GRAND CHAMBER

CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND

(Application no. 16354/06)

JUDGMENT

STRASBOURG 

13 July 2012

This judgment is final but may be subject to editorial revision.

In the case of Mouvement raëlien suisse v. Switzerland,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Nicolas Bratza, President,
Françoise Tulkens,
Josep Casadevall,
Corneliu Bîrsan,
Egbert Myjer,
Mark Villiger,
Päivi Hirvelä,
András Sajó,
Mirjana Lazarova Trajkovska,
Ledi Bianku,
Ann Power-Forde,
Mihai Poalelungi,
Nebojša Vučinić,
Kristina Pardalos,
Ganna Yudkivska,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Michael O’Boyle, Deputy Registrar,

Having deliberated in private on 16 November 2011 and on 9 May 2012,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 16354/06) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association constituted under Swiss law, Mouvement raëlien suisse (“the applicant association”), on 10 April 2006.

2. The applicant association was represented by Mr E. Elkaim, a lawyer practising in Lausanne (Switzerland). The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice.

3. The applicant association alleged that the banning of its posters by the Swiss authorities had breached its right to freedom of religion and its right to freedom of expression, as guaranteed by Articles 9 and 10 of the Convention respectively.

4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 15 May 2008 the Court decided to give notice of the application to the Government and, under former Article 29 § 3 of the Convention, to examine the admissibility and merits at the same time.

5. On 13 January 2011 a Chamber of that Section composed of the following judges: Christos Rozakis, Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, and also of Søren Nielsen, Section Registrar, delivered a judgment in which it found, by five votes to two, that there had been no violation of Article 10 of the Convention and that there was no need to examine separately the complaint under Article 9. The dissenting opinion of Judges Rozakis and Vajić was appended to the judgment.

6. On 12 April 2011 the applicant association requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 75. On 20 June 2011 the panel of the Grand Chamber accepted that request.

7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. Mihai Poalelungi’s term of office expired on 30 April 2012. He continued to sit in the case (Article 23 § 3 of the Convention and Rule 24 § 4).

8. The applicant association and the Government each filed further written observations (Rule 59 § 1). In addition, third-party comments were received from the non-governmental organisation Article 19, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).

9. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 November 2011 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government
MrF. Schürmann, Head of European law and international
human rights section, Federal Office of Justice,
Federal Police and Justice Department,Agent,
MrA. Tendon, Lawyer, Deputy Head of the Legal Department
of the Canton of Neuchâtel,
MsD. Steiger Leuba, Technical adviser, European law and
international human rights section, Federal Office
of Justice, Federal Police and Justice Department, Advisers;

(b) for the applicant association
MrE. Elkaim, lawyer,
MrN. Blanc, associate lawyer,Counsel,
MrM.P. Chabloz, head and spokesman of the Mouvement
raëlien suisse,Adviser.

The Court heard addresses by Mr Elkaim and Mr Schürmann, and also their replies to certain questions from judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant association and the Raelian Movement

10. The applicant association, which was set up in 1977, is a non-profit association registered in Rennaz (Canton of Vaud). It is the national branch of the Raelian Movement, an organisation based in Geneva and founded in 1976 by Claude Vorilhon, known as “Raël”. According to its constitution, its aim is to make the first contacts and establish good relations with extraterrestrials.

11. According to the information available on the applicant association’s website at the time of the adoption of the present judgment, the Raelian Movement’s doctrine is based on Raël’s alleged contact with the “Elohim”, extraterrestrials with “advanced technology”, who are said to have created life on earth and a number of world religions, including Christianity, Judaism and Islam. The Raelian Movement’s followers believe that scientific and technical progress is of fundamental importance and that cloning and the “transfer of conscience” will enable man to become immortal. In that connection the Raelian Movement has expressed opinions in favour of human cloning.

12. Some texts of the Raelian Movement or works written by Raël himself advocate a system of government called “geniocracy”, a doctrine whereby power should be entrusted only to those individuals who have the highest level of intellect.

13. In his book Sensual Meditation Raël defines this concept as an “instruction manual” given to humans by extraterrestrials, enabling each person “to discover his/her body and especially to learn how to use it to enjoy sounds, colors, smells, tastes, caresses, and particularly a sexuality felt with all one’s senses, so as to experience the cosmic orgasm, infinite and absolute, which illuminates the mind by linking the one who reaches it with the universes he/she is composed of and composes”.

B. The relevant proceedings

14. On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97 cm by 69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.

15. On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral.

16. In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”.

17. On 27 October 2003 the Neuchâtel Land Management Directorate upheld that decision. It noted that, for the Raelian Movement, life on earth had been created by extraterrestrials, who were also the founders of the various religions and were capable of saving the world, and accepted that this amounted to a religious conviction protected by freedom of conscience and belief. It further accepted that the Regulations constituted a sufficient legal basis in such matters. The Directorate observed that there was nothing offensive in the text and picture on the poster, or in the allusion to extraterrestrials. However, it pointed to the fact that the Raelian Movement advocated “geniocracy” (a political model based on intelligence) and human cloning. Moreover, in a judgment of 13 February 1998 the Fribourg Cantonal Court had found that the movement also “theoretically” advocated paedophilia and incest, especially in the works of Raël himself. The practice of “sensual meditation” could also easily lead to abuse. In addition, the website of Clonaid, to which the Raelian Movement’s site contained a link, offered specific services in the area of cloning, and the notion of eugenics was contrary to the principle of non-discrimination. The poster campaign was prejudicial to morals and to the rights of others. In any event, the Raelian Movement had other means by which to disseminate its ideas.

18. The applicant association appealed to the Administrative Court for the Canton of Neuchâtel. It claimed, among other things, that the mere defence of “geniocracy”, cloning and sensual meditation were not offensive opinions. Moreover, it argued that the movement denounced paedophilia through its association Nopedo. The refusal to authorise its poster thus amounted purely and simply to censorship, especially as the applicant association’s website was, in any event, accessible through a search engine.

19. In a judgment of 22 April 2005 the Administrative Court dismissed the appeal, after acknowledging, however, that the applicant association defended a global vision of the world and was entitled to both freedom of opinion and religious freedom. It found first that the impugned measure was based on the Administrative Regulations, which constituted a law in the substantive sense, and that the poster had to be assessed in relation to the message conveyed by the books and websites that could be accessed from the movement’s website. The services proposed by Clonaid were manifestly contrary to Swiss public order. The court further observed that criminal complaints had been filed against the Raelian Movement alleging the existence of sexual practices that were intended to systematically corrupt young teenagers. The content of the works on “geniocracy” and “sensual meditation” could lead certain adults to sexually abuse children, the child being described in certain works as a “privileged sexual object”. The comments on “geniocracy” and the criticisms of contemporary democracies were likely to undermine public order, safety and morality. For those reasons the Administrative Court concluded that it was not justifiable to authorise the dissemination of such ideas on the public highway.

