frsrdg · GV04JO1 · 2008-01-01 00:00:00 — The demonstration took the form of a stationary demonstration almost in the centre of the open area referred to as plattan. The demonstrators formed a tight circle and were holding up 45 placards with colour pictures of aborted foetuses. These pictures were about 120 centimetres broad and 100 centimetres high. On the ground there were carnations and mourning ribbons to symbolise some form of funeral. The pictures were very explicit and the bodies of the children with heads, arms, legs and fingers could clearly be seen. In the pictures it was also possi- ble to see how their bodies (stomachs) had been cut open. The pictures had been taken in a hospital setting. The permit holder, , had a megaphone and made various speeches. As the demonstration was being held in a way that made it impossi- ble for passers-by to avoid seeing the pictures I gained the impression that they could be offensive or unpleasant, for instance to children or women who had undergone abortions or sustained miscarriages. After consultation with the senior officer on duty, , I asked to remove the pictures. I explained to that the way the pictures were being displayed could give rise to offence, to which agreed declaring that this was the intention. I then explained to that the demonstration was not being terminated but could continue if they wanted it to and proposed that the pictures could be laid out on a table or something similar so that he could urge passers-by to come to take a look at them. But chose to pack everything away and discontinue the demonstration. Much of the discussion I had with was filmed by a cameraman accompanying to make a documentary. 2 007 /0 8:JO1 B I L A G A 10 provided the following information. On 2 2005 I, , was duty officer for the County of authority. At about 4.10 p.m., in my capacity as duty officer, I received a telephone call from the operational commander, . He described the circumstances at a demonstration against abortion for which a permit had been granted and which was taking place at . His report made it clear that the demonstrators were displaying large placards with photographs of aborted foetuses. One of the placards included the image of a foetus that had been cut in two. It could also be seen that a number of individuals passing by the demonstration had been extremely offended by the photographs. The demonstrators comprised about 10 individuals and the permit stated that banners/pictures were to be used. , on the basis of the information I received from Matilainen, that he was to contact the organiser of the demonstration. This was so that he could explain that it was unsuitable to display pictures of aborted foetuses and inform him that a number of people had found them offensive. However, there was nothing to stop the demonstration from continuing. It was left to Matilainen to decide whether any report was to be made about disorderly conduct. From the report on the event it can be seen that at 5.02 p.m. Matilainen in- structed the demonstrators to remove their placards. In the role of duty officer one is often called on to make decisions on criminal offences. The decisions made are often administrative and involve, for in- stance, the Aliens Act, the Act on Care of or armed rein- forcement. In this case I received a report from the operational commander, Mati- lainen. My decision was that Matilainen should contact the organiser to in- form him of the unsuitability of the pictures on display. I also informed Mati- lainen that there were no grounds for the demonstration not to be completed. No decision was made about removal of the pictures or dispersal of the dem- onstration. This can also be seen from my records of my contacts with Mati- lainen. It was up to Matilainen to decide whether to report any crime. Thereafter the decisions in this case were made by Matilainen, so that I cannot express any opinion about the reasons for them. However, from the report on the event it is clear that Matilainen never decided that the demon- stration was to be terminated. The decision made by Matilainen was that the pictures of the aborted foetuses were to be taken down. One reason for this can be that he was informed that the placards were disturbing public order at the scene and that continued display could lead to charges of disorderly con- duct. The permit for the demonstration states that banners/pictures were to be used during the demonstration. However the permit does not make it clear that the pictures were to depict enlarged images of aborted foetuses. The authority made the following assessment. believes that he had been given permission to display pictures of aborted foetuses. The authority can point out that the permit applied to the assembly itself, not the content of what was displayed or said at that assembly. The requirement of a permit is based on the need to maintain order and security at the locality concerned and its surroundings and also considerations relating to traffic and to avoid the risk of epidemics. No appraisal of the content of the opinions that the organisers want to express may, according to the provisions BILAGA 10 20 07 /08 :JO1 of Section 2.9 of the Public Order Act, be made. The permit division of the City district therefore did not take into account the opinion that the organiser wanted to express. states in his complaint that , the operational commander, said that the pictures had to be taken down as in his opinion they caused offence and he justified his decision on the basis of the Act on Disor- derly Conduct. believes that Matilainens decision involved in fact an infringement of democratic liberties and rights. It appears from the report on the event and the inquiry into this case that no decision was made to disperse the demonstration. complaint also indicates that Matilainen made the point that the demonstration