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FIRST
SECTION
CASE OF MOUVEMENT RAELIEN SUISSE v. SWITZERLAND
(Application
no. 16354/06)
JUDGMENT
STRASBOURG
13 January
2011
Referred
to Grand Chamber
This
judgment may be subject to editorial revision.
In the case of Mouvement Raelien
Suisse v. Switzerland,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Registrar,
Having
deliberated in private on 25 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- 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, Mouvement
Raelien Suisse (“the applicant association”), on 10 April
2006.
- The
applicant association was represented by Mr E. Elkaim, a lawyer
practising in Lausanne. The Swiss Government (“the Government”)
were represented by their Agent, Mr F. Schürmann, Head of the
Human Rights and Council of Europe Section of the Federal Office of
Justice.
- The
applicant association alleged that measures taken by the Swiss
authorities to prohibit the display of a poster had breached its
right to freedom of religion and freedom of expression under Articles
9 and 10 of the Convention.
- On
15 May 2008 the Chamber to which the case had been allocated in the
First Section decided to give notice of the application to the
Government. It also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1 of the
Convention).
- After
consulting the parties, the Chamber decided that no hearing on the
merits was required (Rule 59 § 3 in fine of the Rules of
Court). The parties each filed written comments on the other’s
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- 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.
- 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 advertising
campaign in the period between 2 and 13 April 2001. The poster in
question, measuring 97x69 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.
- 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.
- 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”.
- 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 Neuchâtel 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, concerning a right of reply, 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 had a link, proposed specific services in the area of cloning,
and eugenism was contrary to the principle of non-discrimination. The
poster advertising campaign was prejudicial to morals and to the
rights of others. In any event, the Raelian Movement had other means
to disseminate its ideas.
- 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.
- 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.
- 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.
- 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, then 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 Articles 9 § 2 and 10 §
2 ECHR). The applicant association 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
association 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 p. 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 admissibility 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 proposes 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 24novies (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 Art. 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 eugenism, 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 12-year-old
girl. The judgment was upheld 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 Lyon 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 association 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 association 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 association 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 admissible. 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 Articles 9 § 2 and 10 § 2 of
the ECHR.”
II. RELEVANT DOMESTIC LAW
- Article
119 of the Federal Constitution 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 9 AND 10 OF THE
CONVENTION
- The
applicant association claimed that the measures taken by the Swiss
authorities to prohibit the display of its posters had breached its
rights to freedom of religion and freedom of expression within the
meaning of Articles 9 and 10 of the Convention respectively. Those
provisions read as follows:
Article 9
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion
or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others.”
Article 10
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
1. Compliance with the six-month rule
- The
Government requested the Court to verify whether the time-limit had
been met for the lodging of the present application. They observed
that according to the applicant association it had received the
reasoned judgment of the Federal Court on 10 October 2005. The
period of six months allowed for the lodging of its application had
thus expired on 10 April 2006. The Government noted that this
was the date that appeared on the application but that, having regard
to the Court’s date-stamp it seemed to have received the
application on 20 April 2006, ten days after the six-month
time-limit. As the exact date of dispatch is not shown in the file
available to the Government, they were of the opinion that compliance
with the six-month time-limit was not established in the present
case.
- The
Court observes that the applicant association provided, in an annex
to its observations on the admissibility and merits of the case, a
copy of a document from the Swiss post office certifying that the
application had been deposited on 10 April 2006.
Accordingly, as the final judgment of the Federal Court had been
served on it on 10 October 2005, the applicant association
complied with the six-month rule.
- In
view of the foregoing the Government’s objection must be
dismissed.
2. Applicability of Article 9 of the Convention
- The
Government maintain that Article 9 does not apply to the present case
and, in the alternative, that this provision has not been breached.
- For
the applicant association, the present case clearly falls within the
scope of religious freedom and there has been a violation of Article
9.
- The
Court takes the view that the question of the applicability of
Article 9 in the present case is closely linked to the merits of the
case. It therefore joins it to the merits. It finds that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Complaint under Article 10 of the Convention
(a) The parties’ submissions
(i) The applicant association
- The
applicant association argued that the interference with its freedom
of expression lay in the fact that the poster had been regarded as
representing an invitation to visit the website of the Raelian
Movement or to contact it by telephone. It had thus been prevented
from imparting its ideas, not only through the prohibition of the
impugned poster, but also by the indirect sanction against the
content of its website and the writings of Raël.
