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ECHR Case Part Two - Continued


B.  Treatment while in prison


1.  Background facts


(a)  Medical treatment regarding lump on testicle


91.  In April 2011 the applicant discovered a lump on his right testicle. He was examined in his cell but was required to wear clothes for external appointments. He refused to dress and subsequently made prison complaints about alleged inadequate medical treatment. When they were unsuccessful, he referred the complaints to the Scottish Ministers but on 10 August 2011 he was informed that they were not upheld. The applicant then contacted the Scottish Public Services Ombudsman (“the Ombudsman”). However, he was advised that his complaint was not one which the Ombudsman could pursue. On 8 February 2012 he was told that the lump had gone.


(b)  Visits from family and friends


92.  On 27 August 2011 the applicant made a prison complaint that he was not allowed visits. He was told in reply that he was permitted visits provided that he was appropriately dressed. He referred the complaint to the Internal Complaints Committee (“ICC”) on 1 September 2011. He was advised on 26 September 2011 that the ICC had fully endorsed the suggestion that visits be accommodated in the segregation unit. He was told to discuss this with the relevant staff and book a visit. No visits took place.


93.  On 9 November 2011 the applicant contacted the Ombudsman with a complaint that the Scottish Prison Service (“SPS”) was unreasonably refusing to enable him to receive visits. By letter dated 10 January 2012 he was informed that the Ombudsman had not upheld the complaint because according to information from the SPS, he had been asked to cover his genitalia when walking from A Hall, where he was detained, to the segregation unit. He had refused to do so.


(c)  General dental and medical treatment


94.  On 14 September 2011 the applicant made a prison complaint about refusal of dental and general medical treatment over the previous five years while he was in detention. By reply dated 20 September 2011 he was advised that the full range of clinical services were available to prisoners and that he was required to comply with the dress code to attend appointments. He referred the complaint to the Scottish Ministers, who did not uphold his complaint.


(d)  Association with other prisoners and exercise


95.  As noted above, the applicant spent much of his detention in segregation. Even when not in segregation, his ability to participate in activities and to associate with other prisoners was generally limited as long as he remained naked. He was not permitted to access the gym, for health and safety reasons. However, efforts were made to give him access to books and to explore further work or hobbies that could be conducted in his cell. Throughout his time in segregation, the applicant was reviewed regularly by health care professionals.


96.  On 29 January 2012 the applicant complained to the prison authorities that he was not allowed to associate with other prisoners or to exercise. By reply dated 31 January 2012 he was told that he was not being denied association or exercise but had excluded himself from these activities by refusing to wear clothes. The applicant referred the complaint to the ICC on 2 February 2012 but the ICC decided that the current arrangements were satisfactory. It noted that if the applicant were to wear clothes, he would be permitted to associate with other prisoners. However, his choice to remain naked gave rise to serious concerns that he might be the victim of violence or unwarranted comments, and the prison had an obligation to ensure his safety.


97.  In March 2012 the applicant complained to the Ombudsman that the SPS had given an unreasonable explanation for denying him access to association and exercise. By reply dated 24 May 2012 the Ombudsman informed him that his complaint had not been upheld because prison staff had confirmed that if he wore clothes, he would be able to associate with other prisoners and exercise.


2.  Attempts to secure legal representation and exemption from court fees


98.  The applicant contacted the Law Society of Scotland seeking details of solicitors in Edinburgh experienced in judicial review. He received a list containing the names of fourteen firms, which he duly contacted. None were willing to represent him. However, a further seven firms were recommended to him. He contacted them and was informed that none were willing to represent him.


99.  He then contacted the Court of Session to request information regarding exemption from court fees, with a view to commencing judicial review proceedings without legal assistance. He was advised that as he was a prisoner and not in receipt of any State benefits, he was not eligible for exemption from court fees.


 


II.  RELEVANT DOMESTIC LAW AND PRACTICE


A.  Criminal offences in Scotland


1.  Breach of the peace


100.  The leading case as to what constitutes a breach of the peace under Scots law is Smith v. Donnelly 2001 SLT 1007, where the Appeal Court said:


“17.  The crime of breach of the peace can be committed in a wide variety of circumstances, and, in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable. Equally, in our view, it is neither possible nor desirable to derive a comprehensive definition from a close analysis of the facts of individual cases in which it has been held that a breach of the peace had been committed … [I]t is, in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community … What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person.


