Content Regulation / Censorship, Indecency / Obscenity
Bobby Art International v. Hoon
Closed Mixed Outcome
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The applicants were fined and certain of their paintings confiscated because they were considered to be obscene under Article 10 of the European Convention of Human Rights.
The first applicant, Josef Felix Müller and nine other applicants exhibited their works in private galleries and museums. In 1981, the other nine applicants mounted an exhibition of contemporary art in Fribourg at the former Grand Seminary, a building scheduled to be demolished. Over three nights Müller displayed three painting at this location. The exhibition was open to all without admission charges. Three paintings mounted at the exhibition, depicted fellatio, sodomy, and sex with animals. The catalog (printed specially for the preview) contained photographic reproductions of the painting. The prosecutor, acting on information with regards to the violent reaction over the paintings on show brought investigation and charges to the exhibition and exhibitors. The principal public prosecutor lodged proceedings demanding that the paintings be destroyed on the grounds that they were obscene. Following criminal proceedings, the paintings were confiscated and the applicants were fined. The paintings were later returned. 
 See para. 9-13 of the decision, http://hudoc.echr.coe.int/eng?i=001-57487
The court first discussed the relevant law in this case. It reviewed Article 204 of the Swiss Criminal Code, which provides that:
“1. Anyone who makes or has in his possession any writings, pictures, films or other items which are obscene with a view to trading in them, distributing them or displaying them in public, or who, for the above purposes, imports, transports or exports such items or puts them into circulation in any way, or who openly or secretly deals in them or publicly distributes or displays them or by way of trade supplies them for hire, or who announces or makes known in any way, with a view to facilitating such prohibited circulation or trade, that anyone is engaged in any of the aforesaid punishable activities, or who announces or makes known how or through whom such items may be directly or indirectly procured, shall be imprisoned or fined.
2. Anyone supplying or displaying such items to a person under the age of 18 shall be imprisoned or fined.
3. The court shall order the destruction of the items.” 
The definition of obscene was debated at length by the Court and they recognized the need to avoid excessive rigidity and to keep pace with changing circumstances. This ultimately means that the laws are inevitably couched in terms which, to a greater or lesser extent, are vague.
In the present case, the court looked at the number of similar decisions by the Federal Court on the ‘publication of obscene items’. The decisions were accessible because they had been published and followed by the lower courts. As such, the court found precedent holding that the applicants’ convictions were prescribed by law. 
Second, the court analyzed whether the regulations pursued a legitimate aim. The Government here submitted that the interference complained of was aimed at protecting morals and the rights of others. They also relied on the reaction of a man and his daughter who visited the exhibition. Therefore it pursues a legitimate aim. 
Finally, the court reviewed whether such regulation was necessary in a democratic society. The court reiterated that necessary meant that there was a pressing social need.  Therefore, the state has a margin of appreciation in assessing whether such a need existed. However, the margin goes along with European supervision, in deciding if the application of the margin seemed to proportionate to the interference.
The court had to further consider if the painting in question was crude or obscene, as it depicted different manners of sexual relations, particularly with men and animals. The court recognized the conceptions of ever changing sexual morality, and thus did not find that the view of the Swiss courts that “liable grossly to offend the sense of sexual propriety of persons of ordinary sensibility” to be unreasonable. Because of this, the imposition of the fine did not constitute a violation of the right to freedom of expression.  It was therefore deemed to be necessary in a democratic society.
 Article 204 of the Swiss Criminal Code, https://www.admin.ch/opc/en/classified-compilation/19370083/201501010000/311.0.pdf
 Para. 29 of the decision, http://hudoc.echr.coe.int/eng?i=001-57487
 Para. 30 of the decision, id.
 Para. 32 of the decision, id.
 Para 36 of decision, id.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The application of the margin of appreciation with regards to obscenity is a very delicate balance on the local acceptance of what is considered obscene. The local courts have the capacity to evaluate and assess the suitability for the local society regarding the acceptance and the impact of the expression. The ECtHR is tasked with analyzing the legitimacy of the interference, while simultaneously deciding if the actions taken are proportionate.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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