(a) the applicants' memorial, written in German by leave of the President (Rule 27 § 3), on 1 June 1987;
(b) the Government's memorial, on 30 July.

(a) Charles Descloux, art critic, born in 1939 and living in Fribourg;
(b) Michel Gremaud, art teacher, born in 1944 and living at Guin, Garmiswil;
(c) Christophe von Imhoff, picture restorer, born in 1939 and living at Belfaux;
(d) Paul Jacquat, bank clerk, born in 1940 and living at Belfaux;
(e) Jean Pythoud, architect, born in 1925 and living in Fribourg;
(f) Geneviève Renevey, community worker, born in 1946 and living at Villars-sur-Glâne;
(g) Michel Ritter, artist, born in 1949 and living at Montagny-la-Ville;
(h) Jacques Sidler, photographer, born in 1946 and living at Vuisternens-en-Ogoz;
(i) Walter Tschopp, assistant lecturer, born in 1950 and living in Fribourg.

"In the instant case, although Mr. Müller's three works are not sexually arousing to a person of ordinary sensitivity, they are undoubtedly repugnant at the very least. The overall impression is of persons giving free rein to licentiousness and even perversion. The subjects - sodomy, fellatio, bestiality, the erect penis - are obviously morally offensive to the vast majority of the population. Although allowance has to be made for changes in the moral climate, even for the worse, what we have here would revolutionise it. Comment on the confiscated works is superfluous; their vulgarity is plain to see and needs no elaborating upon.(...)
Nor can a person of ordinary sensitivity be expected to go behind what is actually depicted and make a second assessment of the picture independently of what he can actually see. To do that he would have to be accompanied to exhibitions by a procession of sexologists, psychologists, art theorists or ethnologists in order to have explained to him that what he saw was in reality what he wrongly thought he saw.
Lastly, the comparisons with the works of Michelangelo and J. Bosch are specious. Apart from the fact that they contain no depictions of the kind in Müller's paintings, no valid comparison can be made with history-of-art or cultural collections in which sexuality has a place (...), but without lapsing into crudity. Even with an artistic aim, crude sexuality is not worthy of protection (...). Nor are comparisons with civilisations foreign to western civilisation valid."

"Not without misgivings, the court will not order the destruction of the three works.
The artistic merit of the three works exhibited in Fribourg is admittedly less obvious than is supposed by the witness Ammann, who nevertheless said that the paintings Müller exhibited in Basle were more 'demanding'. The court would not disagree. Müller is undoubtedly an artist of some accomplishment, particularly in the matter of composition and in the use of colour, even though the works seized in Fribourg appear rather scamped.
Nonetheless, the court, deferring to the art critic's opinion while not sharing it, and concurring with the relevant findings of the Federal Court in the Rey judgment (ATF 89 IV 136 et seq.), takes the view that in order to withhold the three paintings from the general public - to 'destroy' them - it is sufficient to place them in a museum, whose curator will be required to make them available only to a few serious specialists capable of taking an exclusively artistic or cultural interest in them as opposed to a prurient interest. The Art and History Museum of the Canton of Fribourg meets the requirements for preventing any further breach of Article 204 of the Criminal Code. The three confiscated paintings will be deposited there."

"These are not works which, in treating a particular subject or scene, allude to sexual activity more or less discreetly. They place it in the foreground, depicting it not in the embrace of man and woman but in vulgar images of sodomy, fellatio between males, bestiality, erect penises and masturbation. Sexual activity is the main, not to say sole, ingredient of all three paintings, and neither the appellants' explanations nor the witness Mr. Ammann's learned-seeming but wholly unpersuasive remarks can alter that fact. To go into detail, however distasteful it may be, one of the paintings contains no fewer than eight erect members. All the persons depicted are entirely naked and one of them is engaging simultaneously in various sexual practices with two other males and an animal. He is kneeling down and not only sodomising the animal but holding its erect penis in another animal's mouth. At the same time he is having the lower part of his back - his buttocks, even - fondled by another male, whose erect penis a third male is holding towards the first male's mouth. The animal being sodomised has its tongue extended towards the buttocks of a fourth male, whose penis is likewise erect. Even the animals' tongues (especially in the smallest painting) are more suggestive, in shape and aspect, of erect male organs than of tongues. Sexual activity is crudely and vulgarly portrayed for its own sake and not as a consequence of any idea informing the work. Lastly, it should be pointed out that the paintings are large (...), with the result that their crudeness and vulgarity are all the more offensive.
The court is likewise unconvinced by the appellants' contention that the paintings are symbolical. What counts is their face value, their effect on the observer, not some abstraction utterly unconnected with the visible image or which glosses over it. Furthermore, the important thing is not the artist's meaning or purported meaning but the objective effect of the image on the observer (...).
Not much of the argument in the appeal was directed to the issues of intention or of awareness of obscenity, nor indeed could it have been. In particular, an author is aware of a publication's obscenity when he knows it deals with sexual matters and that any written or pictorial allusion to such matters is likely, in the light of generally accepted views, grossly to offend the average reader's or observer's natural sense of decency and propriety. That was plainly so here, as the evidence at the trial confirmed. (...) Indeed, several of the defendants admitted that the paintings had shocked them. It should be noted that even someone insensible to obscenity is capable of realising that it may disturb others. As the trial court pointed out, the defendants at the very least acted recklessly.
Lastly, it is immaterial that similar works have allegedly been exhibited elsewhere; the three paintings in issue do not on that account cease to be obscene, as the trial court rightly held them to be (...)"