18.  That interpretation is supported by the fact that … if there is no evidence of actual alarm, the conduct must be ‘flagrant’ if it is to justify a conviction. ‘Flagrant’ is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances … We therefore conclude that the definition of the crime found in the principal authorities does meet the requirements of the Convention.”


101.  In Her Majesty’s Advocate v. Harris [2010] HCJAC 102, the Appeal Court, citing Smith, emphasised that it was now clear that the crime of breach of the peace involved two elements: conduct (1) severe enough to cause alarm to ordinary people and (2) which threatened serious disturbance to the community.


102.  The maximum sentence for a breach of the peace depends upon the court in which the offence is tried. When prosecuted in summary proceedings in the Sheriff Court, the maximum sentence is a fine of up to five thousand pounds sterling or imprisonment of one year.


2.  Breach of bail conditions


103.  Pursuant to section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), it is an offence to fail, without reasonable excuse, to comply with any condition imposed on bail. Section 27(2) provides that a person guilty of an offence under section 27(1) is liable to a fine or to imprisonment for up to twelve months.


3.  Contempt of court


104.  In HM Advocate v. Airs 1975 JC 64 contempt of court was described as:


“conduct which challenges or affronts the authority of the court or the supremacy of the law itself.”


105.  Every court in Scotland has the inherent power to punish persons who are in contempt of it. Where contempt occurs in the court itself, it may be dealt with immediately by the judge without a prior formal charge.


106.  Pursuant to section 15(2) of the Contempt of Court Act 1981, contempt of court in summary proceedings before a Sheriff is punishable by a fine or imprisonment for up to three months.


B.  Criminal proceedings in Scotland


1.  The decision to prosecute


107.  In Scotland, the decision whether to prosecute an individual is taken by the Crown Office. The Crown Office is wholly independent of the police and is under the responsibility of the Scottish Law Officers (the Lord Advocate and the Solicitor General).


108.  There are two forms of criminal procedure in Scotland. The most serious crimes are tried under “solemn procedure” on indictment. Determinations of fact in such cases are made by a jury. Less serious crimes are tried under “summary procedure” by a judge sitting without a jury.


2.  The determination of the sentence in summary proceedings


109.  In summary proceedings, the Sheriff determines the sentence to be imposed on a person found guilty. He is required to take into account a number of considerations including: the offender’s personal circumstances; his criminal record or lack thereof; the circumstances of the offence; the age of the offender (if under 21); the absence of any previous custodial sentence; any guidance issued by the High Court; any plea of guilty; and any time spent in custody awaiting trial. The court may decide that it is sufficient to admonish a person found guilty. Typically, this may be done where the case concerns a first offence or is minor or there are other extenuating circumstances.


3.  The procedure for appeal in summary proceedings


110.  Section 175 of the 1995 Act provides for the possibility of lodging an appeal against conviction in summary proceedings. Section 175(2) stipulates that leave is required.


111.  Pursuant to section 176(1), any appeal against conviction must be by way of case stated. The presiding judge at the trial must prepare a draft stated case and provide a copy to the appellant. The stated case sets out the matters competent for review by the High Court, the facts proved in the case, any points of law decided and the reasons for the decision. Parties to the proceedings may propose adjustments to the stated case. If adjustments are proposed, the judge must arrange a date for a hearing for the purpose of considering proposed adjustments. Once the case stated has been finalised, a copy is sent to the appellant, who must lodge it with the Clerk of Justiciary within one week of receipt. If he fails to do so, the appeal will be deemed abandoned.


112.  Under sections 180 and 187 of the 1995 Act, the decision whether to grant leave to appeal against conviction or sentence is made by a judge of the High Court who, if he considers that there are arguable grounds of appeal, must grant leave to appeal and make such comments in writing as he considers appropriate. In any other case, the judge must refuse leave to appeal and give reasons in writing for the refusal.


C.  Prison Rules and Directions


113.  The Prison Rules are contained in secondary legislation. At the relevant time the rules were set out in the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (“the Prison Rules 2006”). From 1 November 2011, the relevant rules were the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (“the Prison Rules 2011”). There is no material difference between the two sets of rules in so far as they applied to the applicant. The references below are to the 2006 Rules.


1.  Rules on segregation


114.  Rule 94(1) of the Prison Rules 2006 provided that a prisoner could be removed from association with other prisoners for the purpose of maintaining good order or discipline; protecting the interests of any prisoner; and ensuring the safety of others.


