      blasphemy cited therein is 'any contemptuous, reviling,

      scurrilous or ludicrous matter relating to God, Jesus Christ or

      the Bible ...  It is not blasphemous to speak or publish opinions

      hostile to the Christian religion' if the publication is 'decent

      and temperate'.  The question is not one of the matter expressed,

      but of its manner, i.e. 'the tone, style and spirit', in which

      it is presented.

      The video work submitted by you depicts the mingling of religious

      ecstasy and sexual passion, a matter which may be of legitimate

      concern to the artist.  It becomes subject to the law of

      blasphemy, however, if the manner of its presentation is bound

      to give rise to outrage at the unacceptable treatment of a sacred

      subject.  Because the wounded body of the crucified Christ is

      presented solely as the focus of, and at certain moments a

      participant in, the erotic desire of St. Teresa, with no attempt

      to explore the meaning of the imagery beyond engaging the viewer

      in an erotic experience, it is the Board's view, and that of its

      legal advisers, that a reasonable jury properly directed would

      find that the work infringes the criminal law of blasphemy.

      To summarise, it is not the case that the sexual imagery in

      VISIONS OF ECSTASY lies beyond the parameters of the '18'

      category; it is simply that for a major proportion of the work's

      duration that sexual imagery is focused on the figure of the

      crucified Christ.  If the male figure were not Christ, the

      problem would not arise.  Cuts of a fairly radical nature in the

      overt expressions of sexuality between St. Teresa and the Christ

      figure might be practicable, but I understand that you do not

      wish to attempt this course of action.  In consequence, we have

      concluded that it would not be suitable for a classification

      certificate to be issued to this video work."

25.   The applicant appealed against the Board's determination to the

Video Appeals Committee ("the VAC"), established pursuant to section

4(3) of the 1984 Act.  His Notice of Appeal, prepared by his legal

representatives at the time, contained the following grounds:

      "i)  that the Board was wrong to conclude that the video

           infringes the criminal law of blasphemy, and that a

           reasonable jury properly directed would so find.

      ii)  in particular, the appellant will contend that upon a

           proper understanding of the serious nature of the video as

           an artistic and imaginative interpretation of the 'ecstasy'

           or 'rapture' of the sixteenth century Carmelite nun,

           St. Teresa of Avila, it would not be taken by a reasonable

           person as contemptuous, reviling, scurrilous or ludicrous

           or otherwise disparaging in relation to God, Jesus Christ

           or the Bible.  The appeal will raise the question of mixed

           fact and law, namely whether publication of the video, even

           to a restricted degree, would contravene the existing

           criminal law of blasphemy."

26.   The Board submitted a formal reply to the VAC explaining its

decision in relation to its functions under section 4 of the 1984 Act:

      "The Act does not expressly set out the principles to be applied

      by the authority in determining whether or not a video work is

      suitable for a classification certificate to be issued in respect

      of it.  In these circumstances, the Board has exercised its

      discretion to formulate principles for classifying video works

      in a manner which it believes to be both reasonable and suited

      to carrying out the broad objectives of the Act.  Amongst these

      principles, the Board has concluded that an overriding test of

      suitability for classification is the determination that the

      video work in question does not infringe the criminal law.  In

      formulating and applying this principle, the Board has

      consistently had regard to the Home Secretary's Letter of

      Designation under the Video Recordings Act ...

      The Board has concluded on the advice of leading Counsel that the

      video work in question infringes the criminal law of blasphemy

      and that a reasonable jury properly directed on the law would

      convict accordingly.  The Board submits and is advised that in

      Britain the offence of blasphemy is committed if a video work

      treats a religious subject (in particular God, Jesus Christ or

      the Bible) in such a manner as to be calculated (that is, bound,

      not intended) to outrage those who have an understanding of,

      sympathy towards and support for the Christian story and ethic,

      because of the contemptuous, reviling, insulting, scurrilous or

      ludicrous tone, style and spirit in which the subject is

      presented.

      The video work under appeal purports to depict the erotic

      fantasies of a character described in the credits as St. Teresa

      of Avila.  The 14 minute second section of the video work

      portrays 'St. Teresa' having an erotic fantasy involving the

      crucified figure of Christ, and also a Lesbian erotic fantasy

      involving the 'Psyche of St. Teresa'.  No attempt is made to

      place what is shown in any historical, religious or dramatic

      context: the figures of St. Teresa and her psyche are both

      clearly modern in appearance and the erotic images are

      accompanied by a rock music backing.  The work contains no

      dialogue or evidence of an interest in exploring the psychology

      or even the sexuality of the character purporting to be St.

      Teresa of Avila.  Instead, this character and her supposed

      fantasies about lesbianism and the body and blood of Christ are

      presented as the occasion for a series of erotic images of a kind

      familiar from 'soft-core' pornography.

      In support of its contentions, the Board refers to an interview

      given by the appellant and published in 'Midweek' magazine on

      14 September 1989.  In this interview, the appellant attempts to

      draw a distinction between pornography and 'erotica', denying

      that the video work in question is pornograhic but stating that

      'all my own work is actually erotica.'  Further on, the

      interviewer comments:

           'In many ways, though, Visions calls upon the standard

           lexicon of lust found in down market porn: nuns,

           lesbianism, women tied up ("Gay nuns in bondage" could have

           been an alternative title in fact). 

           flashes a wicked grin.  'That's right, and I'm not denying

           it.  I don't know what it is about nuns, it's the same sort

           of thing as white stocking tops I suppose.'  So why does he

           not consider Visions to be pornography, or at least soft

           porn?  'I hope it is gentler, subtler than that.  I suppose

           most people think pornography shows the sex act, and this

           doesn't.'