could con- tinue. This means that the authority is able to determine that the dem- onstration was not terminated as the result of a decision. On the other hand, District Commissioner decided that Matilainen was to contact the organiser to inform him that the pictures were not suitable for display and had caused offence to a number of people. informed Matilainen that there was nothing to stop the demonstration from continuing and that any decision to lay charges of disorderly conduct was to be made by Matilainen himself. Matilainens actions consisted of contacting and re- questing him to take the pictures down. Matilainen explained that the demonstration was not being terminated and suggested that the picture could be laid out so that passers-by could be urged to come and look at them. and the other demonstrators then took the pictures down and decided themselves to conclude the demonstration. As the demonstrators opted themselves to break off the demonstration, Matilainen chose not to report any crime, so he himself never reached any final conclu- sion about whether the way in which the pictures were displayed constituted disorderly conduct as defined in section 16.16 of the Criminal Code. submitted a rejoinder to this response. He supplemented his complaint with a video film made during the demonstration. During the se- quences recorded is talking to about the dem- onstration. The film shows that asked to re- move the pictures used during the demonstration and pointed out that they could cause offence, that otherwise he would report for disor- derly conduct and confiscate the pictures and also that the demonstration could continue once the pictures had been taken down. ex- plained that the pictures were a vital element in the demonstration itself. then said that could lay the pictures out on a table so that passers-by who were interested could view them. In a decision of 29 2007, the Chief Parliamentary Ombudsman, . , included the following. Chapter 2 of the Instrument of Government (IoG) contains provisions about the fundamental freedoms and rights of citizens. According to sub-sections 1,3 and 4 of the first paragraph of Article 1 all citizens are, in their relations with the public administration, guaranteed freedom of expression, freedom of assembly and freedom to demonstrate. These freedoms include, for instance, the right to communicate information and to express ideas, opinions and emo- tions orally, in writing, in pictorial representations or any other way and also to attend meetings and arrange or take part in demonstrations in public places. 2 007 /0 8:JO1 B I L A G A 10 These freedoms and rights may only be restricted by law within certain limits (Chapter 2, Articles 1214, IoG). Such restrictions may only be made to achieve a purpose that is acceptable in a democratic society. Moreover they may never exceed what is necessary with regard to the purpose that occa- sioned the restriction nor may they be carried so far that they constitute a threat to the free formation of opinion as one of the foundations of democ- racy. No restriction may be imposed solely on the grounds of political, reli- gious, cultural or other such opinions (Chapter 2, Article 12, second para- graph, IoG). In the same way, Convention on the Protection of Human Rights and Fundamental Freedoms lays down that 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 (Article 10). The right to demonstrate and arrange meetings is dealt with in Article 11 which lays down, for instance, that everyone has the right to freedom of peaceful assembly. These freedoms may not be subject to any restrictions other than those prescribed by law and required in a democratic society for certain listed interests, among them na- tional security or public safety and the prevention of disorder or crime. Restrictions in the freedom to assemble and demonstrate of the kind re- ferred to in 2.14 of the IoG can be found in Chapter 2 of the Act on Public Order (1993:1617). The main regulation stipulates that public assemblies, which refers for in- stance to meetings that constitute demonstrations (Sub-section 1 of the first paragraph of section 1), may not be organised in public places without a per- mit (Section 4, first paragraph). Applications for permits for public assem- blies are reviewed by the authority (Section 8, first paragraph). The authority may specify the conditions required to maintain public order and security at a public assembly (Section 16, second paragraph). Those who fail to comply with conditions that have been laid down in this way are obliged to leave the assembly if instructed to do so (Section 17). Anyone who in their capacity as organiser has, either wilfully or through negligence, failed to acquire a required permit or to comply with the conditions specified ac- cording to the second paragraph of Section 16 can be sentenced to a fine or imprisonment for a maximum of six months (Section 29, first paragraph, sub- section 1). The authority may forbid the organisation of a public assembly, for instance if a previous assembly of the same kind has given rise to grave dis- order at the assembly itself, as a direct consequence of or in the immediate neighbourhood of the assembly, and also if it has gravely imperilled those attending it or caused serious traffic disturbances (Section 25, first paragraph, sub-section 1). The grounds on which a authority may cancel or disperse a public assembly are laid down in sections 22 and 23. Section 22 stipulates that this may only take place if the assembly is held in breach of a decision to reject an application for a permit or of a prohibition pursuant to section 25. BILAGA 10 20 07 /08 :JO1 the authority may disperse a public assembly if grave disorder arises at the assembly itself, as a direct consequence of or in the immediate neighbour- hood of the assembly, and also if it has gravely