"The decided cases show that for the purposes of Article 204 of the Criminal Code, any item is obscene which offends, in a manner that is difficult to accept, the sense of sexual propriety; the effect of the obscenity may be to arouse a normal person sexually or to disgust or repel him. (...) The test of obscenity to be applied by the court is whether the overall impression of the item or work causes moral offence to a person of ordinary sensitivity (...).
The paintings in issue show an orgy of unnatural sexual practices (sodomy, bestiality, petting), which is crudely depicted in large format; they are liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity. The artistic licence relied on by the appellant cannot in any way alter that conclusion in the instant case.
The content and scope of constitutional freedoms are determined on the basis of the federal law currently in force. This applies inter alia to freedom of the press, freedom of opinion and artistic freedom; under Article 113 [of the Federal Constitution], the Federal Court is bound by federal enactments (...) In the field of artistic creation [it] has held that works of art per se do not enjoy any special status ( A work of art is not obscene, however, if the artist contrives to present subjects of a sexual nature in an artistic form such that their offensiveness is toned down and ceases to predominate (...) In reaching its decision, the criminal court does not have to view the work through an art critic's spectacles (which would often ill become it) but must decide whether the work is liable to offend the unsuspecting visitor.
Expert opinion as to the artistic merit of the work in issue is therefore irrelevant at this stage, though it might be relevant to the decision as to what action to take in order to prevent fresh offences (destruction or seizure of the item; Art. 204 § 3 CC. (...)"

"In Swiss law, confiscation is a preventive measure in rem. This is already clear from the legislative text, which classifies Article 58 under the heading 'other measures' - the heading in the margin for Articles 57-62 CC - and not under the subsidiary penalties prescribed in Articles 51-56 CC. () The confiscation of items or assets may admittedly constitute a serious interference with property rights. It must be proportionate and a more lenient order may thus be justified where it achieves the desired aim. Confiscation remains however the rule. It should be departed from only where a more lenient order achieves the desired aim (...) In this case, when the confiscation order was made in 1982, the statutory provision (Article 204 § 3 CC) would normally have required the destruction of the paintings. Giving a reasoned decision, the court preferred a more lenient measure which achieved the aim of security, whilst complying with the principle of proportionality (...). The measure itself should remain in force only as long as the statutory requirements are satisfied (...).
It is true that the Code makes no provision for an order under Article 58 to be subsequently discharged or varied. The legislature probably did not address itself to this question at the time, whereas provision was made whereby other measures, which were admittedly much more serious because they restricted personal liberty, could be re-examined by a court of its own motion (Articles 42-44 CC). It does not follow that discharge or variation is completely illegal. The Federal Court has, moreover, held that a measure should not remain in force where the circumstances justifying it cease to obtain (...).
Accordingly, the view must be taken that an order confiscating a work of art may subsequently be discharged or varied, either because the confiscated item is no longer dangerous and a measure is no longer required, or because the necessary degree of security may be achieved by another more lenient measure (judgment of the Basle-Urban Court of Appeal of 19 August 1980, in the Fahrner case).
Judgments concerning freedom of expression and its scope often refer to Article 10 §§ 1 and 2 (art. 10-1, art. 10-2) [of the Convention].
In this area, the decisions of the Convention authorities have a direct influence on the Swiss legal system, by way of strengthening individual liberties and judicial safeguards(
In this case, where the applicant has availed himself of the possibility of applying for the return of his paintings, the court must consider whether the grounds on which it made the confiscation order in the first place, which restricted J.F. Müller's freedom of expression, are still valid.
While the restriction was necessary in a democratic society in 1982 and was justified by the need to safeguard and protect morality and the rights of others, the court considers, admittedly with some hesitation, that the order may now be discharged. It should be noted that the confiscation measure was not absolute but merely of indeterminate duration, which left room to apply for a reconsideration.
It appears to the court that the preventive measure has now fulfilled its function, namely to ensure that such paintings are not exhibited in public again without any precautions. Those convicted have themselves admitted that the paintings could shock people. Once the order has achieved its aim, there is no reason why it should continue in force.
Accordingly, the artist is entitled to have his works returned to him.
It is not necessary to attach any obligations to this decision. If J.F. Müller decided to exhibit the three paintings again elsewhere, he knows that he would be running the risk of further action by the courts under Article 204 of the Criminal Code.
Finally, it appears that by exhibiting three provocative paintings in a former seminary in 1982, J.F. Müller deliberately intended to draw attention to himself and the organisers. Since then he has become known for more 'demanding' works, to use the terms of the art critic who gave evidence in 1982. Having achieved a certain repute, he may find it unnecessary to shock by resorting to vulgarity. In any event, there is no reason to believe that he will use the three paintings in future to offend other people's moral sensibilities. (...)"