- The
applicant association further observed that, without providing the
slightest concrete evidence, the Government had accused it of being
connected to Clonaid. It asserted, however, that it had no control
over the staff, work or investors of that company. It presented
Clonaid as a legal entity that was separate from and totally
independent of the Raelian Movement. In support of this argument, the
applicant association submitted two statements that had been
published in France, in the context of its right to reply, denying
the existence of any links between the Raelian Movement and that
company. In any event, Clonaid had never engaged in any cloning
activity on Swiss territory.
- The
applicant association did not deny that the Raelian Movement had
expressed a favourable opinion of cloning. However, it would never
have participated, in Switzerland or elsewhere, in therapeutic or
experimental acts related to human cloning. The Federal Council had
moreover indicated that “in so far as, in Switzerland, the
Mouvement Raëlien confines itself to calling for social
recognition of cloning techniques – or indeed for the lifting
of the prohibition on cloning – its activity falls within the
freedom of opinion protected by Article 16 of the Federal
Constitution” (Bulletin officiel 03.1018 – Human
Cloning).
- The
applicant association further noted that in Switzerland the Federal
Medically-Assisted Reproduction Act, which prohibited not only
cloning but also stem-cell research, had been enacted on 18 December
1998. A few years later the Federal Parliament had enacted the law of
19 December 2003 on stem-cell research, which laid down the
conditions for the production of human embryonic stem cells from
left-over human embryos and the use of such cells for research
purposes. That significant relaxation of the regulatory framework had
shown that mentalities were changing in this constantly-evolving
domain, thus increasing the need for an open debate that the
applicant association was advocating on a related question, that of
cloning.
- As
regards “geniocracy”, the applicant association argued
that there had been nothing that undermined public order in its
publications or in the writings of Raël on that subject. Even
though they presented a utopia that met with the moral criticism of
the majority, those writings were simply expressing an opinion, which
was in fact subject to a reservation: “The goal is not to
impose geniocracy, but to establish it democratically by showing the
necessity of abandoning crude democracy in favor of the selective
democracy of geniocracy” (see Geniocracy, p. 28-9).
Moreover, the applicant association maintained that the interference
by the State with its fundamental rights was particularly flagrant on
this point because neither the impugned poster nor the Raelian
Movement’s website referred to the concept of “geniocracy”.
It came from a book in which Raël was freely expressing a
philosophical opinion with which everyone was free to agree or
disagree. As it was purely an academic debate, a breach of public
order was, in any event, to be ruled out.
- As
regards the purported allegations by members of the association about
sexual abuse of minors, the applicant association first referred to
the Federal Court’s finding that the Raelian Movement did not
advocate paedophilia. The applicant association considered that the
reference by the Government to the judgment of the Fribourg Cantonal
Court was totally irrelevant, as that court had been ruling on an
appeal in a purely civil matter (a right of reply) and was not
entitled to review the decisions of foreign judicial authorities. In
its submission, the Government had not provided any evidence relating
to convictions of members of the Raelian Movement.
- Furthermore,
the applicant association observed that neither the Government nor
the Federal Court had cited the slightest passage from the allegedly
dangerous writings to which they purported to refer. If they had
carefully read those writings and the movement’s doctrine they
would in fact have seen that the Raelian Movement had always strongly
condemned the remarks made by one of its former members about 30
years earlier. In those circumstances, the general reference to the
movement’s doctrine as being capable of leading adults to
commit abuse against minors was totally unfounded. The applicant
association further noted that in order to confront the unfounded
allegations of paedophilia it had created the association Nopedo,
which not only condemned paedophile acts but even acted to prevent
them. Anyone consulting the association’s website would be able
to see that there was a link between the Raelian Movement’s
website and that of Nopedo. In addition, all of the movement’s
websites contained a notice explaining very clearly the applicant
association’s position with regard to paedophilia.
Lastly, the applicant association pointed out that it had always,
without the slightest hesitation, expelled any members who were
suspected of unlawful conduct as regards the protection of minors.
- For
all those reasons the applicant association requested the Court to
reject the Government’s submissions and to uphold its
application.