115.  Pursuant to Rule 94(4), a segregation order had to specify the nature of the removal from association and the reasons for making the order. Segregation was limited to a maximum of 72 hours unless an extension had been authorised specifically by the Scottish Ministers for a further month at a time (see Rule 94(5) and (6)). A prisoner was entitled to receive the reasons for his segregation and to make representations to the Scottish Ministers in respect of any application to extend segregation beyond 72 hours.


116.  Rule 94(7) provided that the prison governor was obliged to cancel a segregation order if he was advised by a medical officer that it was appropriate to do so on health or welfare grounds. Pursuant to Rule 94(10), where a prisoner was removed from association, a medical officer was required to visit the prisoner as soon as practicable and thereafter as often as is necessary but at least once in every seven days.


117.  Similar provisions appear in Rule 95 of the Prison Rules 2011.


2.  Rules on medical care


118.  Part 5 of the Prison Rules 2006 addressed health and welfare issues. Rule 32 provided that the Scottish Ministers were required to make arrangements for the provision at every prison of appropriate medical services and facilities for the maintenance of good health, the prevention of illness, the care of prisoners suffering from illness or the aftercare of such prisoners.


119.  Rule 33 provided that a medical officer had to attend prisoners who complained of illness at such times, and with such frequency, as the medical officer judged necessary in the circumstances. The Governor was obliged, without delay, to bring to the attention of a medical officer any prisoner whose physical or mental condition appeared to require attention (Rule 34). Rule 35 made provision for a medical officer to make arrangements for consultation of specialists.


120.  Similar provisions can be found in Part 5 of the Prison Rules 2011.


121.  The Prison Rules are supplemented in this respect by the Health Board Provision of Healthcare in Prisons (Scotland) Directions 2011.


3.  Rules on general daily life


122.  Further general obligations are set out in the Prison Rules. These include the provision of reasonable assistance and facilities to develop relationships with family and friends; facilitation of the practice of a prisoner’s religion or belief within the prison; enabling visits to the prisoners; provision of purposeful activities (including work, education, counselling and vocational training); daily opportunity to exercise and spend time in the open air; and provision of reasonable facilities and opportunities to participate in recreational activities outwith normal working hours.


III.  COMPARATIVE LAW MATERIALS


123.  The Court requested the parties to provide comparative information concerning the approach of other member States of the Council of Europe to nudity in public. The Government submitted information on the law and practice in nineteen of the forty-six other member States.


124.  It appears from the data provided that of the nineteen States surveyed, only the Netherlands expressly criminalises public nudity. It is punishable by the imposition of an administrative fine.


125.  Other States (Andorra, Belgium, France, Germany and Switzerland) appear to penalise “exhibitionism”, but the term is rarely defined. It seems that sanctions vary but the data provided in this respect are incomplete.


126.  According to the data, a number of States have some form of public decency, public order or public peace legislation that might extend to prohibiting public nudity (Belgium, Croatia, the Czech Republic, Denmark, Estonia, Germany, Greece, Italy, Lithuania, the Netherlands, San Marino, Poland, Romania, Russia, Slovenia, Sweden and Switzerland). While sentencing information has not been provided for some of the States (Denmark, Estonia and Russia), it appears that sentencing powers generally vary from the imposition of fines only (the Czech Republic, Germany, Slovenia, Sweden and Switzerland) to the possibility of imprisonment (Belgium, Croatia, Greece, Italy, Lithuania, the Netherlands, Poland, Romania and San Marino).


THE LAW


I.  THE APPLICANT’S REPEATED ARREST, PROSECUTION, CONVICTION AND IMPRISONMENT


127.  The applicant complained about his repeated arrest, prosecution, conviction and imprisonment for being naked in public. In his first letter he invoked Articles 5, 6, 7, 8, 9, 10, 13 and 14 of the Convention as well as Articles 2 and 4 of Protocol No. 7.


A. Compliance with Article 35 § 1


1.  The parties’ submissions


(a)  The Government


128.  The Government alleged that in respect of this complaint the applicant had failed to comply with Article 35 § 1, which provides:


“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”


129.  First, the Government argued that each arrest and conviction was a separate incident which could not be viewed as a continuing situation. They emphasised that there was no policy on the part of the police or the prosecuting authorities as regards public nudity and their response to the applicant’s repetition of discrete instances of criminal conduct did not make that conduct “continuing”. They noted that in his first letter the applicant had complained about his 18 June 2009 arrest and subsequent conviction only. Although he had later referred to his July 2011 arrest and subsequent conviction, the Government were of the view that he had not specifically complained about that arrest and conviction. They therefore contended that the complaint had been lodged outside the six-month time-limit stipulated in Article 35 § 1 of the Convention.