"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."

"In other words, 'destruction', as prescribed by Article 204 § 3 of the Criminal Code, must protect public morality but go no further than that requirement warrants.
In the commonest case, that of pornographic publications devoid of artistic, literary or scientific merit, the destruction will be physical and irreversible, not just because of the lack of any cultural value, but also because, in general, this is the only adequate way of ultimately protecting the public from the danger of the confiscated items (...).
It is quite a different matter when one is dealing, as in the present case, with an irreplaceable or virtually irreplaceable work of art. There is then a clash of two opposing interests, both of them important in terms of the civilisation to which Switzerland belongs: the moral and the cultural interest. In such a case, the legislature and the courts must find a way of reconciling the two. This court has thus held, in applying Article 204, that it must always be borne in mind that artistic creativity is itself subject to certain constraints of public morality, but that there must nonetheless be artistic freedom (...).
It is, accordingly, a matter for the courts to consider in each case in view of all the circumstances, whether physical destruction is essential or whether a more lenient measure suffices. The mandatory requirement of Article 204 § 3 will, therefore, be complied with where the courts order that an obscene item devoid of any cultural value is to be physically destroyed, and, in respect of an item of undoubted cultural interest, where effective steps are taken to withhold it from the general public and to make it available only to a limited number of serious specialists (...).
If such precautions are taken, Article 204 of the Criminal Code will not be applicable to items which are inherently obscene but of genuine cultural interest. A distinction must also be drawn between such items and pure pornography. The cultural interest of an item admittedly does not prevent it from being obscene. But it does require the courts to determine with particular care what steps must be taken to prevent general access to the item, while making it available to a well-defined number of serious connoisseurs; this will comply with the requirements of Article 204 § 3 of the Criminal Code, which, as has been shown, makes destruction mandatory but only as a measure whose effects must be in proportion to the intended aim (...)"

"This principle applies, in particular, where (on account of its distinctiveness) the item subject to confiscation is hard or impossible to replace. Therefore the principle applies more strictly to a work of art (e.g. a painting) than to a weapon used to commit an offence (...). Finally, having regard to its preventive character, the measure should remain in force only for as long as the legal requirements are satisfied (...)."
Accordingly, the view had to be taken that "an order confiscating a work of art may subsequently be discharged or varied, either because the confiscated item is no longer dangerous and the measure no longer required, or because the necessary degree of security may be achieved by another more lenient measure".

"To apply present-day criteria, both parties agree with the court that the public's ideas of obscenity, immorality, indecency, blasphemy, etc. have changed considerably in the last twenty years and have become distinctly more liberal. Although the confiscated painting is undoubtedly liable to offend a great many people's religious sensibilities even today, there is no reason to fear that, by exhibiting it in a private or suitable public place, one would be endangering religious harmony, public safety, morals or public order within the meaning of Article 58 of the Criminal Code (...).
Whether there is a danger thus depends primarily on where the item to be confiscated is liable to end up (...). In this case, the exhibition of the painting in a museum would at present clearly be unobjectionable in the context of Article 58 of the Criminal Code. However, even if the picture were to be returned unconditionally, the likelihood of misuse must be regarded as minimal because Fahrner, who deliberately set out, by means of a provocative exhibition, to draw attention to himself as a painter and to his ideas and works, has since died. There is no reason to believe that the applicants have any intention of using the picture to offend other people's religious sensibilities. At any rate, the picture would not lend itself to such a purpose (Article 261 of the Criminal Code) sufficiently to permit the 1960 confiscation order to stand (...). Any danger of that kind arising from the picture is no longer serious enough to justify action under Article 58 of the Criminal Code. Nor is there any reason to hand this picture over to a scientific collection, i.e. a museum, in order to protect the public and morality. The confiscation order should be discharged and the picture unconditionally returned to the applicants, whose main application is thus granted."

