JOINT DISSENTING OPINION OF JUDGES PALM, PEKKANEN AND MAKARCZYK

1.   We regret that we are unable to agree with the majority that there has been no violation of Article 10 (art. 10).

2.   The Court is here faced with the necessity of balancing two apparently conflicting Convention rights against each other. In the instant case, of course, the rights to be weighed up against each other are the right to freedom of religion (Article 9) (art. 9), relied on by the Government, and the right to freedom of expression (Article 10) (art. 10), relied on by the applicant association. Since the case concerns restrictions on the latter right, our discussion will centre on whether these were "necessary in a democratic society" and therefore permitted by the second paragraph of Article 10 (art. 10-2).

3.   As the majority correctly state, echoing the famous passage in the Handyside v. the United Kingdom judgment (7 December 1976, Series A no. 24), freedom of expression is a fundamental feature of a "democratic society"; it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but particularly to those that shock, offend or disturb the State or any sector of the population. There is no point in guaranteeing this freedom only as long as it is used in accordance with accepted opinion.

It follows that the terms of Article 10 para. 2 (art. 10-2), within which an interference with the right to freedom of expression may exceptionally be permitted, must be narrowly interpreted; the State ’ s margin of appreciation in this field cannot be a wide one.

In particular, it should not be open to the authorities of the State to decide whether a particular statement is capable of "contributing to any form of public debate capable of furthering progress in human affairs"; such a decision cannot but be tainted by the authorities ’ idea of "progress".

4.   The necessity of a particular interference for achieving a legitimate aim must be convincingly established (see, as the most recent authority, the Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, p. 15, para. 35). This is all the more true in cases such as the present, where the interference as regards the seizure takes the form of prior restraint (see, mutatis mutandis, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, para. 60). There is a danger that if applied to protect the perceived interests of a powerful group in society, such prior restraint could be detrimental to that tolerance on which pluralist democracy depends.

5.   The Court has rightly held that those who create, perform, distribute or exhibit works of art contribute to exchange of ideas and opinions and to the personal fulfilment of individuals, which is essential for a democratic society, and that therefore the State is under an obligation not to encroach unduly on their freedom of expression (see the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 22, para. 33). We also accept that, whether or not any material can be generally considered a work of art, those who make it available to the public are not for that reason exempt from their attendant "duties and responsibilities"; the scope and nature of these depend on the situation and on the means used (see the Müller and Others judgment referred to above, p. 22, para. 34).

6.   The Convention does not, in terms, guarantee a right to protection of religious feelings. More particularly, such a right cannot be derived from the right to freedom of religion, which in effect includes a right to express views critical of the religious opinions of others.

Nevertheless, it must be accepted that it may be "legitimate" for the purpose of Article 10 (art. 10) to protect the religious feelings of certain members of society against criticism and abuse to some extent; tolerance works both ways and the democratic character of a society will be affected if violent and abusive attacks on the reputation of a religious group are allowed. Consequently, it must also be accepted that it may be "necessary in a democratic society" to set limits to the public expression of such criticism or abuse. To this extent, but no further, we can agree with the majority.

7.   The duty and the responsibility of a person seeking to avail himself of his freedom of expression should be to limit, as far as he can reasonably be expected to, the offence that his statement may cause to others. Only if he fails to take necessary action, or if such action is shown to be insufficient, may the State step in.

Even if the need for repressive action is demonstrated, the measures concerned must be "proportionate to the legitimate aim pursued"; according to the case-law of the Court, which we endorse, this will generally not be the case if another, less restrictive solution was available (see, as the most recent authority, the Informationsverein Lentia and Others judgment referred to above, p. 16, para. 39).

The need for repressive action amounting to complete prevention of the exercise of freedom of expression can only be accepted if the behaviour concerned reaches so high a level of abuse, and comes so close to a denial of the freedom of religion of others, as to forfeit for itself the right to be tolerated by society.

8.   As regards the need for any State action at all in this case, we would stress the distinctions between the present case and that of Müller and Others, in which no violation of Article 10 (art. 10) was found. Mr Müller ’ s paintings were accessible without restriction to the public at large, so that they could be - and in fact were - viewed by persons for whom they were unsuitable.

9.   Unlike the paintings by Mr Müller, the film was to have been shown to a paying audience in an "art cinema" which catered for a relatively small public with a taste for experimental films. It is therefore unlikely that the audience would have included persons not specifically interested in the film.

This audience, moreover, had sufficient opportunity of being warned beforehand about the nature of the film. Unlike the majority, we consider that the announcement put out by the applicant association was intended to provide information about the critical way in which the film dealt with the Roman Catholic religion; in fact, it did so sufficiently clearly to enable the religiously sensitive to make an informed decision to stay away.

It thus appears that there was little likelihood in the instant case of anyone being confronted with objectionable material unwittingly.

We therefore conclude that the applicant association acted responsibly in such a way as to limit, as far as it could reasonably have been expected to, the possible harmful effects of showing the film.

10. Finally, as was stated by the applicant association and not denied by the Government, it was illegal under Tyrolean law for the film to be seen by persons under seventeen years of age and the announcement put out by the applicant association carried a notice to that effect.

Under these circumstances, the danger of the film being seen by persons for whom it was not suitable by reason of their age can be discounted.

The Austrian authorities thus had available to them, and actually made use of, a possibility less restrictive than seizure of the film to prevent any unwarranted offence.

11. We do not deny that the showing of the film might have offended the religious feelings of certain segments of the population in Tyrol . However, taking into account the measures actually taken by the applicant association in order to protect those who might be offended and the protection offered by Austrian legislation to those under seventeen years of age, we are, on balance, of the opinion that the seizure and forfeiture of the film in question were not proportionate to the legitimate aim pursued.

[*]  Note by the Registrar.  The case is numbered 11/1993/406/485.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 295-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.