      It is clear from the Appellant's own admissions that, whether or

      not the video work can rightly be described as pornographic, it

      is solely erotic in content, and it focuses this erotic imagery

      for much of its duration on the body and blood of Christ, who is

      even shown to respond to the sexual attentions of the principal

      character.  Moreover, the manner in which such imagery is treated

      places the focus of the work less on the erotic feelings of the

      character than on those of the audience, which is the primary

      function of pornography whether or not it shows the sex act

      explicitly.  Because there is no attempt, in the Board's view,

      to explore the meaning of the imagery beyond engaging the viewer

      in a voyeuristic erotic experience, the Board considers that the

      public distribution of such a video work would outrage and insult

      the feelings of believing Christians.  It is impossible therefore

      to accept the Appellant's contention in his Notice to Appeal ...

      The Board ... submits that the appeal should be dismissed and its

      determination upheld."

27.   The applicant then made further representations to the VAC,

stating inter alia:

      "The definition of the offence of blasphemy set out in ... the

      reply is too wide, being significantly wider than the test

      approved in the only modern authority - see Lemon & Gay News Ltd

      v. Whitehouse (1979) AC 617, per Lord Scarman at p. 665.  For

      example, there is no uniform law of blasphemy in Britain; the

      last recorded prosecution for blasphemy under the law of Scotland

      was in 1843 - see Thos Paterson (1843) I Brown 629.  Nor is any

      religious subject protected - the reviling matter must be in

      relation to God, Jesus Christ or the Bible, or the formularies

      of the Church of England as by law established.

      In the Appellant's contention, these limitations are of the

      utmost significance in this case since the video is not concerned

      with anything which God or Jesus Christ did, or thought or might

      have approved of.  It is about the erotic visions and imaginings

      of a 16th Century Carmelite nun -  namely St. Teresa of Avila.

      It is quite plain that the Christ figure exists in her fantasy

      as the Board expressly accepts ...  The scurrilous and/or erotic

      treatment of religious subject matter has received the Board's

      classification without attempted prosecution in recent years, eg

      Monty Python's 'Life of Brian' and Mr. Scorsese's 'Last

      Temptation of Christ'.

      ...  The Board argues that the video is purely erotic or 'soft-

      core' pornographic, without historical, religious, dramatic or

      other artistic merit.  The implication is that, had it possessed

      such merit the Board's decision might very well have been

      otherwise. The Appellant will seek to argue and call evidence to

      the effect that the video work is a serious treatment of the

      subject of the ecstatic raptures of St. Teresa (well chronicled

      in her own works and those of commentators) from a twentieth

      century point of view.

      The so-called 'rock music backing' was in fact specially

      commissioned from the respected composer, Steven Severin, after

      discussion of the Director's desired artistic and emotional

      impact.  The Board has based its decision upon the narrowest,

      most disparaging, critical appreciation of the work.  The

      Appellant will contend that a very much more favourable

      assessment of his aims and achievement in making 'Visions of

      Ecstasy' is, at the very least, tenable and that the Board ought

      not to refuse a certificate on a mere matter of interpretation.

      The Appellant takes objection to the Board's quotation ... of

      comments attributed to him from an article by one Rob Ryan

      published in 'Midweek' magazine 14 September 1989.  The remarks

      are pure hearsay so far as the Board is concerned.  That aside,

      the piece quoted is in large part the comments of the author of

      the article.  An entirely misleading impression of what the

      Appellant said to the author is conveyed by the interpolation of

      the words attributed to him, and by taking this passage out of

      context.

      Above all, the Appellant disputes the key assertion by the Board

      that the video work is solely erotic in content."

28.   The appeal was heard by a five member Panel of the VAC ("the

Panel") on 6 and 7 December 1989; oral and affidavit evidence was

submitted.  By a majority of three to two, a written decision was given

on 23 December 1989.  The Panel also considered itself bound by the

criteria set out in the designation notice (para. 33 below).  It had

difficulty, however, in ascertaining and applying the present law of

blasphemy.  It commented as follows:

      "The authorities on this Common Law offence were reviewed by the

      House of Lords in the case of Lemon and Gay News Ltd v.

      Whitehouse which concerned a magazine called 'Gay News', the

      readership of which consisted mainly of homosexuals although it

      was on sale to the general public at some bookstalls.  One

      edition contained a poem entitled 'The Love that Dares to Speak

      its Name' accompanied by a drawing illustrating its subject

      matter.

      In his judgment Lord Scarman said that it was unnecessary to

      speculate whether an outraged Christian would feel provoked by

      the words and illustration to commit a breach of the peace, the

      true test being whether the words are calculated to outrage and

      insult the Christian's religious feelings, the material in

      question being contemptuous, reviling, scurrilous or ludicrous

      matter relating to God, Jesus Christ, or the Bible or the

      formularies of the Church of England.  It should perhaps be added

      that the word 'calculated' should be read in the dictionary sense

      of 'estimated' or 'likely' as it was decided that intent (other

      than an intent to publish) is not an element in the offence.

      In the same case Lord Diplock said that the material must be

      'likely to arouse a sense of outrage among those who believe in

      or respect the Christian faith'.

      In the present case the Board's Director ... said in evidence

      that the Board's view was that the video was 'contemptuous of the

      divinity of Christ'.  He added that although the Board's decision

      was based upon its view that the video is blasphemous (blasphemy

      being an offence which relates only to the Christian religion),

      it would take just the same stance if it were asked to grant a

      Certificate to a video which, for instance, was contemptuous of

      Mohammed or Buddha."