20. The applicant association lodged a public-law appeal against that judgment with the Federal Court, requesting that it be set aside and that the case be referred back to the respondent authority for a new decision.

21. In a judgment of 20 September 2005, served on the applicant association on 10 October 2005, the Federal Court dismissed the appeal. The relevant passages read as follows:

“The Directorate, and subsequently the Administrative Court, acknowledged that the [applicant] association could rely on the right to freedom of religion (Art. 15 of the Constitution, Art. 9 ECHR and Art. 18 UN Covenant II), in so far as it defended a global vision of the world, especially as regards its creation and the origin of the various religions. The City of Neuchâtel disputes this, noting that the aim of the [applicant] association as defined in Article 2 of its Constitution, is not religious in nature. According to a report on ‘sects’ produced in 1995 for the French National Assembly, the Raelian Movement is classified among the movements that present dangers for the individual, especially on account of the excessive financial demands made of its members and practices that cause bodily harm, and also dangers for the community, in particular through an antisocial discourse. Many of the movement’s publications contain passages described as offensive.

There is no need to ascertain whether a religious movement may, on account of the dangers it represents, be precluded from relying on the right to freedom of religion, or whether the [applicant] association presents such dangers. Indeed, the parties agree that the [applicant] is entitled to rely on the right to freedom of opinion. As to the conditions in which such freedom may be restricted, as laid down in Article 36 of the Constitution, it makes little difference whether Article 15 or Article 16 of the Constitution is relied on (see also Article 9 § 2 and Article 10 § 2 ECHR). The [applicant] does not argue that the impugned measure impairs the very essence of its religious freedom, or that the restrictions on that freedom are, in the circumstances of the case, subject to stricter conditions. On the contrary, the [applicant] relies on the principles of proportionality and public interest, without distinction as to the constitutional right invoked.

...

5.2 According to case-law, citizens do not have an unconditional right to an extended use of public space, in particular when a means of advertising on the public highway involves activity of a certain scale and duration, and excludes any similar use by third parties (Federal Court judgment 128 I 295 point 3c/aa p. 300 and the judgments cited therein). When it wishes to grant authorisation for extended or private use of public space, or when it supervises the conditions under which a licence is used, the State must nevertheless take into account, in balancing the interests at stake, the substantive content of the right to freedom of expression (Federal Court judgment 100 Ia 392 point 5 p. 402).

5.3 In the present case, the grounds given by the Cantonal Court to confirm the refusal by the City of Neuchâtel relate to respect for morality and the Swiss legal order. The Administrative Court took the view that it was necessary to take into account not only the content of the poster but also the ideas conveyed by the Raelian Movement, together with the works and websites that could be accessed from the movement’s website. Three different criticisms are thus directed against the [applicant] association. Firstly, the [applicant] association’s website contains a link to that of Clonaid, via which this company offers specific cloning-related services to the general public and announced, in early 2003, the birth of cloned babies. Cloning is prohibited under Swiss law, pursuant to Art. 119 of the Constitution and to the Medically-Assisted Reproduction Act (RS 814.90). Secondly, the Administrative Court referred to a judgment of the District Court of La Sarine, which mentioned possible sexual abuse of children. Numerous members of the movement had, moreover, been investigated by the police because of their sexual practices. Thirdly, the promotion of ‘geniocracy’, a doctrine according to which power should be given to the most intelligent individuals, and the criticism consequently directed at contemporary democracies, was likely to undermine the maintaining of public order, safety and morality.

5.4 The [applicant] no longer contests, at this stage, the existence of a sufficient legal basis, namely, in this case, Article 19 of the Regulations. A municipal by-law offers the same guarantees, in terms of democratic legitimacy, as a Cantonal law, and thus constitutes a sufficient legal basis (judgment 1P.293/2004 of 31 May 2005, point 4.3, Federal Court judgment 131 I xxx; Federal Court judgment 122 I 305, point 5a, p. 312; 120 Ia 265, point 2a, pp. 266-267 and the references cited therein). The [applicant] invokes, however, the principle of public interest and criticises the respondent authorities for going beyond the content of the poster and engaging in an assessment of the [applicant] association’s activities. It argues that if it had generally engaged in conduct that was immoral or in breach of public order, it would have been dissolved by the courts pursuant to Article 78 of the Civil Code. If no decision had been taken to that effect, it would not be possible to prohibit it from publicising its philosophy and world vision.

5.5 The poster in itself does not contain anything, either in its text or in its illustrations, that was unlawful or likely to offend the general public. Above the central drawing representing extra-terrestrials appears the text ‘The Message from Extraterrestrials’, without any explanation. Below that, the [applicant] association’s website address and a telephone number are printed in bolder type. The phrase ‘Science at last replaces religion’ is admittedly capable of offending the religious beliefs of certain persons, but it is merely the expression of the movement’s doctrine and cannot be described as particularly provocative.

The poster as a whole can thus clearly be seen as an invitation to visit the website of the [applicant] association or to contact it by telephone. Faced with such advertising, the authority must examine not only the acceptability of the advertisement’s message as such, but also that of its content. It is therefore legitimate to ascertain whether the website in question might contain information, data or links capable of offending people or of infringing the law.

Moreover, contrary to the [applicant]’s allegation, an association may be criticised for opinions or activities which, without constituting grounds for dissolution within the meaning of Article 78 of the Civil Code, nevertheless justify a restriction on advertising.

5.5.1 As regards cloning, it was not the opinions expressed by the [applicant] association in favour of such practices (particularly in the book Yes to Human Cloning, published in 2001 and available via the [applicant]’s website) that were penalised, but the link with the company Clonaid, set up by the association itself, which offers various practical services in this area for payment. The issue is thus not simply, contrary to what the [applicant] has argued, the expression of a favourable opinion of cloning, protected by Article 16 of the Constitution, but the practice of that activity, in breach of its prohibition under Article 119 § 2 (a) of the Constitution. That provision, accepted in 1992 by the majority of the population and of the Swiss Cantons (in the form of Article 24 novies (a) of the Constitution), falls in particular within a policy of protection of human dignity, according to the conception thereof that is generally shared in this country (FF 1996 III 278; see also the response of the Federal Council to a question from R. Gonseth of 9 June 1997). The [applicant] does not contest the unlawfulness of human cloning, especially if it is carried out for commercial gain (section 36 Medically Assisted Reproduction Act; Art. 119 § 2 (e) of the Constitution). Nor can it seriously contest the fact that the link to the Clonaid website contributes to the promotion of an unlawful activity, and goes further than the mere expression of an opinion. On that first point, which already justifies the decision under appeal, the [applicant] has not put forward any real relevant argument within the meaning of section 90 § 1 (b) of the Judicial Organisation Act.

