KKO:2020:68 - Disbandment of an association

Diary number S2018/698

Issued on 22 September 2020

ECLI:FI:KKO:2020:68

Facts of the case and the issue before the Supreme Court

In an action brought before the district court, the National Police Board requested that an unregistered association be disbanded, as its activities were essentially unlawful or at least improper, as its goal was a national socialist state whose ideals were contrary to the Finnish constitution, and as its objectives were inter alia racist, anti-immigrant, antisemitic and restrictive of the rights of sexual minorities. In addition, the association had engaged in Holocaust denial and approved of violence in the activities of the association. The members of the association’s committee contested the action and noted that the association’s activities were within the bounds of the freedoms of speech and of association.

The district court approved the action of the National Police Board and ordered the disbandment of the association. The members of the association’s committee appealed to the court of appeal, which upheld the ruling of the district court. The issue before the Supreme Court was whether the criteria in the Finnish Associations Act for the disbandment or cautioning of an association had been fulfilled.

Applicable law

According to section 1(1) of the Associations Act, an association may be founded for the common realisation of a non-profit purpose. This purpose must not be unlawful or improper. According to section 43(1)(1) of the Act, a court may on the action of the National Police Board order the disbandment of an association if its activities are essentially unlawful or improper. According to the relevant preparatory works, disbandment would not ensue from any single unlawful or improper act. Disbandment could only ensue if the action were continuous and indicative of heedlessness of mandatory legal provisions issued for the protection of the public interest.

The Supreme Court noted that the reference to unlawfulness in section 43(1)(1) of the Associations Act pertained also to the fundamental rights provisions in the Constitution and the provisions of the European Convention on Human Rights (ECHR). The application of the provision did not require that a punishable act be committed in the context of the activities of the association. It was enough that the activities of the association were contrary to the public interest, as established in law. In addition, under the Associations Act, it was a prerequisite for the disbandment of an association that the unlawfulness or impropriety of its activities was of an essential nature.

The freedom of association and the freedom of speech, as fundamental political rights, have been enshrined in sections 12 and 13 of the Constitution of Finland, Articles 10 and 11 ECHR, and Articles 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR). Under the Constitution, the freedom of association entails the right to found an association, to be or not to be a member of an association and to participate in the activities of an association, all without need for prior permission. The freedom of speech entails the right to express, publish or receive information, opinion, or other communication without prior restraint. The disbandment of an association is an intervention against the said rights. Under the restriction provisions in Articles 10 and 11 ECHR, the freedoms of association and of speech could in given circumstances be restricted by statutory law. Accordingly, the rights of association and of speech are not absolute.

Due note was to be taken also of Article 17 ECHR on the prohibition of abuse of rights. The point of the prohibition is to prevent such abuse of human rights that aims for the destruction or limitation of a right or freedom set forth in the Convention, or of its central objectives.

By its language, Article 11 ECHR protects solely the freedom of peaceful assembly and association. It has been held by the Constitutional Law Committee of the Parliament of Finland that unlawful activity e.g. for the purpose of promoting or supporting crime does not constitute such exercise of the freedom of association that would be protected by section 13 of the Constitution (Committee papers PeVL 7/2002 vp p. 3 and PeVL 10/2000 vp p. 3).

In conclusion, the Supreme Court held that the permissibility of restrictions of fundamental rights and human rights was to be balanced against the degree to which the activity at issue was entitled to the protection afforded by the said rights.

Evidence on the activities of the association and the assessment by the Supreme Court

It was undisputed or had been otherwise established that the objectives of the association included national socialism, the restriction of the freedom of speech and a change of representative democracy to the end that the association and its representatives would be in power. In addition, the association had declared as an objective to interfere very severely with other people’s freedom of association and activity. It was also undisputed that the means towards these ends, as listed on the association’s website, included force, fighting, aggression, and war for the separation of Finland from the European Union, should war be necessary in order to secure the liberty of the North. Moreover, it was undisputed that the association considered Adolf Hitler a great man, denied and downplayed the Holocaust, and alleged that a Holocaust survivor was a liar. The Supreme Court held that, in effect, the objective of the association was a political system similar to that prevailing in Nazi Germany. The association sought to establish a social system where one ethnic group was superior to the others and where the fundamental rights and human rights of others were severely restricted. The Supreme Court held that these objectives were contrary to the fundamental tenets of a democratic society, as established in the Constitution and the Criminal Code, as well as to the values underlying these enactments.

Texts describing the objectives of the association had been published on its website. Publication of material on a website is to be deemed an activity of the association. The Supreme Court held that the texts contained statements aiming to demean, libel, or suppress various groups of people. These texts were conducive to raising public intolerance, repugnance, or even hate towards the targeted groups. Some of the material was racist. The texts reinforced prejudicial attitudes towards entire groups of people and contained some false statements. The texts were not within the bounds of the freedom of speech e.g. as acceptable, if harsh, criticism of immigration policy or as permissible exaggeration or provocation. The Supreme Court held that the texts had been directed at various ethnic groups in a manner criminalised as ethnic agitation in the Criminal Code of Finland.

The stated activities of the association did not include violence, and the association’s internal guidelines prohibited violence otherwise than in self-defence. That being said, it had been established in the case that the leadership or the active members of the association had committed acts of assault of various degrees of severity, obstruction of public authority and violations of political rights. The Supreme Court noted that there had been several violent and disruptive acts resulting in criminal convictions, and that the acts had in the main been committed in the political or ideological events of the association or other organisers. The association had in no way disavowed the acts, but rather they had received appreciative treatment e.g. in the association’s annual report or texts on its website. Members convicted of violent crime had been allowed to continue participation in the activities of the association, and the acts or judgments had not ensued in disciplinary action within the association. The Supreme Court held that violence had been at least tacitly approved as a method for the pursuit of the activities of the association. The violence and the commission of the other forms of crime mentioned above was to be deemed a part of the activity of the association. Such activity was unlawful.

Ruling

As described above, the Supreme Court held that the activity of the association was to be deemed unlawful. The Court noted that such unlawfulness violated or attempted to violate fundamental rights and human rights, as enshrined in the Constitution and in international human rights treaties. Some of the activity was directly contrary to the Criminal Code. It was clear that such unlawfulness was of an essential nature, as referred to in section 43(1)(1) of the Associations Act. The activities that the Supreme Court had held to be unlawful formed a significant part of the activities of the association overall. The association pursued merely little other activity and even this was in order to promote the unlawful objectives of the association. The Supreme Court held that the unlawful activities were such an important part of the association’s activities as a whole that the criterion of essentiality was fulfilled also in this respect. It having been held that the association’s activities had been unlawful as provided in section 43(1)(1) of the Associations Act, there was no need to assess the possible impropriety of those activities.

Moreover, the Supreme Court noted that to invoke the freedom of association or the freedom of speech in order to disrupt parliamentary democracy, to promote national socialism as an ideology, or to justify the defamation or demeaning of an ethnic group was an abuse of these rights, as the objective was to cancel democratic government or to materially undermine other fundamental rights and human rights. Accordingly, the objectives and the activities of the association were not to be afforded the protection of the freedoms of association or of speech.

The Supreme Court held that, in the main, the activities of the association had involved such essential unlawfulness and violations of the public interest that a caution was to be deemed an insufficient remedy; hence, an order for the disbandment of the association was issued.