imperilled those attending it or caused serious traffic disturbances (Section 23, first paragraph, sub-section 1). This means that a public assembly may not unlike a public event be dispersed on the grounds that events are taking place that are against the law. It is moreover stipulated that a public assembly may, pursuant to sections 22 or 23, only be dispersed if less disruptive measures have turned out to be inadequate to restore order, protect those present or reduce interference with traffic (Section 24). The Act on Public Order therefore specifies the circumstances in which the may disperse a demonstration. The provisions in the Act on Public Order only regulate the possibilities open to the for intervention against a demonstration as such and do not affect the possibility of taking measures while a demonstration is in progress against an individual demonstrator. The regulations in the Act and the Procedural Code on the use of coercive measures in criminal procedures contain provisions about the possibilities of the to take measures against individual participants in demonstrations who disturb public order or commit crimes, see for instance section 13 of the Act (1984:387). There are numerous criminal regulations that set limits for what may occur during a public assembly, for instance those referring to assault and wilful damage. In addition there are provisions about agitation against a national or ethnic group (Section 16.8 of the Penal Code), for instance, that limit freedom of expression. Where the crime of disorderly conduct is concerned (Section 16.16 of the Penal Code) the position adopted in the legislation is that this provision cannot be applied to expression of opinion. In other words this provision cannot be interpreted to function as a restriction on freedom of expression (see Commentary on the Penal Code, et. al., p. 16:100 ff. and the government bill 1975/76:209 p. The report of the parliamen- tary enquiry on freedoms and rights, Citizens freedoms and rights, states that it is not considered that this provision, at least according to contemporary ideas, may be applied so that it infringes on freedom of opinion or expression but that it has proved difficult in practice to draw the line, particularly with regard to slogans on placards etc. at demonstrations (SOU 1975:75 p. 286 f., see also p. On the authority issued a permit for a demonstration to be held on 2 2005 at in . According to the permit this involved a demonstration against the abortion law with banners/pictures and megaphones. was named as the organiser and the specific conditions were laid down making him responsible for ensuring that order would prevail during the entire demonstration. Placards were displayed at the demonstration with large pictures depicting aborted foetuses. In his complaint to the Parliamentary Ombudsmen 2 007 /0 8:JO1 B I L A G A 10 has stated that on one occasion a lively discussion took place be- cause of the pictures and that a crowd gathered but that this occurred before the arrived on the scene. As far as can be seen from the report on the event, no disorder arose while the were present. On the contrary it was noted that everything was calm and that it was sufficient to exercise a certain degree of superintendence. The inquiry reveals, nevertheless, that after some time asked to take the pictures down on the grounds that they could cause offence. stated that other- wise he would report for disorderly conduct and seize the pic- tures. As a result the demonstrators chose instead to terminate the demonstra- tion as they did not consider it meaningful to complete it without being able to display their pictures clearly. The question is therefore whether the actions of actually involved infringement of the fundamental freedoms and rights of and the other demonstrators. As a general starting point in the appraisal that follows it is appropriate to bear in mind certain statements of principle from Court of Hu- man Rights concerning freedom of expression. In a decision on in the case of Handyside v. the and in a series of sub- sequent decisions the court has expressed the issue in the following way. Freedom of expression constitutes one of the essential foundations of a democratic society and is one of the basic conditions for its progress and the development of man. It comprises not only information and ideas that receive a positive reception or can be regarded as harmless but also those that outrage, shock or disturb the state or some part of its population. This is the demand that is made by the pluralism, the tolerance and the broad- mindedness without which no democratic society can exist (adapted from , Mänskliga rättigheter i europeisk praxis [Human rights in Euro- pean practice], 2007, p. This means, in short, that a democratic state governed by law has a duty to safeguard the rights of its citizens to express even those ideas and standpoints that may cause offence. In fact, careful consideration will show that this duty applies particularly to this kind of opinion, as those that are more harmless do not usually require the same degree of protection. I would also like to stress that in the travaux préparatoires of the regula- tions in Chapter 2 of the IoG it is maintained that a democratic form of gov- ernment is an empty shell if individual citizens do not have extensive freedom to take part in the formation of social opinion by expressing their ideas, form- ing associations, taking part in demonstrations, etc. (SOU 1975:75 p. The legislators have therefore endeavoured to provide powerful guarantees for the fundamental freedoms and rights of the individual. Accordingly the regula- tions protecting the freedom to assemble and to demonstrate have been worded so that this protection applies irrespective of who arranges meetings or demonstrations and irrespective of what opinions are expressed at