(ii) The Government
- The
Government acknowledged that the applicant association was entitled
to invoke its right to freedom of expression. However, they
maintained that it was not prevented from disseminating its doctrine,
provided it respected the Swiss legal order, through the numerous
other means of communication at its disposal (books, tracts,
Internet, etc.). It could not therefore claim that there had been an
interference with its freedom of expression.
- In
the alternative, the Government observed that all the domestic
authorities had accepted that Article 19 of the Municipal
Administrative Regulations, which enabled the police administration
to prohibit posters that were unlawful or immoral, constituted a
sufficient legal basis on which to refuse permission to display the
impugned poster. Moreover, as the national authorities had found, the
disputed measure pursued the legitimate aims of the prevention of
crime, the protection of health or morals and the protection of the
rights of others.
- As
regards the necessity of the measure in a democratic society, the
Government noted, like the Federal Court, that citizens did not have
an unconditional right to an extended use of public space, in
particular when a means of advertising on the public highway involved
activity of a certain scale and duration, and excluded any similar
use by third parties.
- The
Government pointed out that the applicant association, before the
domestic authorities and in its application, had criticised the
respondent authorities for going beyond the content of the poster and
engaging in an assessment of the association’s activities. As
the Federal Court had found, the poster did not in itself contain
anything, either in its text or in its illustrations, that was
unlawful or likely to offend the general public, but could clearly be
seen as an invitation to visit the association’s website or to
contact it by telephone, and the applicant association had not denied
this. The court had quite rightly taken the view that, faced with
such advertising, the authority had to examine not only the
admissibility of the advertisement’s message as such, but also
that of its content.
- The
first ground given by the domestic authorities to uphold the impugned
decision concerned the applicant association’s link to the
company Clonaid, set up by the association itself, which proposed
various specific cloning-related services in return for payment. The
Federal Court had found that the issue was not simply the expression
of a favourable opinion of cloning, but the practice of that
activity, which was prohibited under Article 119 § 2 (a) of the
Federal Constitution (see paragraph 15 above).
- The
second ground concerned the fact that the applicant association
advocated “geniocracy”, which was, in the Government’s
submission, also clearly contrary to Article 119 of the Federal
Constitution. They were of the view that, without specifically
undermining public order or safety in itself, this doctrine might
offend democratic or anti-discriminatory convictions, which
underpinned the rule of law. In the Government’s submission,
the essential argument of the applicant association on this point
consisted in noting that neither the poster nor the association’s
website referred to the notion of geniocracy; the information
available to the Swiss courts, it had said, was based solely on a
report of the Beliefs Information Centre. The Government pointed out
that the Federal Court had nevertheless also observed (point 5.6 of
the judgment) that this theory appeared in the works proposed on the
website.
- The
third ground for refusal had concerned the convictions of members of
the association for sexual assaults on minors and the movement’s
doctrine advocating in particular the “sensual awakening of
children”. The Government referred to the domestic authorities’
finding that, even though the Raelian Movement could not be regarded
as advocating paedophilia, numerous members of the association had
been involved in conduct for which they had been convicted on account
of their sexual practices. In addition, certain passages in the books
proposed on the movement’s website might lead adults to commit
acts of abuse against minors. In support of their allegations, the
authorities had referred in particular to a judgment delivered on 28
November 1997 by the District Court of La Sarine, upheld by the
Cantonal Court of the Canton of Fribourg and by the Federal Court,
and to various documents concerning criminal proceedings against
members of the association for sexual assault, including a judgment
of the Lyon Court of Appeal of 24 January 2002 (see judgment of the
Federal Court, point 5.5.3). Contrary to what the applicant
association had asserted in its application, the facts set out in the
Federal Court’s judgment thus did not all date back more than
twenty years.
- The
Government argued that a poster advertising campaign could be
distinguished by the fact that it entailed not a mere obligation of
tolerance, but the making available of public space. The direct
impact on the general public could be considerable, including on
minors or persons likely to be offended; that impact had to be taken
into account in the consideration of the proportionality of the
interference (see Murphy v. Ireland, no. 44179/98,
§ 69, ECHR 2003 IX).