130.  Second, the Government argued that the applicant had failed to exhaust domestic remedies. While he had initiated an appeal by stated case, he had abandoned it on the unsupported allegation that the stated case was biased. According to the Government, this was not a credible or acceptable basis to decline to bring his conviction under review by the competent domestic court.


(b)  The applicant


131.  The applicant reiterated that he had been repeatedly prosecuted and punished for public nudity and did not accept that his complaints had been lodged out of time. Relying on McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, Decisions and Reports (DR), 20, p. 44, he maintained that his case concerned a permanent state of affairs which was still continuing and that the question of the six-month rule could only arise after the state of affairs had ceased.


132.  He further maintained that he had exhausted all domestic remedies available to him. He had appealed his August 2011 conviction by case stated, invoking arguments under the Convention, and was refused leave to appeal at the first and second sifts in December 2011. There was no further avenue of appeal under Scots law. In these circumstances, there was no prospect of obtaining damages.


2.  The Court’s assessment


(a)  The six-month rule


133.  The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. However, it has been said that the six-month time-limit does not apply as such to continuing situations because, if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end (Chiragov and Others v. Armenia [GC] (dec.), no. 13216/05, § 126, 14 December 2011).


134.  In the present case, each arrest, with the ensuing prosecution, conviction and sentence of imprisonment, was a discrete incident which followed directly upon the applicant’s appearance naked in public on different occasions. As the Government pointed out and as is evident from the facts as outlined, the applicant has enjoyed periods of liberty between his periods of detention, even if sometimes only for a few minutes. Accordingly, while the cycle of release and rearrest can be said to constitute a pattern, it cannot be viewed as a continuing situation within the meaning of the Court’s case-law (compare and contrast McFeeley and Others, cited above, § 24). The six-month period therefore began to run in respect of each conviction from the date of the final domestic decision in the case.


135.  In his first letter to the Court, dated 29 July 2011, the applicant complained about his arrest in June 2009, his subsequent conviction and the appeal proceedings. His appeal in respect of that conviction was abandoned on 29 October 2009. Had his complaint been directed solely at that conviction, it would have been lodged outside the six-month time-period allowed by Article 35 § 1.


136.  However, in his subsequent application form, dated 20 December 2011, he complained that his “repeated conviction and imprisonment for the offence of breach of the peace owing to his refusal to wear clothes in public” amounted to a violation of the Convention. He set out details of his arrest on 20 July 2011 and conviction on 24 August 2011, with reference to his pending appeal. The Court is therefore satisfied that he also complained about his 2011 arrest and conviction, in the wider context of a pattern of prosecutions and convictions for being naked in public. Leave to appeal in respect of the July 2011 conviction was refused on 22 December 2011. The applicant having first notified the Court of this complaint on 20 December 2011, he has therefore complied with the six-month time-limit in this respect.


(b)  Non-exhaustion of domestic remedies


137.  It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996IV; andBlatchford v. the United Kingdom (dec.), no. 14447/06, 22 June 2010).


138.  As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.


139.  As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.


140.  Finally, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69).


141.  It is apparent that the applicant sought to appeal his 2011 conviction by way of case stated (see paragraphs 84above). In his appeal, he invoked Articles 5, 6, 7, 8, 9, 10 and 14 of the Convention. Permission to appeal was refused on the second sift on 22 December 2011 (see paragraph 86 above). The applicant has accordingly exhausted available domestic remedies in respect of his complaint.


(c)  Conclusion on compliance with Article 35 § 1 of the Convention


142.  In conclusion, the applicant has satisfied the requirements of Article 35 § 1 of the Convention in respect of his complaint about his 2011 arrest, prosecution, conviction and imprisonment, as one incident in a pattern of arrests, prosecutions and convictions over a number of years which was continuing at the time that he lodged his application. The relevance of this broader context will be discussed further in the examination of the admissibility and merits of his individual complaints, below.


B.  The alleged violations of Articles 5 § 1 and 7 § 1 of the Convention


143.  As noted above, in his first letter the applicant invoked Articles 5 § 1 (guaranteeing the right to liberty and security) and 7 § 1 (prohibiting punishment without law) in respect of his repeated arrest, prosecution, conviction and sentence, without providing further details of the precise nature of the complaints. He did not reiterate these complaints in the application form subsequently lodged by his solicitors. Although the Court sought written observations on the complaints under these Articles from the parties, the applicant did not subsequently make any relevant written submissions.