29.   The Panel reviewed the contents of the video and accepted that

the applicant had in mind St. Teresa, a nun, "who is known to have had

ecstatic visions of Christ although, incidentally, these did not start

until she was 39 years of age - in marked contrast to the obvious

youthfulness of the actress who plays the part."

30.   The Panel held as follows:

      "From the writings of St. Teresa herself, and the subsequent

      writings of others, there seems no reason to doubt that some of

      her visions were of seeing the glorified body of Christ and being

      shown his wounds but, even so, it seems clear that (the

      appellant) has taken considerable artistic licence with his

      subject.  Apart from the age discrepancy - a comparatively minor

      matter - we were made aware of nothing which would suggest that

      Teresa ever did anything to injure her hand or that any element

      of lesbianism ever entered into her visions.  More importantly,

      there seems nothing to suggest that Teresa, in her visions, ever

      saw herself as being in any bodily contact with the glorified

      Christ.  As one author, Mr. Stephen Clissold, puts it 'Teresa

      experienced ecstasy as a form of prayer in which she herself

      played almost no part'.  So, in view of the extent of the

      artistic licence, we think it would be reasonable to look upon

      the video as centering upon any nun of any century who, like many

      others down the ages, had ecstatic visions.  There is also

      another reason for taking this stance:  unless the viewer happens

      to read the cast list which appears on the screen for a few

      seconds, he or she has no means of knowing that the nun is

      supposed to be St. Teresa, nor that the figure of the second

      woman is supposed to be her Psyche.  And he or she in any event

      may well be unaware that Teresa was a real-life nun who had

      ecstatic visions.

      It is true that (the appellant) says that it is intended that the

      sleeve or jacket for the video will provide 'basic historical

      information to assist the viewer', but we feel bound to regard

      this as irrelevant.  Firstly because it by no means follows that

      every viewer will read any such description; and secondly because

      the Board's and the Appeal Panel's decision must be based solely

      upon the video itself, quite apart from the fact that at the time

      of making a decision the sleeve or jacket is usually - as in the

      present instance - not even in existence.

      However, although we have thought it proper to dwell at some

      length with the 'St. Teresa' aspect, we are of the opinion that

      in practice, when considering whether or not the video is

      blasphemous, it makes little or no difference whether one looks

      upon the central character as being St. Teresa or any other nun.

      The appellant, in his written statement, lays stress upon the

      undoubted fact that the whole of the second half consists of

      Teresa's vision or dream.  Hence he says the video says nothing

      about Christ, his figure being used only as a projection of St.

      Teresa's mind, nor was it his intention to make that figure an

      active participant in any overt sexual act.  He goes on to say

      'Rather the very mild responses are those of St. Teresa's

      conjecture: the kiss, hand clasp and ultimately the tears of

      Christ.  To show no response to a creation of her own mind would

      be nonsense; no woman (nor man) whose deep love could cause such

      visions/ecstasies would imagine the object of that love coldly

      to ignore their caresses'.  Although we quite appreciate the

      logic of this point of view, we have reservations about the

      extent to which a vision or dream sequence  can affect the

      question of whether what is pictured or said is blasphemous.  It

      would, for instance, be possible to produce a film or video which

      was most extremely contemptuous, reviling, scurrilous or

      ludicrous in relation to Christ, all dressed up in the context

      of someone's imaginings.  In such circumstances we find it hard

      to envisage that, by such a simple device, it could reasonably

      be said that no offence had been committed.  If in our opinion

      the viewer, after making proper allowance for the scene being in

      the form of a dream, nevertheless reasonably feels that it would

      cause a sense of outrage and insult to a Christian's feelings,

      the offence would be established.

      We should perhaps also deal, albeit briefly, with a further

      submission made on behalf of the appellant, namely that the crime

      of blasphemy may extend only to the written or spoken word and

      hence that a Court might rule that no film or video, and perhaps

      nothing shown on television, could become the subject of such a

      charge.  Suffice it to say that in our view this is too unlikely

      to cause it to be taken into account by the Board or a panel of

      the Appeals Committee when reaching a decision.

      In the opinion of a majority of the Panel the video did not, as

      the appellant claims, explore St. Teresa's struggles against her

      visions but exploited a devotion to Christ in purely carnal

      terms.  Furthermore they considered that it lacked the

      seriousness and depth of 'The Last Temptation of Christ' with

      which Counsel for the appellant sought to compare it.  Indeed the

      majority took the view that the video's message was that the nun

      was moved not by religious ecstasy but rather by sexual ecstasy,

      this ecstasy being of a perverse kind - full of images of blood,

      sado-masochism, lesbianism (or perhaps auto-erotism) and bondage.

      Although there was evidence of some element of repressed

      sexuality in St. Teresa's devotion to Christ, they did not

      consider that this gave any ground for portraying her as taking

      the initiative in indulged sexuality.  They considered the over-

      all tone and spirit of the video to be indecent and had little

      doubt that all the above factors, coupled with the motions of the

      nun whilst astride the body of Christ and the response to her

      kisses and the intertwining of the fingers would outrage the

      feelings of Christians, who would reasonably look upon it as

      being contemptuous of the divinity of Christ.  In these

      circumstances the majority were satisfied that the video is

      blasphemous, that a reasonable and properly directed jury would

      be likely to convict and therefore that the Board was right to

      refuse to grant a Certificate.  Hence this appeal is accordingly

      dismissed.

      It should perhaps be added that the minority on the Panel, whilst

      being in no doubt that many people would find the video to be

      extremely distasteful, would have allowed the appeal because in

      their view it is unlikely that a reasonable and properly directed

      jury would convict."