- The
Government were of the opinion that the slogan “Science at last
replaces religion”, displayed on the public highway, might
offend the religious feelings of certain persons. In addition, the
invitation to visit the association’s website entailed risks
for public morality, order and safety. Like the Federal Court, the
Government took the view that the public interest was not only to
limit the publicity given to the applicant association’s
website, in view of the reservations expressed above concerning
public order and morality, but also to ensure that the State did not
provide its support for such publicity by making available public
space, with the result that it could be seen to endorse or tolerate
the opinions and conduct in question.
- Having
regard to the foregoing, the Government were of the view that the
impugned measure respected the principle of proportionality. It thus
constituted a restriction that was necessary “in a democratic
society”.
- For
all these reasons, the Government requested the Court to reject the
complaint under Article 10.
(b) The Court’s assessment
(i) Existence of an interference
- The
Court shares the applicant association’s opinion that it has
sustained an interference with the exercise of its freedom of
expression on account of the fact that it was not authorised to
impart its ideas through the impugned poster advertising campaign.
(ii) Justification for the interference
- Such
interference breaches Article 10, unless it meets the requirements of
paragraph 2 of that provision. It thus remains to be ascertained
whether the interference was “prescribed by law”, was
inspired by one or more legitimate aims in the light of that
paragraph and was “necessary in a democratic society” in
pursuit of such aims.
(α) Prescribed by law
- The
Government relied on Article 19 of the Municipal Administrative
Regulations, which provides that the police administration may
prohibit unlawful or immoral posters.
- The
Court, observing that the applicant association did not call into
question the existence of a sufficient legal basis for the
interference with its right to freedom of expression, is of the
opinion that the interference had a legal basis within the meaning of
its case-law.
(β) Legitimate aims
- In
the Government’s submission, the impugned measure pursued the
legitimate aims of the prevention of crime, the protection of health
or morals and the protection of the rights of others.
- The
Court, finding that the applicant association did not dispute the
fact that the impugned measure pursued legitimate aims within the
meaning of Article 10 § 2, accepts the Government’s
argument.
(γ) “Necessary in a democratic
society
- The
main question in the present case is whether the impugned measure was
necessary in a democratic society.
- The applicable principles
- The
fundamental principles in that regard are well established in the
Court’s case-law and have been summed up as follows (see, for
example, 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):
“(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 ....”
- The
Court finds that the present case can be distinguished by the fact
that it raises the question whether the domestic authorities should
have allowed the applicant association to impart its ideas through
its poster advertising campaign, namely by making public space
available to it for that purpose. The Court has not previously had
occasion to rule on this issue. It has only examined, under Article
10, the use of public and open space, namely the territorial sea (see
Women On Waves and Others v. Portugal, no. 31276/05, 3
February 2009), and the use of privately-owned space (see Appleby
and Others v. the United Kingdom, no. 44306/98, ECHR
2003 VI). In the latter case, the Court found that Article 10
had not been breached by a prohibition, imposed by a private company
that owned a shopping centre, on the setting-up of stalls there for
the distribution of leaflets (§ 47):
“That provision [Article 10 of the Convention],
notwithstanding the acknowledged importance of freedom of expression,
does not bestow any freedom of forum for the exercise of that right.
While it is true that demographic, social, economic and technological
developments are changing the ways in which people move around and
come into contact with each other, the Court is not persuaded that
this requires the automatic creation of rights of entry to private
property, or even, necessarily, to all publicly owned property
(government offices and ministries, for instance). Where, however,
the bar on access to property has the effect of preventing any
effective exercise of freedom of expression or it can be said that
the essence of the right has been destroyed, the Court would not
exclude that a positive obligation could arise for the State to
protect the enjoyment of the Convention rights by regulating property
rights. A corporate town where the entire municipality is controlled
by a private body might be an example (see Marsh v. Alabama,
cited at paragraph 26 above).”
- Application of the principles to the present case
- According
to the Federal Court’s case-law, individuals do not have an
unconditional right to the extended use of public space, in
particular for the purpose of advertising on the public highway
involving activity of a certain scale and duration, and excluding any
similar use by third parties (point 5.2 of the judgment, see
paragraph 14 above).
