“New religious movements”, freedom of expression – and divided opinions

Article 119§2(a) of the Federal Constitution of the Swiss Confederation prohibits, inter alia, “all forms of cloning and interference with the genetic material of human reproductive cells and embryos are unlawful”.

The Mouvement Raëlien Suisse is a non-profit association set up to make contact with extra-terrestrials: it also promotes human cloning and established a company called Clonaid to offer various practical cloning services for payment  In 2001 the Neuchâtel police refused it permission to put up posters featuring the faces of extra-terrestrials, a flying saucer, the Movement’s Internet address and telephone number and the Clonaid website address. The domestic courts upheld the authorities’ decision; and in its Chamber judgment in 2011 the First Section held by seven votes to two that there had been no violation of Article 10 ECHR (expression) and had found it unnecessary to consider the applicant’s complaint under Article 9 (thought, conscience and religion).

The Raëliens appealed to the Grand Chamber, complaining in particular that the authorities’ refusal to allow its poster campaign violated its rights under Article 10. In Mouvement Raëlien Suisse v Switzerland 16354/06 [2012] ECHR 1598 (GC) (13 July 2012) the Grand Chamber held by a majority of nine votes to eight  that there had been no violation of Article 10 of the Convention and agreed unanimously that it was not required to examine the complaint under Article 9. The national authorities had not exceed the broad margin of appreciation afforded them in this case and their reasons in justification were “relevant and sufficient” and met a “pressing social need”.

Comment:  The result was as near as a court can ever get to a dead heat. Not only was the appeal rejected by a single vote but the President, Sir Nicolas Bratza, gave a separate concurring opinion which began, “With some hesitation I have voted with the majority of the Court”. His concurrence seemed to be based on the fact that no steps had been taken to close down or restrict access to the Raëliens’ website and that the refusal to allow them to display the offending poster was therefore proportionate (para 5) – but he clearly had some difficulty with a restriction on what was, after all, a legal not-for-profit organisation.

In a robust dissent, Judge Tulkens and six of her colleagues took the contrary view: if the activities of the applicant association were so objectionable, why had the Raëliens and their website not already been closed down? Moreover:

“… advertising in public space … should require increased neutrality on the part of the public authorities, with equal access for all individuals and entities that are not expressly prohibited …  [I]t is difficult to accept that a lawful association, with a website that has not been prohibited, should be prevented from promoting its ideas through posters that are not unlawful in themselves. As to the argument whereby, in accepting a poster campaign in public space, the municipal authorities would be endorsing or tolerating the opinions at issue, we find this not only rather unrealistic in relation to the current role of such authorities, but also dangerous. That would be tantamount to arguing, a contrario, that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed. Article 10 of the Convention would then risk becoming inoperative” (para  11).

Quite apart from the issue of the margin of appreciation, what this case demonstrates vividly is the extreme difficulty that the courts sometimes face in balancing the rights of individuals – however odd or extreme their views – against the entirely understandable desire of the state to maintain “peace and good order”.

For a more detailed anaylsis, see Rosalind English’s post on UKHRB: Alien poster campaign’s anti-religious message.

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