31.   As a result of the Board's determination, as upheld by the Panel,

the applicant would commit an offence under section 9 of the 1984 Act

if he were to supply the video in any manner, whether or not for

reward. The applicant received legal advice that his case was not

suitable for judicial review (cf. paras. 38-39 below).

B.    Relevant domestic law

1.    The regulation of video recordings

32.   The Video Recordings Act 1984 (the 1984 Act) regulates the

distribution of video recordings.  Subject to certain exemptions, it

is an offence under section 9(1) of that Act for a person to supply or

offer to supply a video recording containing a video work in respect

of which no classification certificate has been issued. There are three

categories of classification: works deemed suitable for general viewing

(and to which a parental guidance reference may be added), works for

which the viewing is restricted to people who have attained the age of

18, and works which may only be supplied by licensed sex shops (section

7). The Secretary of State may require that the contents of certain

works be labelled (section 8). It is an offence to ignore such

conditions, for example by supplying someone under 18 years of age with

an "18" classified work (section 11).

33.   Under section 4(1) of the 1984 Act the Secretary of State may by

notice designate any person or body as the authority for making

arrangements for determining whether or not video works are suitable

for classification certificates to be issued in respect of them (having

special regard to the likelihood of certified video works being viewed

in the home).  By a notice dated 26 July 1985 the British Board of Film

Classification ("the Board") was so designated.  In the case of works

which are determined in accordance with the arrangements described

above to be suitable for classification certificates, the Board is

responsible under section 4(1) for making arrangements for the issue

of certificates and making other determinations relating to their use

(see pp.4-5 above).  The Secretary of State's notice enjoined the Board

"to continue to seek to avoid classifying works which are obscene

within the meaning of the Obscene Publications Acts 1959 and 1964 or

which infringe other provisions of the criminal law".

34.   Pursuant to section 4(3) of the 1984 Act arrangements were made

for the establishment of the Video Appeals Committee to determine

appeals against decisions of the Board.

2.    The law relating to blasphemy and blasphemous libel

35.   Blasphemy and blasphemous libel are common law offences triable

on indictment and punishable by fine or imprisonment.  Blasphemy

consists in speaking and blasphemous libel in otherwise publishing

blasphemous matter.  Libel involves a publication in a permanent form,

but that form may consist of moving pictures.

36.   In the case of Whitehouse v. Gay News Ltd. and Lemon [1979] A.C.

617 at 665 which concerned the law of blasphemy in England and Wales,

Lord Scarman held that the modern law of blasphemy was correctly

formulated in article 214 of Stephen's Digest of the Criminal Law, 9th

ed. (1950).  This states as follows:

      "Every publication is said to be blasphemous which contains any

      contemptuous, reviling, scurrilous or ludicrous matter relating

      to God, Jesus Christ or the Bible, or the formularies of the

      Church of England as by law established.  It is not blasphemous

      to speak or publish opinions hostile to the Christian religion,

      or to deny the existence of God, if the publication is couched

      in decent and temperate language.  The test to be applied is as

      to the manner in which the doctrines are advocated and not to the

      substance of the doctrines themselves."

37.   The House of Lords in that case also decided that the mental

element in the offence did not depend upon the accused having an intent

to blaspheme.  It was sufficient for the prosecution to prove that the

publication had been intentional and that the matter published was

blasphemous.

3.    The availability of judicial review as a remedy

38.   Decisions of public bodies which have consequences which affect

some person or body of persons are susceptible to challenge in the High

Court on an application for judicial review. Amongst the grounds on

which such a challenge may be brought is that the body in question

misdirected itself on a point of law.  The Video Appeals Committee is

such a public body because it is established pursuant to an Act of

Parliament (namely, section 4(3) of the 1984 Act).  Furthermore, its

decisions affect the rights of persons who make video works because

confirmation of a decision that a video work cannot receive a

classification certificate would mean that video recordings of that

work could not be lawfully supplied to members of the public.

39.   A court would not normally look on an application for judicial

review at the merits of any decision made by such a body, except where

the decision was so unreasonable that no reasonable body, properly

instructed, could have reached it.  However, where the decision is

based on a point of law and it is alleged that the body has misdirected

itself on that point, the decision could be challenged by an

application for judicial review.  In the case of C.C.S.U. v. Minister

for the Civil Service [1984] 3 All E.R. at p. 950, a decision of the

House of Lords, Lord Diplock classified under three heads the grounds

on which administrative action is subject to control by judicial

review.  He called the first ground "illegality" and described it as

follows:

      "By 'illegality' as a ground for judicial review I mean that the

      decision-maker must understand correctly the law that regulates

      his decision-making power and must give effect to it.  Whether

      he has or not is par excellence a justiciable question to be

      decided, in the event of a dispute, by those persons, the judges,

      by whom the judicial power of the State is exercisable."

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

40.   The Commission has declared admissible the applicant's complaint

that the refusal of a classification certificate for his video film,

"Visions of Ecstasy" was in breach of his freedom of expression.

B.    Point at issue

41.   The point at issue in the present case is whether there has been

a violation of Article 10 (Art. 10) of the Convention.

C.    As regards Article 10 (Art. 10) of the Convention

42.   The relevant part of Article 10 (Art. 10) of the Convention

provides 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 ... for the protection

      of the ... rights of others ...".

(a)   Interference with freedom of expression

43.   It is undisputed by the parties, and the Commission agrees, that

the refusal of a classification certificate for the applicant's film

constituted an interference with his freedom of expression, in

particular his freedom to impart information and ideas, as envisaged

by Article 10 para. 1 (Art. 10-1) of the Convention.