- When
it receives a request for the extended or private use of public
space, or when it supervises the conditions in which a licence is
used, the State must nevertheless take into account the substantive
content of the right to freedom of expression and its importance in a
democratic society. That being said, the Court finds it necessary, in
the present case, to balance the interests at stake, on the one hand
that of the applicant association in conveying its ideas, and, on the
other, that of the authorities in protecting public order and
preventing offences. The Court shares the Government’s view
that acceptance of a poster advertising campaign could suggest that
they are endorsing, or at least tolerating, the opinions and conduct
in question. Consequently, it is prepared to admit that the margin of
appreciation afforded to domestic authorities in examining the
necessity of a measure is broader in this area (contrast Women On
Waves and Others, cited above, § 40).
- As
regards the circumstances of the present case, it is not in dispute
that the impugned poster in itself did not contain anything, either
in its text or in its illustrations, that was unlawful or likely to
offend the general public. In the middle was a drawing representing
extra-terrestrials and above it the text “The Message from
Extraterrestrials”, without any explanation. At the bottom of
the poster appeared the phrase “Science at last replaces
religion”. In the Federal Court’s view, that phrase was
admittedly capable of offending the beliefs of certain persons, but
could not be described as particularly provocative.
- However,
the Court cannot disregard the fact that the poster also displayed,
in bolder type, the association’s website address and a
telephone number. The website had a link to that of Clonaid, through
which that company was proposing specific cloning-related services to
the general public. Having regard to the principle that the
Convention and its Protocols must be interpreted in the light of
present-day conditions (see, among many other authorities, 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 Court takes the view that contemporary means of
disseminating information must be taken into account in examining the
impugned measure. Accordingly, it must in particular assess, in
deciding whether the measure was in conformity with Article 10, not
only the poster but also the more general context surrounding it,
especially the ideas expressed in the books and the content of the
websites of the association and of Clonaid. As those websites were
per se accessible to everyone, including minors, the impact of
the posters on the general public would have been multiplied and the
State’s interest in prohibiting the poster advertising campaign
was thus all the greater (see, to the same effect, Stoll,
cited above, § 104).
- The
Court further observes that the domestic authorities gave detailed
reasons for their decisions, explaining why they considered it
appropriate not to authorise the poster advertising campaign. The
Administrative Court directed three types of criticism at the
association (see point 5.3 of the Federal Court’s judgment,
above). 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.
- 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. It notes in this
connection that, in the case of F.L. v. France ((dec.),
no. 61162/00, 3 November 2005), among other things it found
to be compliant with Article 8 an obligation for the applicant
to avoid bringing her children into contact with the Raelian
Movement. 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.
- 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 (see paragraph 14 above, point 5.5.1). 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 (see paragraph 15 above).
- As
regards the proportionality of the impugned measure, the Court
observes that it was strictly limited to the display of posters on
the public highway. According to the Federal Court, the applicant
association remained free to express its beliefs through the numerous
other means of communication at its disposal (point 5.7.2 of the
Federal Court’s judgment, paragraph 14 above; see, to the same
effect, Appleby, cited above, § 48, Murphy,
cited above, § 74, and Women on Waves and Others,
cited above, § 40). In particular, there was never any
question of banning the applicant association itself or its website.
- Having
regard to the foregoing, it appears that after balancing the
interests at stake in the present case, and in the light of all
relevant evidence, the domestic authorities did not overstep the
margin of appreciation afforded to them as regards the extended use
of public space. Moreover, the authorities gave relevant and
sufficient grounds in support of their arguments. Consequently, the
prohibition of the impugned poster advertising campaign can be
regarded as a measure that was proportionate to the legitimate aim
pursued and did not impair the very essence of the applicant
association’s right to freedom of expression.
- Accordingly,
there has been no violation of Article 10 of the Convention.
2. Complaint under Article 9 of the Convention
- The
Court, having regard to the finding that there has been no violation
of Article 10 of the Convention, does not find it necessary to
examine the matter additionally under Article 9. This finding
dispenses it from ruling on the Government’s objection that
Article 9 is not applicable in the present case.
FOR THESE REASONS, THE COURT
- Declares the application admissible,
unanimously;
- Holds, by five votes to two, that there has been
no violation of Article 10 of the Convention;
- Holds, unanimously, that there is no need to
examine separately the complaint under Article 9 of the Convention.