144.  The applicant, who was legally represented, chose not to pursue the complaints either in his application form or in his written submissions. In the circumstances, the Court sees no reason to examine the complaints.


C.  The alleged violation of Article 10 of the Convention


145.  Article 10 of the Convention provides:


“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.


2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”


1   Scope of the complaint


146.  As noted above, while citing two particular instances of arrest and conviction, the applicant clearly complained about his repeated arrest, prosecution, conviction and imprisonment for the offence of breach of the peace owing to his refusal to wear clothes in public. Although the Court has concluded that this did not amount to a continuing situation for the purposes of the six-month rule in Article 35 § 1 of the Convention, it did accept that the incidents formed part of a pattern of arrests, prosecutions, convictions and sentences of imprisonment for being naked in public (see paragraph 142 above). It would be artificial to ignore this wider pattern when considering the compliance of the measures with the applicant’s Article 10 rights, since it is precisely their repeated nature which has led to the applicant’s detention for a number of years. The Court will therefore examine the compatibility of the applicant’s 2011 arrest, prosecution, conviction and imprisonment with Article 10 of the Convention in the light of the pattern of prior and subsequent such incidents.


2.  Applicability of Article 10 and the admissibility of the complaint


147.  The applicant argued that public nudity was a clear form of expression within the meaning of Article 10 of the Convention. The term “expression” had been widely construed by the Court to cover various different forms of expression, including expression in words, in pictures, by video and through conduct intended to convey an idea or information. In his case, the decision not to wear clothes was a direct expression of his principled views on the human body. His complaint therefore fell within the scope of Article 10 of the Convention.


148.  The Government responded that there had been no restriction placed on the applicant in this regard and that he was free to advocate his views. They did not accept that wearing no clothes constituted freedom of expression or that the requirement to wear clothes in certain contexts prevented freedom of expression.


149.  The protection of Article 10 extends not only to the substance of the ideas and information expressed but also to the form in which they are conveyed (Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). The Court accepts that the right to freedom of expression may include the right for a person to express his ideas through his mode of dress or his conduct (see, respectively, Stevens v. the United Kingdom, no. 11674/85, Commission decision of 3 March 1986, DR 46, p. 245, andKara v. the United Kingdom, no. 36528/97, Commission decision of 22 October 1998, unreported; and Smith and Grady v. the United Kingdom (dec.), nos. 33985/96 and 33986/96, 23 February 1999). In Donaldson v. the United Kingdom (dec.), no.56975/09, § 20, 25 January 2011, it found that the applicant’s decision to wear an Easter lily (a symbol to commemorate the Irish republican combatants who died during, or were executed after, the 1916 Easter Rising in Ireland) had to be regarded as a way of expressing his political views (see also Vajnai v. Hungary, no. 33629/06, § 29, ECHR 2008). In Steel and Others v. the United Kingdom, 23 September 1998, § 92, Reports 1998VII, the Court held that protests, which took the form of physically impeding the activities of which the applicants disapproved, constituted expressions of opinion within the meaning of Article 10 (see also Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 28, ECHR 1999VIII).


150.  In the present case, the applicant has chosen to be naked in public in order to give expression to his opinion as to the inoffensive nature of the human body (see paragraphs 55 and 147 above). The Court is therefore satisfied that the applicant’s public nudity can be seen as a form of expression which falls within the ambit of Article 10 of the Convention and that his arrest, prosecution, conviction and detention constituted repressive measures taken in reaction to that form of expression of his opinions by the applicant. There has therefore been an interference with his exercise of his right to freedom of expression.


151.  In view of the submissions of the parties, the Court considers that the complaint raises complex and serious issues under Article 10 of the Convention which cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established and it must therefore be declared admissible.


3.  Merits of the complaint


152.  An interference with the right to freedom of expression can only be justified under Article 10 § 2 if it is prescribed by law, pursues one of more of the legitimate aims to which Article 10 § 2 refers and is necessary in a democratic society in order to achieve any such aim.


(a)  Prescribed by law


(i)  The parties’ submissions


153.  The applicant argued his criminal prosecution for public nudity was not prescribed by law. He did not expand upon this submission.


154.  The Government contended that the interference was prescribed by law. They noted that the various measures were taken on the basis of domestic law. It was not the role of this Court to consider whether the domestic law had been correctly applied to the applicant and whether he had been correctly convicted.