(b)   Prescribed by law

44.   The applicant contends that this interference with his freedom

of expression was not prescribed by law because the offences of

blasphemy or blasphemous libel, of which his video was deemed to fall

foul, are not sufficiently accessible or precise. The Government submit

that the interference with the applicant's freedom of expression was

prescribed by law, given the lawful authority conferred on the British

Board of Film Classification by section 4(1) of the Video Recording Act

1984, combined with the Secretary of State's designation notice to the

Board which, inter alia, directed it to avoid issuing classification

certificates in respect of obscene or other work infringing the

criminal law (see para. 33 above).

45.   The Commission recalls that any interference with freedom of

expression must be prescribed by law.  The word "law" in the expression

"prescribed by law" covers not only statute but also unwritten law such

as the English common law.  Accordingly, the Commission does not attach

importance here to the fact that the criminal law of blasphemy and

blasphemous libel are creatures of the common law and not statute law.

46.   Two requirements flow from the expression "prescribed by law":

those of the adequate accessibility and foreseeability of law, to

enable the individual to regulate his conduct in the light of the

foreseeable consequences of a given action (Eur. Court H.R., Sunday

Times judgment of 26 April 1979, Series A no. 30, pp. 30-31,

paras. 47-49). The central question, therefore, is whether the common

law on blasphemy and blasphemous libel is sufficiently accessible and

forseeable.

47.   The Commission recalls a previous decision in the case of X and

Y Ltd v. the United Kingdom, commonly known as the Gay News case

(No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77), that the law of blasphemy,

as defined by the House of Lords at that time, was sufficiently

accessible and forseeable so as to satisfy the requirement that any

restriction on freedom of expression must be prescribed by law within

the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.  The

Commission finds no distinguishable elements in the present case to

detract from that conclusion, the common law in this field not having

materially changed since then.

48.   Moreover, the Commission notes that the British Board of Film

Classification has lawful authority to issue or refuse classification

certificates under section 4 of the Video Recordings Act 1984.  The

discretion conferred on the Board by this Act is, as the Government

pointed out, partly circumscribed by the Secretary of State's

designation notice of 26 July 1985 in which the Board was directed to

refuse certificates in respect of video works which in any respect

infringe the criminal law.  The law of blasphemy falls into this

category.  Finally, the Commission notes the considerable legal advice

that was available to the applicant.

49.   In the circumstances of the present case, the Commission is of

the view that the applicant could reasonably have foreseen the

restrictions to which his video work was liable.  Accordingly, the

Commission considers that the refusal of a classification video to the

applicant was prescribed by law within the meaning of Article 10

para. 2 (Art. 10-2) of the Convention.

(c)   Legitimate aim

50.   The applicant submits that the refusal of a classification

certificate in his case did not pursue a legitimate aim. He challenges

the very basis of the law of blasphemy as being vague and

discriminatory. He maintains that protecting a section of the

population from offence at the mere thought that a work of art of the

present kind might become available to another section of the

population could not be deemed legitimate.  The Government contend that

the refusal of a classification certificate in the present case pursued

the legitimate aim of protecting the rights of others, within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention, not to be

offended in their religious feelings by the showing of the video.

51.   The Commission recalls that interference with freedom of

expression may only be justified if it pursues a legitimate aim, such

as the protection of the rights of others, within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.  In the Gay News case

(already referred to at para. 46 above) the Commission held that

      "the offence of blasphemous libel as it is construed under the

      applicable common law in fact has the main purpose to protect the

      right of citizens not to be offended in their religious feelings

      by publications ...  The Commission therefore concludes that the

      restriction was indeed covered by the legitimate purpose

      recognised in the Convention, namely the protection of the rights

      of others."

52.   The Commission also refers to the case-law of the European Court

of Human Rights in this context: The Court has emphasised the

primordial place in a democratic society of freedom of thought,

conscience and religion, safeguarded by Article 9 (Art. 9) of the

Convention (Eur. Court H.R., Kokkinakis judgment of 25 May 1993,

Series A no. 260, p. 17, para. 31). Religious believers cannot expect

to be exempt from all criticism and must tolerate the denial by others

of their beliefs. However, the State has a responsibility to ensure the

peaceful enjoyment of believers' rights under Article 9 (Art. 9). In

this connection, a State may legitimately take measures against conduct

which is incompatible with this provision. Such measures may include

sanctioning provocative portrayals of objects of religious veneration,

which portrayals may be regarded as a malicious violation of the spirit

of tolerance inherent in democratic societies. Moreover, "the

Convention is to be read as a whole and therefore the interpretation

and application of Article 10 (Art. 10) must be in harmony with the

logic of the Convention" (Eur. Court H.R., Otto-Preminger Institut

judgment of 20 September 1994, Series A no. 295-A, para. 47).

53.   The Commission finds no reason to depart from this case-law,

despite the element of prior restraint which is a striking feature of

the present case.  The English law of blasphemy is intended to suppress

behaviour directed against objects of religious veneration that is

likely to cause justified indignation amongst believing Christians. It

follows that the indirect application of this law in the present case

was intended to protect the right of citizens not to be insulted in

their religious feelings (cf. the aforementioned Otto-Preminger

Institut judgment para. 51). Accordingly, the Commission is of the view

that the refusal of a classification certificate for the applicant's

video because it was deemed blasphemous, in principle, pursued the

legitimate aim of protecting the rights of others within the meaning

of Article 10 para. 2 (Art. 10-2) of the Convention.