5.5.2 On 15 October 2003 the Intercantonal Beliefs Information Centre provided information on the Raelian Movement. This information shows, among other things, that the movement apparently has a political mission. Virulently attacking democracies, which are referred to as ‘mediocracies’, it defends the notion of ‘geniocracy’, a political model based on individuals’ level of intelligence. A world government would consist of geniuses, elected by individuals whose intelligence is 10% higher than average. Admittedly, ‘geniocracy’ is presented as a utopia and not as a genuine political project; contrary to the finding of the Administrative Court, this doctrine does not appear likely to undermine public order or safety.

However, apart from the fact that the doctrine appears to be largely inspired by eugenics, it is manifestly capable of offending the democratic and anti-discriminatory convictions that underpin the rule of law (see, in particular, the wording of the preamble to the Federal Constitution of 18 April 1999, together with Article 8 of the Constitution concerning equality and the prohibition of discrimination).

5.5.3 Lastly, according to the judgment under appeal, it cannot be considered that the Raelian Movement advocates paedophilia. However, numerous members have apparently been investigated by the police on account of their sexual practices. According to a judgment delivered on 28 November 1997 by the District Court of La Sarine, concerning a right of reply requested by the Mouvement Raëlien Suisse, the remarks made by Raël in his works could lead certain adults to commit acts of sexual abuse against children. The judgment quotes extracts from works by Raël that can be downloaded from the website of the [applicant] association, according to which the sexual education of children should not only be theoretical but should consist of a sensual education aimed at showing them how to derive pleasure from it. That judgment further indicates that, notwithstanding the denial subsequently issued on this point, certain articles published in the quarterly newsletter Apocalypse described the child as a ‘privileged sexual object’. Lastly, it is stated that a friend and a member of the Raelian Movement were convicted by the Vaucluse Assize Court and sentenced to five years’ imprisonment for sexually assaulting a twelve-year-old girl. The judgment was confirmed on 13 February 1998 by the Fribourg Cantonal Court. An ordinary appeal and a public-law appeal by the Mouvement Raëlien were dismissed on 24 August 1998 by the Federal Court, having regard in particular to the equivocal writings of the movement’s founder or members (judgments 5P.172/1998 and 5C.104/1998).

The case-file, moreover, contains various documents concerning criminal proceedings brought against members of the [applicant association] for sexual assault. A judgment of 24 January 2002 of the Lyons Court of Appeal clearly shows that acts of sexual abuse were committed by leaders of the movement against minors. The movement’s leaders are thus said to have advocated ‘a broad sexual freedom strongly encouraging commission of the act’; they had thus corrupted young teenagers by supposedly philosophical discourse, by increasingly specific sexual fondling and by inciting them more and more forcefully, in order to satisfy ‘their sexual needs and fantasies with young girls who had just turned fifteen, and who were changing partners very quickly’.

The fact that the impugned articles date from the 1980s and that there has been no conviction in Switzerland does not negate the involvement of members of the [applicant] association in acts leading to criminal sanctions. The [applicant] does not dispute the fact that certain passages in the books available via its website could lead adults to abuse children. On that point also, the [applicant]’s arguments do not address the grounds set out in the decision under appeal. Since acts of abuse have indeed been recorded on the part of certain members of the Raelian Movement, the argument that paedophilia is strongly condemned by the movement’s official doctrine is not decisive.

5.6 Having regard to the foregoing, the refusal issued to the [applicant] appears to be justified by sufficient public-interest grounds, because it is necessary to prevent the commission of acts constituting criminal offences under Swiss law (reproductive cloning and sexual acts with children). Moreover, certain passages in the works available via the [applicant]’s website (in particular about the ‘sensual awakening’ of children, and ‘geniocracy’) are likely to be seriously offensive to readers.

5.7 The [applicant] invokes the principle of proportionality. It points out that the poster itself contains nothing that is contrary to public order, and maintains that the measure is not appropriate to the aim pursued.

5.7.1 In accordance with Article 36 § 3 of the Constitution, any restriction on a fundamental right must be proportionate to the aim pursued. It must be appropriate to the fulfilment of that aim and any damage to private interests must be kept to a minimum (Federal Court judgment 125 I 474, point 3, p. 482, and the references cited therein).

5.7.2 In the present case, the public interest does not only consist in limiting the publicity given to the [applicant] association’s website, in view of the reservations expressed above about public order and morality; it is even more important to ensure that the State does not provide any support for such publicity by making public space available for it, which might suggest that it endorses or tolerates the opinions or conduct in question. From that perspective, the prohibition of the posters is appropriate to the aim pursued. Furthermore, the measure criticised by the [applicant] is confined to the display of posters in public spaces. The [applicant] association remains free to express its beliefs by many other means of communication at its disposal (see the Murphy judgment of 10 July 2003, ECHR 2003-IX, p. 33, § 74).

5.7.3 The [applicant] takes the view that the authority should have suggested that it make changes to the poster in order to make the content acceptable. However, even though it was aware of the objections raised against its poster campaign, the [applicant] itself never proposed a version of the poster that was likely to be authorised. The Administrative Court, for its part, found that the poster should be prohibited even without the reference to the website, but this seems questionable; there is no doubt, however, that the removal of the address in question would deprive the poster campaign of its object, which, as has been shown, is essentially to advertise the website itself. It is therefore difficult to see what comprehensible meaning the poster could have had without that reference to the website and to the telephone number.

5.7.4 The impugned measure therefore respects the principle of proportionality, in all its aspects. It constitutes, for the same reasons, a restriction that is necessary ‘in a democratic society’, in particular for the protection of morals, within the meaning of Article 9 § 2 and Article 10 § 2 of the ECHR.”

C. The applicant association’s poster campaigns in other Swiss cities

22. Posters of a similar design to that concerned by the present case – also containing the Raelian Movement’s website address and a telephone number but a different text, namely “The true face of God” – were authorised in December 1999 in a number of Swiss cities such as Zurich and Lausanne. The applicant association was also able to conduct further campaigns with posters of other designs – some of which indicated the Raelian Movement’s website address – between 2004 and 2006 in various Swiss towns and cities other than Neuchâtel. However, in October 2004, the town council of Delémont refused to authorise a poster that the applicant association wished to display with the wording “God does not exist”.

II. RELEVANT LAW AND PRACTICE

A. Domestic law

1. The Constitution

23. Article 119 of the Federal Constitution of 18 April 1999 concerns reproductive medicine and gene technology involving human beings. That provision reads as follows:

“Human beings shall be protected against the misuse of reproductive medicine and gene technology.