"hold that there has been no violation of Article 10 (art. 10) of the Convention in this case, either in relation to the applicants' conviction and sentence to a fine or as regards the confiscation of the first applicant's paintings".

"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 (art. 10) 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."

"In my view, the Commission should have asked whether, taken together, the two measures" [fine and confiscation] "constituted a violation of his right to freedom of expression as protected by Article 10 (art. 10) of the Convention, and my reply would have been that they did."

"I believe Mr. Müller's fine and the fines imposed on the other applicants for exhibiting the three paintings at Fribourg are a more complex matter since the question arises whether there is any real need, in modern society, to punish such expression of artistic creativity, even though some may find them offensive or even disgusting."

"In the end, though, I voted with the rest of the Commission on this matter, wishing to conform to European Court case-law, particularly Handyside. There the Court pointed out that 'it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals' and that the requirements of morals vary 'from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject'. The Court added that 'by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements'."

1. Although convicting the applicants in criminal proceedings, the Swiss authorities did not order the destruction of the disputed paintings, despite a formal provision in their criminal code.
2. Although they ordered the confiscation of the disputed paintings, the authorities agreed in 1988 to restore these items.

"The Regional Court,
Whereas Baudelaire, Poulet-Malassis and de Broisse have offended against public morality, imposes a fine of 300 Francs on Baudelaire and 100 Francs each on Poulet-Malassis and de Broisse;
Orders the destruction of documents nos. 20, 30, 39, 80, 81 and 87 in the book of documents(

"Je sucerai, pour noyer ma rancoeur, Le népenthès et la bonne ciguAux bouts charmants de cette gorge aiguQui n'a jamais emprisonné de coeur (...)"

"Moi, j'ai la lèvre humide et je sais la science De perdre au fond d'un lit l'antique conscience. Je sèche tous les pleurs sur mes seins triomphants Et fais rire les vieux du rire des enfants. Je remplace, pour qui me voit nue et sans voiles, La lune, le soleil, le ciel et les étoiles !"

"Gentlemen, (, I say to you: take a stand by your judgment in this case against these growing, unmistakable tendencies, against this unhealthy fever which seeks to paint everything, to write everything and to say everything, as though the crime of offending public morality had been abolished and that morality no longer existed.
Paganism had its shameful manifestations which may be found in the ruins of the destroyed cities of Pompeii and Herculanum. However, in the temple and in public places, its statues have a chaste nudity. Its artists follow the cult of plastic beauty; they make harmonious shapes out of the human body and do not depict it as being debased or throbbing in the stranglehold of debauchery; they respected community life.
In our society immersed in Christianity, show at least the same respect."

"...After the title "Les Fleurs du Mal" comes the epigraph: all the author's thinking is there, the entire spirit of the book; it is in a way a second title, more explicit than the first, explaining, commenting and elaborating upon it:
'On dit qu'il faut couler les exécrables choses Dans le puits de l'oubli et au sépulchre encloses, Et que par les escrits le mal résuscité Infectera les moeurs de la postérité; Mais le vice n'a point pour mère la science, Et la vertu n'est pas mère de l'ignorance.'"

"The intimate thoughts of the author are even more clearly expressed in the first poem which he dedicates to the reader as a warning:
'La sottise, l'erreur, le péché, la lésine, Occupent nos esprits et travaillent nos corps. Et nous alimentons nos aimables remords, Comme les mendiants nourrissent leur vermine.
Nos péchés sont têtus, nos repentirs sont lâches; Nous nous faisons payer grassement nos aveux; Et nous rentrons gaiment dans le chemin bourbeux, Croyant par de vils pleurs laver toutes nos taches.
C'est le Diable qui tient les fils qui nous remuent! Aux objets répugnants nous trouvons des appas. Chaque jour vers l'Enfer nous descendons d'un pas, Sans horreur, à travers des ténèbres qui puent.'"

"Gentlemen, change this into prose, delete the rhyme and the caesura, grasp the substance of this powerful and vivid language and the underlying intentions; and tell me if we have ever heard this language being delivered from the Christrian pulpit, from the lips of some fiery preacher; tell me if the same thoughts would not be found, perhaps sometimes even the same expressions, in the homilies of some strict and unsophisticated father of the Church".

"Whereas the prohibited poems do not contain any obscene or even rude term and do not exceed the licence which the artist is permitted(/>Whereas accordingly, the crime of offending public morality is not established (/>Quashes the judgment of 20 August 1857, restores the good name of Baudelaire, Poulet-Malassis and de Broisse (