(d)   Necessary in a democratic society

54.   The key issue in the present case is whether it was necessary to

refuse the classification certificate.

55.   The applicant claims that the refusal was not necessary and

asserts that the censorship of his video film on the basis of a mere

possibility that it might infringe the law of blasphemy was wholly

disproportionate in the circumstances. The Government maintain that the

refusal was indeed necessary and fell well within the margin of

appreciation afforded to Contracting States in this field.

      i. General principles

56.   The Commission recalls the following general principles

established by the Convention organs under Article 10 (Art. 10) of the

Convention:

57.   Freedom of expression constitutes one of the essential

foundations of a democratic society. Subject to paragraph 2 of

Article 10 (Art. 10-2), it is applicable not only to information or

ideas that are favourably received or regarded as inoffensive or as a

matter of indifference, but also to those that offend, shock or

disturb.  Freedom of expression is subject to a number of exceptions

which, however, must be narrowly interpreted and the necessity for any

restrictions must be convincingly established. This implies the

existence of a pressing social need, although the Contracting States

have a certain margin of appreciation in assessing whether such a need

exists. This margin is subject to the supervision of the Convention

organs, which look at the interference complained of in the light of

the case as a whole and determine whether it was proportionate to the

legitimate aim pursued (Eur. Court H.R., Observer and Guardian judgment

of 26 November 1991, Series A no. 216, p. 30, para. 59).

58.   Prior restraints, such as the need for a classification

certificate before a video film may be released on sale, are not, in

themselves, incompatible with Article 10 (Art. ) of the Convention.

However, the dangers inherent in prior restraints are such that they

call for the most careful scrutiny on the part of the Convention organs

(ibid. para. 60).

59.   The Court has emphasised that people "who create, perform,

distribute or exhibit works of art contribute to the exchange of ideas

and opinions which is essential for a democratic society".

Nevertheless Article 10 para. 2 (Art. 10-2) of the Convention calls

upon them to exercise their freedom of expression in the light of their

"duties and responsibilities" (Eur. Court H.R., Müller and Others

judgment of 24 May 1988, Series A no. 133, p. 22, paras. 33-34).

60.   Such duties and responsibilities, in the context of religious

opinions and beliefs, may legitimately include "an obligation to avoid

as far as possible expressions that are gratuitously offensive to

others and thus an infringement of their rights, and which therefore

do not contribute to any form of public debate capable of furthering

progress in human affairs." Nevertheless, any sanction or prevention

of improper attacks on objects of religious veneration must be

proportionate to the legitimate aim pursued, account being taken of the

States' margin of appreciation in such a controversial area in which

no common European standard exists (Otto-Preminger Institut judgment,

paras. 49-50).

61.   The Commission also recalls its decision in the aforementioned

Gay News case (para. 47 above) that the private prosecution, conviction

and fine for blasphemous libel after the publication in a magazine of

an illustrated poem purporting to describe, inter alia, in explicit

details acts of sodomy and fellation with the body of Christ

immediately after His death, was a justified interference with the

freedom of expression of those applicants:

      "12. ... the Commission first observes that the existence of an

      offence of blasphemy does not as such raise any doubts as to its

      necessity: If it is accepted that the religious feelings of the

      citizen may deserve protection against indecent attacks on the

      matters held sacred by him, then it can also be considered as

      necessary in a democratic society to stipulate that such attacks,

      if they attain a certain level of severity, shall constitute a

      criminal offence triable at the request of the offended person.

      It is in principle left to the legislation of the State concerned

      how it wishes to define the offence, provided that the principle

      of proportionality, which is inherent in the exception clause of

      Article 10 (2) (Art. 10-2), is being respected. The Commission

      considers that the offence of blasphemous libel as laid down in

      the common law of England in fact satisfies these criteria. In

      particular it does not seem disproportionate to the aim pursued

      that the offence is one of strict liability incurred irrespective

      of the intention to blaspheme and irrespective of the intended

      audience and of the possible avoidability of the publication by

      a certain member of the public. The issue of the applicants'

      journal containing the incriminated poem was on sale to the

      general public, it happened to get known in some way or other to

      the private prosecutor who was so deeply offended that she

      decided to take proceedings against the publication of this poem,

      and the outcome of these proceedings showed that not only the

      private prosecutor herself, but also the judicial authorities of

      all degrees were convinced of its blasphemous nature. The

      Commission therefore considers that the application of the

      blasphemy law could be considered as necessary in the

      circumstances of this case. The applicants' complaint that it was

      not necessary and therefore contrary to Article 10 (2) (Art. 10-

      2) of the Convention is therefore again manifestly ill-founded

      within the meaning of Article 27 (2) (Art. 27-2) of the

      Convention" (No. 8710/79, X Ltd. and Y v. the United Kingdom,

      Dec. 7.5.82, D.R. 28 p. 77 at p. 83).

62.   An important element of the Commission's examination of this type

of case is whether the offending material is on open display to the

general public. In a case concerning the discreet showing of obscene

homosexual films at the back of a specialised shop, the Commission

formed the view that the conviction of the shopowner for publishing

obscene material was a disproportionate interference with his freedom

of expression, in violation of Article 10 (Art. 10) of the Convention,

because there was no danger of adults being confronted unwillingly with

the film.  Nor was there any question of minors having access to it

(Eur. Court H.R., Scherer judgment of 25 March 1994, Series A no. 287,

Opinion of the Commission, pp. 18-20, paras. 57-67).

      ii. Application of the above principles

63.   The Commission must now examine whether, in the light of the

general principles outlined above, the restriction imposed in the

present case was necessary in a democratic society.