The Confederation shall legislate on the use of human reproductive and genetic material. In doing so, it shall ensure the protection of human dignity, privacy and the family and shall adhere in particular to the following principles:

(a) All forms of cloning and interference with the genetic material of human reproductive cells and embryos are unlawful.

(b) Non-human reproductive and genetic material may neither be introduced into nor combined with human reproductive material.

(c) Methods of medically assisted reproduction may be used only if infertility or the risk of transmitting a serious illness cannot otherwise be overcome, but not in order to conceive a child with specific characteristics or for research purposes; the fertilisation of human egg cells outside a woman’s body is permitted only under the conditions laid down by the law; no more human egg cells may be developed into embryos outside a woman’s body than are capable of being immediately implanted.

(d) The donation of embryos and all forms of surrogate motherhood are unlawful.

(e) Trade in human reproductive material and in products obtained from embryos is prohibited.

(f) The genetic material of a person may be analysed, registered or made public only with the consent of the person concerned or if the law so provides.

(g) Everyone shall have access to data relating to their ancestry.”

24. In a response of 21 May 2003 to a Swiss National Council Member, who had asked whether measures should be taken against the Raelian Movement under paragraph (a) of that Article, the Federal Council stated:

“As, in Switzerland, the Raelian Movement is merely calling for the social recognition of cloning techniques – or for the lifting of the ban on cloning – its activity falls within the freedom of opinion ...”

2. Neuchâtel Administrative Regulations

25. In Neuchâtel, as in other Swiss municipalities, the management of posters in public areas is entrusted to a private company. The municipal council granted such company a concession for this purpose under the Administrative Regulations of 17 January 2000, of which the relevant provisions read as follows:

Article 18

“1. The installation of billboards and advertising panels in public areas, and in private areas visible from public areas, shall be subject to authorisation.

2. Such authorisation shall be granted only if the urban-planning and safety conditions are satisfied.”

Article 19

“1. The Police may prohibit posters that are unlawful or immoral.

2. Flyposting shall be prohibited.”

Article 20

“An exclusive right in respect of posters displayed within the area of the municipality may be granted by the municipal council.”

B. International law

26. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the “Convention on Human Rights and Biomedicine”, opened for signature on 4 April 1997 in Oviedo (the “Oviedo Convention”), entered into force on 1 December 1999. It has applied to Switzerland since 1 November 2008.

27. The Additional Protocol to the Oviedo Convention, opened for signature on 12 January 1998 in Paris, entered into force on 1 May 2006 and has been applicable to Switzerland since 1 March 2010. It prohibits “any intervention seeking to create a human being genetically identical to another human being, whether living or dead”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

28. The applicant association claimed that the measures taken by the Swiss authorities to prohibit the display of its posters had breached its right to freedom of expression as guaranteed by Article 10 of the Convention. That provision reads as follows:

“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. ...

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.”

A. The Government’s preliminary objection

29. In their written and oral observations before the Grand Chamber, the Government requested the Court to declare the application inadmissible as manifestly ill-founded. In the Government’s submission, the Court could declare manifestly ill-founded a complaint which had been examined in substance by the competent national bodies in proceedings that met all the conditions of fairness and were not arbitrary. The Government emphasised that, in such a case, the Court should not substitute its own assessment of the facts for that of the numerous national authorities which had given decisions during the proceedings in question.

30. The Court reiterates that, in the context of Article 43 § 3 of the Convention, the “case” referred to the Grand Chamber covers all the aspects of the application that have been declared admissible by the Chamber (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001‑VII). However, even after the decision of a Chamber to declare a complaint admissible, the Grand Chamber may also examine, where appropriate, issues relating to the admissibility of the application, for example by virtue of Article 35 § 4 in fine of the Convention, which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”, or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage (see K. and T. v. Finland, cited above, § 141, and Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003‑V).

31. In the present case, the Grand Chamber would point out that the Chamber took the view in its judgment that the application was not “manifestly ill-founded within the meaning of Article 35 § 3 of the Convention” (see paragraph 22 of the Chamber judgment). It does not see any reason to depart from that conclusion, especially as the issues raised by the Government in this connection are more relevant to the examination of the merits.

32. Accordingly, the Court dismisses the Government’s preliminary objection.

B. Compliance with Article 10 of the Convention

1. The Chamber judgment

33. In its judgment of 13 January 2011 the Chamber first found that the prohibition of the posters in question constituted an interference with the applicant association’s freedom of expression. In the Chamber’s view, such interference was prescribed by law and pursued the legitimate aims of prevention of crime, protection of health and morals and protection of the rights of others. Turning then to the necessity of the interference, the Chamber, after noting that it found itself confronted for the first time with the question whether the domestic authorities should allow an association, by making public space available to it, to disseminate its ideas through a poster campaign, emphasised that whilst it was not in dispute that the poster in question contained nothing unlawful or shocking, either in its text or in its illustrations, it had displayed the applicant association’s website address. Taking into account the general context of the poster, and in particular the ideas imparted by the website and the links to other sites from that website, the Chamber pointed out that this modern means of conveying information and the fact that it was accessible to everyone, including minors, would have multiplied the impact of the poster campaign. Observing that the Swiss courts had carefully reasoned their decisions, and also taking into account the limited scope of the impugned ban, which did not extend to the association itself or to its website, the Chamber took the view that the competent authorities had not overstepped the wide margin of appreciation afforded to them as regards regulation of the extended use of public space. The Chamber thus held that there had been no violation of Article 10 of the Convention.

2. Submissions of the parties and the third-party intervener

(a) The applicant association

34. The applicant association emphasised at the outset that, in finding that Switzerland had such a wide margin of appreciation in regulating the extended use of public space, the Chamber had endorsed a discretionary policy on the part of the relevant authorities. It would thus suffice for a city or a State to say that it did not wish its name to be associated with certain non-majority but lawful ideas in order to justify a systematic refusal and oppose the expression of such ideas in public on a permanent basis. The applicant association referred, in this connection, to the position adopted by the Court in Women On Waves and Others v. Portugal (no. 31276/05, 3 February 2009), where the Court had criticised a ban on disseminating ideas contrary to those of the majority. Similarly, in a judgment of 22 February 2011 (no. 1 BvR 699/06), the German Constitutional Court had rejected the argument that a ban on the distribution in an airport of leaflets criticising deportation policy was justified by a concern to maintain a pleasant atmosphere. That court had further held that it could not accept prohibitions intended to prevent the expression of opinions not shared by the authorities.

