SEPARATE OPINION OF JUDGE MOSLER

(Translation)

1. I differ from the Court ' s reasoning on one point only. However, it is so decisive for the question of whether or not there has been a violation in this case that my view on this point of detail has compelled me to vote against paragraph 1 of the operative provisions of the judgment. I am not convinced that the measures taken by the British authorities, including the judgment of the Inner London Quarter Sessions, were "necessary", within the meaning of Article 10 para. 2 (art. 10-2), for the achievement of their aim, namely the protection of morals. Paragraph 2 of Article 10 (art. 10-2) allows the States to subject the exercise of everyone ' s right to freedom of expression to restrictions and penalties only if they are measures necessary, in a democratic society, for certain aims considered to be legitimate exceptions to the right guaranteed by paragraph 1 (art. 10-1). These aims include the protection of morals which is relied on by the Government. In the absence of one of the factors which, when found in combination, entitle the State to avail itself of the exception to the right to freedom of expression, paragraph 2 (art. 10-2) does not apply and the individual ' s right must be respected without any interference. However, my interpretation of the word "necessary" and my conception of its application to the impugned measures do not, in part, coincide with the Court ' s view. They have thus led to my contrary vote although I entirely approve the other reasons contained in the judgment and, inter alia, the opinions expressed on certain questions of principle concerning the scope of the Convention in relation to the States ' domestic legal systems and the definition of certain elements of the rights guaranteed and the exceptions permitted.

In order to leave no doubt about my agreement with the opinion of the Court insofar as it follows and develops more precisely existing case-law or adopts new and well-defined standpoints, I should like to emphasise that I accept in particular the passages on the Court ' s independence in the characterisation of facts (paragraph 41), on the respective powers of the Court and of the national authorities (problem of the "margin of appreciation" - cf., inter alia, paragraph 50) and on the examination of measures intended to protect morals in a democratic society (cf., inter alia, paragraph 48).

2. The measures inflicted on the applicant thus had a legitimate aim. They were taken pursuant to legislation that cannot be criticised under Article 10 para. 2 (art. 10-2). Nobody disputes their conformity with this legislation. They were "prescribed by law" within the meaning of the Convention.

However, the Court ' s supervision cannot stop there. Since the criteria in Article 10 para. 2 (art. 10-2) are autonomous concepts (cf. most recently, mutatis mutandis, the Engel and others judgment of 8 June 1976, Series A no. 22, p. 34, para. 81), the Court must investigate both whether it was "necessary", for the domestic authorities, to have recourse to the means they employed to achieve the aim and whether they overstepped the national margin of appreciation with a resultant violation of the common standard guaranteed by an autonomous concept.

What is "necessary" is not the same as what is indispensable (paragraph 48 of the judgment). Such a definition would be too narrow and would not correspond to the usage of this word in domestic law. On the other hand, it is beyond question that the measure must be appropriate for achieving the aim. However, a measure cannot be regarded as inappropriate, and hence not "necessary", just because it proves ineffectual by not achieving its aim. A measure likely to be effectual under normal conditions cannot be deprived of its legal basis after the event by failure to attain the success which it might have had in more favourable circumstances.

The greater part of the first edition of the book circulated without impediment. The measures taken by the competent authorities and confirmed by the Inner London Quarter Sessions prevented merely the distribution of under 10 per cent of the impression. The remainder, that is about 90 per cent, reached the public including probably, to a large extent, the adolescents meant to be protected (cf. the address of Mr. Thornberry at the hearing on 7 June 1976 ). The measures in respect of the applicant thus had so little success that they must be taken as ineffectual in relation to the aim pursued. In fact young people were not protected against the influence of the book that had been qualified as likely to "deprave and corrupt" them by the authorities, acting within their legitimate margin of appreciation.

The ineffectualness of the measures would in no way prevent their being considered appropriate if it had been due to circumstances beyond the influence and control of the authorities. However, that was not the case. Certainly it cannot be presumed that the measures were not taken in good faith and with the genuine intention of preventing the book ' s circulation. Above all, the carefully reasoned judgment of the Inner London Quarter Sessions excludes such a presumption. Nevertheless, from an objective point of view, the measures actually taken against the book ' s circulation could never have achieved their aim without being accompanied by other measures against the 90 per cent of the impression. Yet nothing in the case file, in particular in the addresses of those appearing before the Court, shows that action of this kind was attempted.

Under Article 10 para. 2 (art. 10-2), the authorities ' action in certain respects and their lack of action in others must be viewed as a whole. The aim, legitimate under Article 10 para. 2 (art. 10-2), of restricting freedom of expression in order to protect the morals of the young against The Little Red Schoolbook, is one and indivisible. The result of the authorities ' action as well as of their inaction must be attributed to the British State . It is responsible for the application of measures that were not appropriate with regard to the aim pursued because they covered only one small part of the object of the prosecution without taking the others into account.

Accordingly the measures chosen by the authorities were, by their very nature, inappropriate.

Furthermore some attendant facts must be reviewed.

I leave aside the fact, apparently not disputed between the State, the Commission and the applicant, that publications far more "obscene" than The Little Red Schoolbook were readily accessible to anyone in the United Kingdom . Assuming this to be correct, it does not prevent the authorities from having recourse to measures of prohibition against a book intended in particular for schoolchildren.

On the other hand, the diversity of the approaches adopted in different regions of the United Kingdom (paragraph 19 of the judgment) raises doubts about the necessity of the measures taken in London . Undoubtedly the Convention does not compel the Contracting States to pass uniform legislation for all the territory under their jurisdiction. Nevertheless, it does oblige them to act in such a way that the level of protection guaranteed by the Convention is maintained throughout the whole of that territory. In this case it is difficult to understand why a measure that was not thought necessary outside England and Wales was deemed to be so in London .

There remains the question whether the application of the contested measures, which were inappropriate from an objective point of view, fell within the margin left to the domestic institutions to choose between different measures having a legitimate aim and to assess their potential effectualness. In my view, the reply must be negative because of the clear lack of proportion between that part of the impression subjected to the said measures and that part whose circulation was not impeded. Admittedly the result of the action taken was the punishment of Mr. Handyside in accordance with the law, but this result does not by itself justify measures that were not apt to protect the young against the consequences of reading the book.

3. It must follow that the action complained of was not "necessary", within the meaning of Article 10 para. 2 (art. 10-2), with regard to the aim pursued. Such a measure is not covered by the exceptions to which freedom of expression can be subjected, even if the aim is perfectly legitimate and if the qualification of what is moral in a democratic society remained within the framework of the State ' s margin of appreciation.

The right enshrined in Article 10 para. 1 (art. 10-1) is so valuable for every democratic society that the criterion of necessity, which, when combined with other criteria, justifies an exception to the principle, must be examined from every aspect suggested by the circumstances.

It is only for this reason that I have regretfully voted against paragraph 1 of the operative provisions. As for paragraph 2, concerning Article 1 of Protocol No. 1 (P1-1) and two other Articles, I have rejoined the majority as I was bound by the prior decision on Article 10 (art. 10) and, on this basis, was quite able to accept the Court ' s reasons.