Done in French, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the separate opinion of Judges Rozakis and
Vajić is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGES ROZAKIS AND VAJIĆ
(Translation)
It is
with regret that we are unable to follow the majority’s
position in this case and to find
no violation. For the following reasons we are bound to depart from
their findings.
- The
present case raises the interesting and novel question of advertising
in public space under Article 10 of the Convention (see paragraph 50
of the judgment). It can be distinguished from Appleby and Others
because it does not concern a private space, such as the
privately-owned shopping centre in that case, but a public space (see
Appleby and Others v. the United Kingdom, no. 44306/98,
ECHR 2003 VI). Above all, in the present case the issue is not
one of positive obligations, in which the extent of the State’s
responsibilities must not be interpreted as imposing on the
authorities an unbearable or excessive burden (see Özgür
Gündem v. Turkey, no. 23144/93, § 43, ECHR
2000 III); whilst it is true that, in both hypotheses –
positive and negative obligations – the State enjoys a certain
margin of appreciation, the Court has found that this margin of
appreciation is narrower as regards the negative obligations under
the Convention (see Women On Waves and Others v. Portugal, no.
31276/05, § 40, 3 February 2009).
The
present case appears to be closer to that of Women On Waves and
Others v. Portugal, where the prohibiting of a vessel from
entering Portuguese territorial waters had prevented the applicants
from imparting information and holding the scheduled meeting and
events that were supposed to have taken place on board. In that case
the Court criticised the use of radical measures against the
applicants and observed that the Portuguese authorities had, at least
with regard to a particular point, other means that would have been
less harmful to the applicants’ rights than the total
prohibition of the vessel from entering their waters (ibid., §§
42-43).
- It
should be pointed out in this connection that Article 10 also
protects the form in which the ideas and opinions in question are
conveyed (see Thoma v. Luxembourg, no. 38432/97, § 45,
ECHR 2001 III).
- We
consider that that it would have been more appropriate to follow the
approach taken by the Court in Women On Waves and Others v.
Portugal, where it found that the margin of appreciation was
narrower as regards the negative obligations under the Convention
(contrast paragraph 52 in fine of the judgment); and since,
under these circumstances, the margin of appreciation is a narrow one
in the present case, the following elements should be taken into
account in assessing whether or not there has been a violation:
(a) It
is not in dispute in the present case that the impugned poster in
itself did not contain anything that was unlawful or that could
offend the general public (see paragraph 53 of the judgment). Rather,
it was the telephone number and the address of the applicant’s
website at the bottom of the poster that gave rise to the decision in
question. Nor is it in dispute that the applicant association is not
prohibited as such and that it has existed in Switzerland since 1977.
It is, in our view, undeniable that an association is a legal entity,
which, when it operates lawfully in society, usually has the capacity
to propagate freely its ideas and opinions, and attain its aims,
without hindrance, through the means that society offers to all its
members. The legal system of a State may, of course, refuse the
establishment of an association which is regarded as violating moral,
political or other values of the society that it represents. However,
once it has accepted the association’s initial aims, it must
presumably allow it to freely mingle with society and to propagate
the key ideas that stem from those aims. The dichotomy applied by the
Swiss authorities in legalising, on the one hand, the association in
question, but, on the other, prohibiting it from advertising, in a
neutral manner, activities that had already been stated in the goals
of the association without having been found to violate the ordre
public of Swiss society, seems to us to be very problematic.
(b) When
dealing with a negative obligation of the State, as in the present
case, unlike that of Appleby, a tendency to restrict freedom
of expression in favour of the State’s margin of appreciation
does not seem to be consonant with the Court’s case-law or with
the Council of Europe’s activities in the promotion of new
technologies. Nowadays, considering the importance of and role played
by means of direct communication such as mobile telephones and the
Internet, it seems difficult to understand how a lawful association
with its website, that is not prohibited, cannot use public space to
promote the same ideas through posters that are not unlawful and do
not offend the general public. Nor does the argument to the effect
that, by accepting a poster advertising campaign, the municipal
authorities might suggest that they are endorsing the opinions in
question (see paragraph 52) seem to correspond to the realities of
the contemporary role of such authorities, which act in this context
as private managers of public space. It is, therefore, neither
realistic nor necessary in a democratic society to limit such access
by restrictions of this kind.
For
these reasons we have voted in favour of a violation.