35. The applicant association asserted that it was a lawfully constituted association under Swiss law and that there had never been any criminal sanctions against it or any measures taken to have it banned. In its submission, since it was not disputed that the impugned poster did not in itself contain anything that was illegal or might offend the public, the basis of the poster ban stemmed from the fact that the poster referred to the Raelian Movement’s website and thus made a link with the ideas expressed on that site. The applicant association argued that it found itself in a situation where it was prevented from disseminating its ideas through posters on the ground that there were other means of communication it could use, in particular the Internet, but when it displayed the address of its website on a poster, it was prohibited from doing so on the pretext that this created a link with its ideas, which were allegedly dangerous for the public. In the applicant association’s submission, the approach taken by the Swiss authorities, and endorsed by the Chamber, was tantamount to complicating excessively, or even preventing, any publicity for or dissemination of its ideas.

36. As regards those ideas, which the Swiss authorities and the Chamber had found to be capable of justifying the poster ban, the applicant association reiterated that there was nothing illegal in expressing favourable views about cloning or “geniocracy”. It pointed out that, whilst it had expressed opinions in favour of cloning, it had never taken part in any therapeutic or experimental acts related to human cloning. As regards the concept of “geniocracy”, it stated that the interference with its rights was all the more serious as neither the impugned poster nor the Raelian Movement’s website referred to it. The applicant association explained that this concept came from a book advertised on the website that contained philosophical opinions and that everyone was free to agree or disagree with them.

37. Turning to the allegations that the Raelian Movement’s ideas had given rise to sexual abuse, the applicant association claimed that no police or judicial authority had ever had to act on any case of paedophilia or sexual abuse connected in any way to the movement or one of its members. On the contrary, it claimed that it had always, without hesitation, expelled any member against whom there had been even the slightest suspicion of conduct contrary to the law on the protection of minors.

38. The applicant association concluded that there was no pressing need to prohibit the poster just because it mentioned a website address. Pointing out that Article 10 of the Convention also protected the form in which ideas were conveyed (it cited Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001‑III), and sharing the opinion of the dissenting judges Rozakis and Vajić, according to whom the authorities’ margin of appreciation was narrower when it came to negative obligations (Women On Waves and Others, cited above, § 40), the applicant association argued that there had, in the present case, been a violation of Article 10 of the Convention.

(b) The Government

39. The Government unreservedly agreed not only with the fundamental principles of freedom of expression reiterated by the Chamber but also with its application of those principles. In their submission, the Chamber had correctly balanced the interests at stake. They argued that the following points should be taken into account.

40. As regards, first, the provision of public space, the Government argued that individuals did not have an unconditional right to the extended use of such space, in particular for the purpose of advertising involving activity of a certain scale and duration, and excluding any similar use of that space by third parties. Pointing out that the impugned poster was not of a political nature, the Government agreed with the findings of the domestic authorities, especially the view that it was necessary to examine not only the advertisement’s message as such, but also its content, thus including the website reference. In this connection the Government endorsed the Chamber’s reasoning that the impact of the posters in question would have been multiplied as a result of the reference to the Raelian Movement’s website address.

41. As regards the extent of the margin of appreciation, the Government emphasised that the ideas disseminated in the various publications obtainable through the Raelian Movement’s website were capable of offending the religious beliefs of certain persons, and that the authorities had a wide margin of appreciation in that sphere (they cited Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003‑IX). In that connection, the Government criticised the dissenting opinion annexed to the Chamber judgment, considering that it placed too much weight on the distinction between positive and negative obligations in determining the extent of the margin of appreciation. In the Government’s submission, the present case fell into the category of cases where the characterisation of the obligation as negative or positive depended on how the question was formulated: whether the authorities were criticised for having done something or for failing to do something. They admitted that it would be different if, unlike the situation in the present case, access to public space were not subjected to any restriction or authorisation.

42. Turning to the examination of the legitimate aims pursued by the disputed restriction, the Government agreed with the analysis of the Chamber, which had approved the arguments of the four national authorities called upon to examine the refusal issued by the police to the applicant association. As regards the applicant association’s opinions about the “sensual awakening” of children, the Government referred to various proceedings brought against members of the Raelian Movement for acts of sexual abuse (Vaucluse Assize Court, Lyons and Colmar Courts of Appeal, investigating judge in Versailles). In their view, that list of decisions strongly suggested that certain passages of publications obtainable through the movement’s website could lead adults to commit acts of sexual abuse against children.

43. As to the question of cloning, the Government drew attention to the relationship between the applicant association and the company Clonaid, set up by Raël, which they alleged offered various practical and fee-paying services in the area of cloning, a practice prohibited by the Federal Constitution and criminal legislation. The presence of a link to the Clonaid website contributed to the promotion of an unlawful activity, thus going further than the mere expression of an opinion.

44. As regards “geniocracy”, the Government pointed out that, without as such specifically undermining public order or safety, this concept might offend the democratic and anti-discriminatory beliefs on which the principle of the rule of law was based. They agreed with the Federal Court that, even though “geniocracy” could be seen as a utopia and not as a real political project, it appeared to be inspired largely by eugenics and was at odds with democratic principles.

45. The Government lastly observed that the scope of the prohibition was limited. Agreeing with the position of the Chamber in this connection, they took the view that the applicant association was not prevented from disseminating its doctrine by the numerous other means of communication available to it, including the Internet. The Government emphasised in this connection that there had never been any question of banning the Raelian Movement’s website or the movement itself. They took the view, however, that a distinction should be drawn between the purpose of the association, which could be quite lawful, and the means used to achieve it, which could for their part be unlawful.

46. For all these reasons, the Government requested the Grand Chamber to confirm the Chamber’s judgment and find that there had been no violation of Article 10.

(c) The third party

47. The organisation Article 19 requested the Court to make a careful examination of the margin of appreciation that was to be afforded to States for restrictions on freedom of expression in cases involving the dissemination of information on the Internet. In its view, the importance of freedom of expression on the Internet under international law meant that the State’s margin of appreciation in this area should be a narrow one. As regards, more specifically, the question of hyperlinks to other sites, the organisation Article 19 referred to comparative-law material concerning judicial decisions in the United Kingdom, Germany and the United States, in particular, showing that a measure requiring the removal of a link without first addressing the source of the allegedly illegal content would always be a disproportionate step.

3. The Court’s assessment

(a) General principles

48. The fundamental principles concerning freedom of expression are well established in the Court’s case-law. The Chamber judgment, referring to the cases of Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007‑V) and Steel and Morris v. the United Kingdom (no. 68416/01, § 87, ECHR 2005-II), reproduced them as follows (§ 49):

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ....”

(b) Application of the above principles to the present case

(i) Whether there has been an interference

49. It is not in dispute that the applicant association sustained a restriction of its right to freedom of expression on account of the banning of the poster campaign it wished to conduct. The parties argued before the Grand Chamber, however, about whether such a restriction could be regarded in terms of negative obligations or positive obligations.