them. If the regulations are to function as intended, it is necessary for the authorities, particularly when a permit to demonstrate has been issued, to BILAGA 10 20 07 /08 :JO1 allocate the resources and take the measures otherwise required to enable the demonstration to take place as decided. The authority may not allow itself to be influenced by the attitudes of the decision makers or the general public to what the demonstration is intended to express. At the same time, in the plans it makes for a demonstration the authority must obviously take into account the risks of serious disturbances of the public order that may ensue from the expression of a controversial opinion. In this context it can be pointed out that Court of Human Rights has asserted in a similar case dealing with demonstrations arranged by an organisation of doc- tors who were opposed to abortion that it must be possible to carry out a demonstration without the demonstrators running the risk of being exposed to violence from those who disagree with them. The existence of such a risk could prevent individuals or groups from openly expressing their opinions on controversial issues. The right to stage a counter-demonstration does not therefore include the right to prevent the main demonstration from taking place. Court of Human Rights continued by saying, inter alia, that the state is admittedly responsible for taking measures to ensure that a demonstration can take place but that this cannot imply a complete guarantee of the possibility (see the decision of 21 1988 in Plattform Ärtze für das Leben v. , see also , op. cit. As has been shown, the adoption of measures against a demonstration re- quires explicit support in the provisions of the Act on Public Order which are related to the constitutional rules safeguarding the right to demonstrate. Inter- vention can take the form of dispersal of the demonstration or, primarily, through less disruptive action (see Sections 2224 of Chapter 2 of the Act on Public Order). It is quite another matter that, as I have previously pointed out, provisions in the Act and the regulations on coercive procedures con- tained in the Procedural Code enable the to take action against individ- ual participants in a demonstration who disturb the public order or commit crimes (see the Parliamentary Ombudsmens Annual Report for 1996/97 p. It has not even been suggested in this case that any situation had arisen that could allow the authority to disperse the demonstration, in other words there was no question of any grave disorder or serious danger for those pre- sent or any major traffic disturbances (Sub-section 1 of the first paragraph of section 23 of chapter 1 of the Act on Public Order). There are also grounds for pointing out that the Parliamentary Ombudsmen have previously ex- pressed the opinion that the balance that must be maintained between the conflicting interests that may arise during a demonstration has been specified in detail by the legislators in the regulations in the Act on Public Order. These regulations are, in principle, exhaustive and so there is no scope for questions of appropriateness to be considered by the authorities, either when it comes to the issue of permits or when demonstrations are taking place, apart from those required by the provisions of the act itself (Parliamentary Om- budsmens Annual Report 2000/01 p. 75, p. 89 in particular). intervention at the demonstration seems instead to have been prompted by his belief that a crime was being committed. The authority has admittedly asserted that because the demonstration was called 2 007 /0 8:JO1 B I L A G A 10 off never reached any final conclusion about whether the pictures were being displayed in a way that constituted disorderly conduct. This statement is remarkable. In my opinion actions can only be understood to mean that he patently considered that the crime of dis- orderly conduct was being committed. The commentary on the penal code states, as has previously been pointed out, that the crime of disorderly conduct may not be understood as a crime committed by voicing an opinion. In addition, it is stated with regard to the relationship of the crime to freedom of the press that one prerequisite for the application of 16:16 to the circulation of printed material is that the way in which this circulation took place was intended to cause public offence and therefore that the criminality does not reside in the offensiveness of the con- tents and also that prosecution on such grounds was not to function as re- striction of freedom of expression (p. 16:102 f.). I consider that the same approach should apply in relation to the other free- doms of opinion. It should never be possible to regard the public expression of an opinion or manifestation of an idea as disorderly conduct. Charges for such a crime should only be considered if the opinion or idea is presented through actions that can cause offence or, in the wording of the provision, through public behaviour in a apt to arouse public indignation. A more extensive interpretation of the scope of the provision would, in my opin- ion, involve a departure from the requirement that restrictions of the funda- mental freedoms and rights must take the form of explicit legislation. I am admittedly aware that the provision sometimes has been applied in a way that could be seen to mean that the expression of an opinion is being punished, mainly in earlier cases before the enactment of the 1974 Instrument of Government (see, for instance, the judgement of the City Court of cited in SvJT 1964, ref. p. Furthermore, the commentary on the penal code states, not without ambiguity, that nobody who declares an opin- ion can be guilty of the crime, no matter how offensive the declaration may be unless the circumstance that the declaration was made in public is in- tended to arouse offence (p.