64.   The Commission notes, on the one hand, that it was a unanimous

Board of Film Classification and a majority of the Video Appeals

Committee who viewed the applicant's work, heard the evidence, and

concluded that the video was likely to outrage the feelings of

believing Christians.  Moreover, the Board was prepared to issue a

certificate if the applicant made cuts in the overt expressions of

sexuality between St. Teresa and the Christ figure - something that the

applicant was not willing to contemplate.

65.   On the other hand, the Commission notes that, given the prior

censorship of the applicant's work, particularly compelling reasons are

required to justify restrictions based on speculation by the competent

authorities that a section of the population might be outraged. In this

connection the Commission would emphasise that the assessment by the

classification authorities was untested by a jury or court.

66.   However, the Commission does not find such compelling reasons in

the present case for the following reasons: The applicant's film is a

video, not a feature film.  Moreover, it is of unusually short length

and the fleeting parts of it which were deemed blasphemous were much

less prominent than those criticised in the film "Council in Heaven",

which was at the heart of the dispute in the Otto-Preminger Institut

case (reference para. 52 above). The distribution of the applicant's

film would, therefore, necessarily be more limited and less likely to

attract publicity.

67.   It is unlikely that the contents of the applicant's video would

be on display to the general public to the extent of, for example, the

offending pictures in the Müller and Gay News cases (references paras.

58 and 60 above) or the film in the Otto-Preminger Institut case.  It

is also unlikely that members of the public could unintentionally find

themselves viewing the video in the same way as they might walk into

an art gallery or cinema, or browse through magazines.  A person would

have to make a conscious decision to view the applicant's video, and

it is at least unlikely, having regard to the title and the fact that

it was intended to label the video's contents, that it would have been

seen by anyone who was unaware of the probable subject matter of the

film.

68.   The fact that certain Christians, who had heard of the existence

of the video, might be outraged by the thought that such a film was on

public sale and available to those who wished to see it, cannot, in the

view of the Commission, amount to a sufficiently compelling reason to

prohibit its lawful supply. Moreover, the Board of Film Classification

could have restricted the circulation of the video even more by giving

it an "18" certificate, which would have limited its viewing to people

over the age of 18.

69.   In these circumstances the Commission is of the opinion that the

refusal of a classification certificate for the applicant's video film

did not correspond to a pressing social need.  It considers that the

interference with the applicant's freedom of expression was

disproportionate to the aim pursued and could not be considered

necessary in a democratic society within the meaning of Article 10

para. 2 (Art. 10-2) of the Convention.

      CONCLUSION

70.   The Commission concludes, by 14 votes to 2, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention.

Secretary to the Commission          Acting President of the Commission

       (H.C. KRÜGER)                            (C.L. ROZAKIS)

                                                        (Or. English)

                  CONCURRING OPINION OF MR. SCHERMERS

      I agree with the conclusion of the majority of the Commission

that there was a breach of Article 10 of the Convention in the present

case, but I do not entirely agree with their reasoning.

      The majority have distinguished the case from that of the Otto

Preminger Institute (Eur. Court H.R., Otto-Preminger Institut judgment

of 20 September 1994, to be published in Series A no. 295-A) on the

grounds that, unlike the film "Council in Heaven" which was at issue

there, the present case concerns a video, which is very short, and

whose offending elements were less prominent (para. 66 of the

Commission's Report).  In my opinion there is another reason why the

prohibition of the film "Council of Heaven" was justified, whilst the

prohibition of the present video is not.

      In the "Council of Heaven", "God the Father is presented both in

image and in text as a senile, impotent idiot, Christ as a cretin and

Mary Mother of God as a wanton lady with a corresponding manner of

expression and in which the Eucharist is ridiculed" (Otto-Preminger

Institute judgment, para. 16).  Someone who does not believe in God,

Christ, Mary or the Eucharist has no grounds for conveying an opinion

about them to others, except the opinion that they do not exist. The

portrayal of the image that they do exist in a senile, impotent or

cretinous way can only be inspired by a wish to ridicule the faith of

others; there was no expression of the faith or non-faith of the

authors themselves.  Therefore, by implication, the European Court of

Human Rights characterised that film as "gratuitously offensive to

others" and not contributing "to any form of public debate capable of

furthering progress in human affairs" (ibid, para. 49).

      The facts of the present case are different:  The applicant tries

to picture "ecstasy".  In his opinion ecstasy has an element of

sexuality in it.  In the video he therefore combines religious ecstasy

with sexual elements for the purpose of expressing "ecstasy", not in

order to hurt or to ridicule others.  The element of gratuitousness

which was inherent in the "Council of Heaven" film was not present

here.  Unlike the author of the "Council of Heaven", the present author

tries to contribute to a form of public debate in order to further

progress in understanding the notion of "ecstasy".

      These latter elements, more than those put forward by the

majority of the Commission, persuade me that the present case can

clearly be distinguished from that of the Otto Preminger Institute, and

to conclude that Article 10 has been violated.

                                                        (Or. English)

                  CONCURRING OPINION OF MR. LOUCAIDES

      I agree with the majority of the Commission that there has been

a breach of Article 10 of the Convention in the present case, but I

would like to add the following:

      Together with the factors set out in the above Report of the

Commission, I have also given weight to the theme of the film, which

referred to the real story of St. Teresa, who had visions of erotic

experiences with Christ. Taking into account the theme and its

presentation as a whole, I formed the opinion that the film portrayed

the human problems of St. Teresa rather than an offensive or degrading

image of Christ.