50. The Court would reiterate in this connection that in addition to the primarily negative undertaking by the State to abstain from any interference with the rights guaranteed by the Convention, there “may be positive obligations inherent” in such rights (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). The boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 82, ECHR 2009); in both situations – whether the obligations are positive or negative – the State enjoys a certain margin of appreciation (see, for example, Keegan v. Ireland, 26 May 1994, §§ 51-52, Series A no. 290).

51. In the present case the Court takes the view that it is not necessary to examine further whether Article 10 imposed a positive obligation on the Swiss authorities. As the impugned ban constituted, in any event, an interference, it will not be acceptable unless it fulfils the requirements of paragraph 2 of that Article.

(ii) Justification for the interference

52. Such an interference with the applicant association’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society”.

53. The Court would first note that it is not in dispute between the parties that the restriction at issue was based on Article 19 of the Administrative Regulations of the City of Neuchâtel (see paragraph 25 above).

54. As to the legitimate aims pursued by the restriction, the Government indicated that it had sought to prevent crime, to protect health or morals and to protect the rights of others.

55. The Grand Chamber observes, like the Chamber, that the applicant association has not denied that the measure in question was taken to fulfil those legitimate aims. The Grand Chamber thus accepts that the restriction at issue pursued the above-mentioned legitimate aims.

56. It follows that the main question to be addressed in the present case is whether the impugned measure was necessary in a democratic society.

57. As the Chamber noted, the present case is singular in the sense that it raises the question whether the national authorities were required to permit the applicant association to disseminate its ideas through a poster campaign by making certain public space available to it for that purpose. In this connection the Court notes that in two Turkish cases it found a breach in respect of a poster ban imposed on a political party. However the Court’s finding in those cases was based on the fact that the regulations permitting such a ban were “not subject to any strict or effective judicial supervision” (see Tüzel v. Turkey, no. 57225/00, § 15, 21 February 2006, and Tüzel v. Turkey (no. 2), no. 71459/01, § 16, 31 October 2006).

58. The present case can also be distinguished from that of Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003‑VI), which concerned the use of space belonging to a private company, and from the Women On Waves case concerning the denial of authorisation for a ship to enter a State’s territorial waters – space that was “public and open by its very nature” (cited above, § 40). In the present case there has been no general ban on imparting certain ideas, only a ban on the use of regulated and supervised facilities in public space. As the Chamber noted, like the Swiss Federal Court before it, individuals do not have an unconditional or unlimited right to the extended use of public space, especially in relation to facilities intended for advertising or information campaigns (see paragraphs 14 and 51 of the Chamber judgment).

(α) Margin of appreciation

59. The Court would draw attention to its established case-law to the effect that Contracting States enjoy, under Article 10, a certain margin of appreciation in assessing the need for and extent of an interference in the freedom of expression protected by that Article (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I).

60. However, this margin goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X, and Flinkkilä and Others v. Finland, no. 25576/04, § 70, 6 April 2010). In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied upon (see Axel Springer AG v. Germany [GC], no. 39954/08, § 86, 7 February 2012).

61. The breadth of such a margin of appreciation varies depending on a number of factors, among which the type of speech at issue is of particular importance. Whilst there is little scope under Article 10 § 2 of the Convention for restrictions on political speech (see Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999‑IV), a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion (see Murphy, cited above, § 67). Similarly, States have a broad margin of appreciation in the regulation of speech in commercial matters or advertising (see markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165, and Casado Coca v. Spain, 24 February 1994, § 50, Series A no. 285‑A).

62. In the present case, the Court observes that it can be reasonably argued that the poster campaign in question sought mainly to draw the attention of the public to the ideas and activities of a group with a supposedly religious connotation that was conveying a message claimed to be transmitted by extraterrestrials, referring for this purpose to a website address. The applicant association’s website thus refers only incidentally to social or political ideas. The Court takes the view that the type of speech in question is not political because the main aim of the website in question is to draw people to the cause of the applicant association and not to address matters of political debate in Switzerland. Even if the applicant association’s speech falls outside the commercial advertising context – there is no inducement to buy a particular product – it is nevertheless closer to commercial speech than to political speech per se, as it has a certain proselytising function. The State’s margin of appreciation is therefore broader.

63. In such cases, the national authorities are in principle, by reason of their direct and continuous contact with the vital forces of their countries, in a better position than the international judge to give an opinion on the “necessity” of a “restriction” or “penalty” intended to fulfil the legitimate aims pursued thereby (see Müller and Others v. Switzerland, 24 May 1988, § 35, Series A no. 133).

64. For this reason the management of public billboards in the context of poster campaigns that are not strictly political may vary from one State to another, or even from one region to another within the same State, especially a State that has opted for a federal type of political organisation. In this connection, the Court would point out that certain local authorities may have plausible reasons for choosing not to impose restrictions in such matters (see Handyside v. the United Kingdom, 7 December 1976, § 54, Series A no. 24). The Court cannot interfere with the choices of the national and local authorities, which are closer to the realities of their country, for it would thereby lose sight of the subsidiary nature of the Convention system (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 35, § 10, Series A no. 6).

65. The examination by the local authorities of the question whether a poster satisfies certain statutory requirements – for the defence of interests as varied as, for example, the protection of morals, road traffic safety or the preservation of the landscape – thus falls within the margin of appreciation afforded to States, as the authorities have a certain discretion in granting authorisation in this area.

66. Having regard to the foregoing considerations concerning the breadth of the margin of appreciation in the present case, the Court finds that only serious reasons could lead it to substitute its own assessment for that of the national authorities.

(β) Reasons given by the domestic courts

67. The Court must accordingly examine the reasons given by the authorities for banning the poster campaign at issue, together with the scope of that ban, in order to ascertain whether those reasons were “relevant” and “sufficient” and thus whether, having regard to the margin of appreciation afforded to the national authorities, the interference was proportionate to the legitimate aims pursued and whether it corresponded to a “pressing social need”. It would point out in this connection that, unlike the above-mentioned cases where the Court found a breach in respect of decisions banning poster campaigns on account of the lack of any strict or effective judicial scrutiny (see Tüzel, cited above, § 15, and Tüzel (no. 2), cited above, § 16), no question arises in the present case as to the effectiveness of the judicial scrutiny exercised by the domestic courts.

68. The parties have discussed whether it was appropriate for the purposes of examining the necessity of the disputed measure to take into consideration, as the domestic courts did, the content of the Raelian Movement’s website, whose address was indicated on the poster in question. Having regard to the principle that the Convention and its Protocols must be interpreted in the light of present-day conditions (see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Vo v. France [GC], no. 53924/00, § 82, ECHR 2004‑VIII), the Chamber took the view that the website did have to be considered because, as it was accessible to everyone, including minors, the impact of the posters on the general public would have been multiplied on account of the reference to the website address.