(ii)  The Court’s assessment


155.  The applicant failed, in the context of his written submissions under Article 10, to explain the nature of his challenge to the legality of the measures taken against him. Having regard to the Court’s finding in Lucas v. the United Kingdom (dec.), no.39013/02. 18 March 2003, that the definition of the offence of breach of the peace as stipulated in Smith v. Donnelly (see paragraph 100 above) was sufficiently precise to provide reasonable foreseeability of the actions which might fall within the remit of the offence, the Court is satisfied that the interference in the present case both had a sufficient legal basis in domestic law and was “prescribed by law” in the wider sense of having the quality required of “law” in a democratic society.


(b)  In pursuit of a legitimate aim


(i)  The parties’ submissions


156.  The applicant contended that his arrest, prosecution, conviction and imprisonment were not in pursuit of any of the stated aims listed in Article 10 § 2. He did not elaborate on this submission.


157.  The Government argued that the measures pursued the aim of preventing disorder and crime by preventing breaches of the peace in public.


(ii)  The Court’s assessment


158.  Having regard to all the circumstances surrounding the actions of the applicant and the police, the Court accepts that the measures aimed to prevent disorder and crime. However, the parties did not make detailed submissions identifying more clearly the precise nature of the disorder and crime which the measures were taken to prevent. It is clear that in a straightforward sense, the measures were designed to prevent the applicant’s committing breach of the peace through causing offence to and alarming other members of the public by confronting them with his naked state in public. However, the applicant’s arrest, prosecution, conviction and imprisonment can be seen to have pursued the broader aim of seeking to ensure respect for the law in general, and thereby preventing the crime and disorder which would potentially ensue were the applicant permitted to continually and persistently flout the law with impunity because of his own personal, albeit sincerely held, opinion on nudity.


(c)  Necessary in a democratic society


(i)  The parties’ submissions


(α)  The applicant


159.  The applicant argued that there was no pressing social need to justify the restrictions on public nudity or that, if there was, such restrictions were not proportionate to that need.


160.  In the applicant’s view, the responses of other Council of Europe States to public nudity (see paragraphs 123-126above) reinforced his submission as to the disproportionality of his repeated arrest and imprisonment in the absence of any suggestion that he intended to cause harassment or disturbance to the public. A significant majority of States either did not treat public nudity as a criminal offence or treated it as a minor misdemeanour susceptible to a fine or a short period of imprisonment. This was to be contrasted with his situation, where he had served almost seven years in prison for public nudity following a pattern of arrest, prosecution, conviction, imprisonment, release and immediate rearrest. He therefore invited the Court to find a violation of Article 10 of the Convention.


(β)  The Government


161.  The Government argued that defining the scope of the crime of breach of the peace was peculiarly sensitive to themores of individual States. As regards the responses of other States to public nudity, they emphasised that the period which the applicant had spent in prison was not the result of a one-off offence attracting a response by the authorities which was out of step with other Council of Europe States. One-off offences of the nature at issue in the present case also attracted minor responses from the prosecuting authorities in the United Kingdom. The applicant’s imprisonment, on the other hand, arose from his repeat offending. In an area of criminal policy where there was a divergence of views among the Council of Europe member States, such as in the present case, a particularly wide margin of appreciation applied.


162.  The Government maintained that any interference was justified and proportionate. It was confined to preventing certain conduct by reason of its adverse impact, or potentially adverse impact, on others and on the public order, in a public context. They further emphasised that any person who exercised freedom of expression undertook duties and responsibilities that included the obligation to avoid expressions which were offensive to others and which did not contribute to any form of public debate capable of furthering progress in human affairs. The Government were of the view that the applicant had failed to act consistently with this principle.


163.  Finally, they pointed out that the applicant was not tried for every offence alleged; that not every trial resulted in a conviction; and that not every conviction resulted in a term of imprisonment. As far as the forty-two offences for which he was arrested in Scotland in the nine-year period between July 2003 and July 2012 were concerned, the Crown decided not to initiate proceedings in respect of twelve. The applicant was acquitted in respect of three offences on a finding of not guilty, on the acceptance of a no case to answer submission and on the acceptance of a not guilty plea, respectively. In respect of the remaining twenty-seven offences of which he was convicted, the applicant was admonished on three occasions. A term of imprisonment of three months had only been imposed after the seventh occurrence of a breach of the peace. It was also relevant that the Sheriff had specifically raised the possibility of a deferred sentence with the applicant following his conviction in July 2009 if he agreed to wear clothes, but the applicant had refused to agree (see paragraph 60 above).

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