      My conclusion is that the film cannot be deemed offensive to

others or in need of censorship.

                                                         (Or. French)

                    OPINION DISSIDENTE DE M. SOYER

               A LAQUELLE DECLARE SE RALLIER M. WEITZEL

1.    Dans son arrêt Otto Preminger (par. 49), la Cour européenne des

Droits de l'Homme affirme : «on peut juger nécessaire, dans certaines

sociétés démocratiques, de sanctionner, voire de prévenir, des attaques

injurieuses contre des objets de vénération religieuse».

      La question qu'il convient de se poser est donc fort nette : la

vidéo «visions d'extase» (durée 18 minutes environ) contient-elle, ou

ne contient-elle pas, à propos d'objets de vénération religieuse (a),

des attaques injurieuses (b) ?

      (a)  Objets de vénération religieuse ?  La vidéo dépeint l'extase

sexuelle éprouvée par l'une des principales saintes (Thérèse d'Avila)

à la vue du Christ cloué sur sa croix.  Sainte-Thérèse, le Christ, la

Croix : nous sommes au coeur des adorations catholiques.

      (b)  Attaques injurieuses ?  Dans la première moitié de la vidéo,

telle que la décrit le rapport de la Commission (par. 20),

Sainte-Thérèse répand sur le sol un calice de vin destiné à la

communion, et le lèche.  Y a-t-il pire profanation ?  Dans la seconde

moitié de la vidéo, toujours d'après le rapport de la Commission (eod.

loc.) : «St. Theresa s'asseoit à côté du Christ, apparemment nue sous

son habit, secouée d'un mouvement qui traduit un éveil érotique

intense.  Elle baise ses lèvres.  Durant quelques secondes, il paraît

répondre à ses baisers ...».

      Le descriptif de la Commission montre qu'il s'agit là d'un

concentré de sacrilège.  Et dès lors, pour faire respecter le droit des

croyants à ne pas subir ce blasphème délibéré, comment s'y prendre, à

moins d'interdire la diffusion du document blasphématoire ?

2.    Dans son arrêt Otto Preminger, la Cour avait tenu pour justifiées

la saisie et la confiscation d'un film gravement attentatoire aux

croyances catholiques.  Or, quand on peut à bon droit saisir et

confisquer, pourquoi le refus de visa serait-il illicite ?

      Il fallait donc que la Commission, pour étayer son avis de

violation, parvienne à contourner le redoutable précédent de l'arrêt

Otto Preminger.  A cette fin, les arguments avancés par la Commission

témoignent d'une ingéniosité qu'il est juste de saluer, sans toutefois

en être dupe.

      En premier lieu, la Commission relève (par. 65 de son avis) que

l'interdiction de la vidéo résulte d'une décision prise par un organe

administratif et non pas judiciaire.  Mais il s'agit là d'une exigence

procédurale qui n'est aucunement formulée par l'article 10 de la

Convention.

      En deuxième lieu, la Commission relève (par. 66 de son avis)

qu'il ne s'agit pas ici d'un film, mais d'une vidéo de durée bien

moindre, dont la distribution, par conséquent, se trouve plus limitée

et donc plus discrète.   C'est là méconnaître les chiffres de diffusion

de vidéos, compte tenu de leur facilité de prêt et de duplication.

      En troisième lieu, la Commission relève (par. 67 de son avis) que

regarder une vidéo est un acte plus réfléchi que de se rendre au

cinéma.  Le nombre réduit des salles de cinéma, par rapport au nombre

immense des magnétoscopes, fonctionnant de plus à domicile et à tout

heure du jour ou de la nuit, pousse à penser le contraire.

      En dernier lieu, la Commission relève (par. 68 de son avis) qu'il

existait une alternative au refus complet de visa.  Cette alternative

aurait consisté dans un visa restreignant la vente de la vidéo

litigieuse aux plus de 18 ans.  Tel est le cas, dans maints pays, pour

les vidéos érotiques.  Or, de par l'abondance des copies et des

appareils de projection, les collégiens s'en procurent autant qu'ils

en désirent.

      Pour toutes ces raisons, la mesure prise à l'encontre du

requérant entrait bien dans la marge d'appréciation sans laquelle

l'Etat ne pourrait pas concilier, comme il en a le devoir, la liberté

d'expression des uns et la sensibilité religieuse d'une part importante

de la population.

      J'estime donc, au total, qu'il n'y a pas eu, dans la présente

espèce, violation de l'article 10 de la Convention.

                              APPENDIX I

                      HISTORY OF THE PROCEEDINGS

Date                        Item

_________________________________________________________________

18.06.90                    Introduction of application

13.11.90                    Registration of application

Examination of admissibility

07.04.92                    Commission's decision to communicate the

                            case to the respondent Government and to

                            invite the parties to submit observations

                            on admissibility and merits

24.07.92                    Government's observations

23.10.92                    Commission's grant of legal aid

18.12.92                    Applicant's observations in reply

10.03.93                    Further Government observations

10.05.93                    Applicant's further reply

11.05.93                    Commission's decision to hold a hearing

21.02.94                    Applicant's pre-hearing brief

08.03.94                    Hearing on admissibility and merits

08.03.94                    Commission's decision to declare

                            application admissible

Examination of the merits

18.03.94                    Decision on admissibility transmitted to

                            parties. Invitation to parties to submit

                            further observations on the merits

02.07.94                    Commission's consideration of state of

                            proceedings

03.12.94                    Commission's further consideration of state

                            of proceedings

10.01.95                    Commission's deliberations on the merits,

                            final vote and consideration of text of

                            the Report.  Adoption of Report

 

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