69. The Court reiterates its general principle that the impugned interference has to be examined in the light of the case as a whole in order to determine whether it is “proportionate to the legitimate aim pursued” and whether the reasons given by the national authorities to justify it appear “relevant and sufficient” (see paragraph 48 above). It observes that the impugned poster clearly had the aim of attracting people’s attention to the website: the address of that site was given in bold type above the slogan “The Message from Extraterrestrials” (see paragraph 14 above). It would thus be illogical for the Court to look solely at the poster itself; it is necessary for it, like the domestic courts, to examine the content of the website in question.

70. As regards the reasons as such, the Court would first note, like the Chamber, that the five national authorities which examined the case (the police administration, the municipal council, the Neuchâtel Land Management Directorate, the Administrative Court and the Federal Court) gave detailed reasons for their decisions, explaining why they considered it appropriate not to authorise the poster campaign. The Federal Court, which is the highest domestic court, referred in particular to Article 10 of the Convention and to the Court’s case-law in that area, and examined the proportionality of the impugned measure.

71. In finding the refusal to authorise the campaign in question to be justified, the Federal Court successively examined each of the reasons relied on by the lower courts as justifying such refusal, namely the promotion of human cloning, the advocating of “geniocracy” and the possibility that the Raelian Movement’s literature and ideas might lead to sexual abuse of children by some of its members.

72. Even though some of these reasons, taken separately, might not be capable of justifying the impugned refusal, the Court takes the view that the national authorities were reasonably entitled to consider, having regard to all the circumstances of the case, that it was indispensable to ban the campaign in question in order to protect health and morals, protect the rights of others and to prevent crime. The Chamber found, in particular, as follows (paragraphs 55-57 of the judgment):

“55. ... First, the association’s website contained a link to that of Clonaid, via which that company was proposing specific cloning-related services to the general public, and on which it had announced, in early 2003, the birth of cloned babies. Secondly, the Administrative Court referred to a judgment of the District Court of La Sarine, which mentioned possible sexual abuse of minors. Thirdly, the propaganda in favour of ‘geniocracy’, namely the doctrine according to which power should be entrusted to people with the highest level of intelligence, and the resulting criticism directed at contemporary democracies, was capable of undermining public order, safety and morals.

56. The Court finds that the domestic authorities’ accusations against certain members of the applicant association, as regards their sexual activities with minors, are of particular concern. ... Admittedly, it is not within the Court’s remit, in principle, to review the facts established by the domestic bodies or the proper application of domestic law; therefore, it is not called upon to ascertain whether the authorities’ accusations are proven. However, the Court is of the opinion that, having regard to the circumstances of the present case, the authorities had sufficient reason to find it necessary to deny the authorisation requested by the applicant association.

57. Similar considerations are called for as regards the question of cloning. The Court observes that the domestic authorities may in good faith have considered it indispensable, for the protection of health and morals and for the prevention of crime, to prohibit the poster advertising campaign, given that the applicant association displayed, on its website, a link to that of Clonaid, a company that it had itself set up ... Moreover, as the association itself admitted, it had a favourable opinion of cloning, an activity that was clearly prohibited by Article 119 paragraph 2 (a) of the Federal Constitution ...”

The Grand Chamber does not see any reason to depart from the Chamber’s considerations in this connection. Accordingly, the Court finds that the concerns expressed by the national authorities were based on relevant and sufficient reasons.

73. The Chamber lastly took the view that the impugned measure was ultimately limited in scope, as the applicant association remained free “to express its beliefs through the numerous other means of communication at its disposal”; the Chamber also pointed out that “there was never any question of banning the applicant association itself or its website” (see paragraph 58 of the Chamber judgment).

74. The applicant association claimed that this position of the Chamber was contradictory and was tantamount to complicating excessively any dissemination of its ideas, since it was prohibited from imparting information using posters on the ground that it had a website, but when it displayed the address of its website on a poster it was barred from doing so on the pretext that this created a link with its ideas, which were allegedly dangerous for the public.

75. In the Court’s view, however, such a contradiction is no more than apparent. Like the Government, it finds that a distinction must be drawn between the aim of the association and the means that it uses to achieve that aim. Accordingly, in the present case it might perhaps have been disproportionate to ban the association itself or its website on the basis of the above-mentioned factors (see, in this connection, Association Rhino and Others v. Switzerland, no. 48848/07, §§ 66-67, 11 October 2011). To limit the scope of the impugned restriction to the display of posters in public places was thus a way of ensuring the minimum impairment of the applicant association’s rights. The Court reiterates in this connection that the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question (see Women On Waves, cited above, § 41). In view of the fact that the applicant association is able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes, the impugned measure cannot be said to be disproportionate.

(c) Conclusion

76. The Court concludes that the national authorities did not overstep the broad margin of appreciation afforded to them in the present case, and the reasons given to justify their decisions were “relevant and sufficient” and met a “pressing social need”. The Court does not therefore see any serious reason to substitute its own assessment for that of the Federal Court, which examined the question at issue with care and in line with the principles laid down by the Court’s case-law.

77. Accordingly, there has been no violation of Article 10 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

78. The applicant association further relied on Article 9 of the Convention in support of its allegations, finding that the impugned prohibition had infringed its right to freedom of religion.

79. In its judgment, the Chamber took the view that it was not required to examine separately the complaint under Article 9 (see paragraph 61 of the Chamber judgment).

80. The Court is of the view that there is no reason to depart from the Chamber’s approach on this point. Accordingly, it concludes that it is not required to examine whether Article 9 of the Convention applies to the impugned ban and, if so, whether there has been a violation of that provision.

FOR THESE REASONS, THE COURT

1. Dismisses, unanimously, the Government’s preliminary objection;

2. Holds, by nine votes to eight, that there has been no violation of Article 10 of the Convention;

3. Holds, unanimously, that it is not required to examine the complaint under Article 9 of the Convention.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 13 July 2012.

              Michael O’BoyleNicolas Bratza
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge Bratza;

(b) joint dissenting opinion of Judges Tulkens, Sajó, Lazarova Trajkovska, Bianku, Power-Forde, Vučinić and Yudkivska;

(c) joint dissenting opinion of Judges Sajó, Lazarova Trajkovska and Vučinić ;

(d) dissenting opinion of Judge Pinto de Albuquerque.

N.B.
M.O’B.

CONCURRING OPINION OF JUDGE BRATZA

1. With some hesitation I have voted with the majority of the Court in finding that there was no violation of Article 10 of the Convention in the present case. My eventual view has essentially been based on four features of an unusual case.

a) The nature of the interference

2. The applicant association’s complaint relates to the refusal of authorisation to conduct a poster campaign in public areas of the city of Neuchâtel. The use of such public space was governed by the Administrative Regulation of 17 January 2000, which provided, inter alia, that the installation of billboards and advertising panels in public areas should be subject to authorisation, that the police administration might prohibit posters that were unlawful or immoral and that an exclusive right in respect of posters displayed within the area of the municipality might be granted by the municipal council. The refusal of authorisation was successively upheld on appeal by the municipal council of the city, by the Neuchâtel Land Management Directorate, by the Administrative Court for the Canton of Neuchâtel and by the Federal Court.

3. The parties were in dispute as to whether the refusal of authorisation was to be seen as amounting to a direct interference with the applicant’s rights under Article 10, and thus as involving the negative obligations of the State under Article, or as giving rise to the positive obligations of the State to secure the association’s right to freedom of expression. The Grand Chamber, in common with the Chamber, has preferred to treat the case as one of a direct interference requiring justification under paragraph 2 of Article 10, while correctly observing that the boundaries between the negative and positive obligations under the Convention do not lend themselves to precise definition and that in both circumstances States enjoy a certain margin of appreciation.

4. I can accept this approach. Nevertheless, there are elements in the case which suggest that it was the positive obligations of the State which were primarily at stake. In this regard, I consider it to be of importance that the applicant’s complaint relates not to a general restriction imposed on the association’s activities or on its freedom to disseminate or impart information to the general public about its existence or its aims and beliefs. This, as is pointed out in the judgment, the association remained free to do by displaying its posters on private property or by distributing leaflets or by using other means of publicity, such as the print or broadcast media or through the medium of the association’s own internet website. The complaint is a much more specific one, namely the refusal of the municipal authorities to authorise, in the exercise of its regulatory powers, the use by the association of public billboards in the city to display a particular poster for a specified period as part of an extensive poster campaign. In this respect the case has certain similarities to that of Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003-VI), in which the restriction on the applicants’ ability to communicate their views was limited to the entrance areas and passageways of a shopping mall and in which the Court’s conclusion that the State was not in breach of its positive obligations under Article 10 was in part founded on the fact that the applicants had not been prevented from disseminating those views in other parts of the town or by other means. It is true that, in the Appleby case, the mall in question belonged to a private company, while the billboards in the present case were erected in public areas within the exclusive control of the municipality. Nevertheless, Article 10 cannot in my view be interpreted as imposing an obligation on national authorities to provide unconditional and unrestricted access to the use of public facilities to impart information or ideas. The case of Women on Waves and Others v. Portugal (no. 31276/05, 3 February 2009), on which reliance is placed by the applicant association, is no authority to the contrary, involving as it did the extreme measure of a general prohibition on a ship entering the State’s territorial waters, a space which was, as the Court found in that case, “public and open by its very nature”.

5. Even accepting that the refusal of authorisation is properly to be seen as an interference with the applicant’s freedom of expression, it was one of a limited nature. The applicant association relies on the fact that it was able to impart its ideas through its own website without restriction but not to display the address of the website on posters as indicating a contradictory stance on the part of the municipal authorities and as undermining the necessity of the measures taken by those authorities. I do not agree. I find nothing contradictory in a decision to refuse permission for public facilities to be used for the purposes of advertising a website, while at the same time taking no steps to close down or restrict access to the website. Like the majority of the Court, I consider that the limited nature of the measures in question served, if anything, to confirm the proportionality of the measures. I am similarly unpersuaded by the applicant’s argument that the lack of necessity of the measures is demonstrated by the fact that in other States, and even other regions of Switzerland, the poster campaign was accepted by the authorities - an argument which has, as noted in paragraph 64 of the judgment, been rejected by the Court in its previous case-law.

b) The nature of the speech

6. As is pointed out in the judgment, the breadth of the margin of appreciation afforded to the national authorities varies depending on a number of factors, among which the type of speech is of particular importance. While there is little scope under Article 10 for restrictions on political speech, a broad margin of appreciation is in general afforded for the regulation of speech in commercial matters, including forms of advertising.

7. I am unable to accept that the association’s poster can be equated to political speech or that it can be seen as designed to address matters of political or public debate in Switzerland. The poster, with its reference to the association’s website address, was exclusively intended to give publicity to its existence and to draw attention to its activities, a description of which was to be found on that website. In this respect, the poster was, in its essentials, a mode of advertising even if, in contrast to commercial advertising with which the Court’s case-law has previously been concerned, it was not intended to induce the public to buy a particular product or service and may not have had any directly financial purpose. The margin of appreciation afforded to the national authorities was in my view accordingly a broader one.

c) The content of the posters

8. Emphasis is placed by the association on the fact that there was nothing objectionable on the face of the poster itself. This was accepted by the Federal Court which noted that the poster did not contain anything in its text or in its illustrations that was unlawful or likely to offend the general public. However, the Federal Court went on to note that the poster as a whole could clearly be seen as an invitation to visit the website of the association or to contact it by telephone and that it was thus legitimate to ascertain whether the website might contain information, data or links capable of causing offence or of infringing the law. Like the Federal Court, I consider that it would be too narrow an approach to examine the poster in isolation and that, in assessing the justification for any interference, it is necessary and appropriate to examine the content of the website which the public was being invited in the poster to consult.

d) The grounds for the refusal of authorisation

9. In carrying out such an assessment, I attach considerable weight to the fact that four domestic authorities, including the Administrative Court and the Federal Court, examined the case and the justification for refusing authorisation to the poster campaign. The detailed judicial review of the decision by the two courts is of special significance, affording as it did an effective safeguard against arbitrariness, discriminatory treatment and abusive power in the decision-making process leading to the refusal of authorisation.

10. Three aspects of the association’s aims and activities, as appearing from its website, attracted particular attention – the promotion of human cloning through the link to Clonaid; the promotion of the concept of “geniocracy”; and the encouragement, through the literature and ideas of the association and its founder, of sexual abuse of children by some of its members.

11. Although the doctrine of “geniocracy” was found to be largely inspired by eugenics and, as the Federal Court found, to be manifestly capable of offending democratic and anti-discriminatory convictions, the doctrine was not in that court’s view such as to undermine public order or safety or to justify on its own the refusal of authorisation of the poster campaign.

12. The link of the association with Clonaid and the risk of encouraging sexual abuse of children were found to be of greater concern. As to the latter, the national courts found not only that numerous members of the movement had been investigated and prosecuted on account of their sexual practices but that, as a judgment of the Lyons Court of Appeal clearly showed, acts of sexual abuse had been committed by leaders of the movement against minors and that those leaders had advocated a broad sexual freedom strongly encouraging commission of such acts and had corrupted young teenagers. In addition, certain passages in the works of the founder of the associa