PARTLY DISSENTING OPINION OF JUDGE MARUSTE

To my regret I am unable to share the finding of the majority of the Chamber that the applicants ’ rights under Articles 10 and 11 of the Convention were not infringed. In my view, the property rights of the owners of the shopping mall were unnecessarily given priority over the applicants ’ freedom of expression and assembly.

The case raises the important issue of the State ’ s positive obligations in a modern liberal society where many traditionally S tate-owned services like post, transport, energy, health and community services and others have been or could be privatised. In this situation , should private owners ’ property rights prevail over other rights or does the State still have some responsibility to secure the proper balance between private and public interests?

The new town centre was planned and built originally by a body set up by the government (see paragraph 11 of the judgment ). At a later stage the shopping centre was privatised. The area was huge, with many shops and hypermarkets, and also included car parks and walkways. Because of its central nature , several important public services like the public library, the social services office, the health centre and even the police station were also located in or near to the centre. Through specific actions and decisions , the public authorities and public money were involved and there was an active presence of public agencies in the vicinity. That means that the public authorities also bore some responsibility for decisions about the nature of the area and access to and use of it.

There is no doubt that the area in its functional nature and essence is a forum publicum or “quasi-public” space, as argued by the applicants and clearly recognised also by the Chamber (see paragraph 44 of the judgment ). The place as such is not something which has belonged to the owners for ages. This was a new creation where public interests and money were and still are involved. That is why the situation is clearly distinguishable from the “my home is my castle” type of situation.

Although the applicants were not complaining about unequal treatment, it is evident that they had justified expectations of being able to use the area as a public gathering area and to have access to the public and its services on an equal footing with other groups , including local government (see paragraphs 20 and 34 of the judgment ) who had used the place for similar purposes without any restrictions.

The applicants sought access to the public to discuss with them a topic of a public, not private, nature and to contribute to the debate about the exercise of local government powers – in other words, for entirely lawful purposes. They acted as others did, without disturbing the public peace or interfering with business by other unacceptable or disruptive methods.

In these circumstances , it is hard to agree with the Chamber ’ s finding that the authorities bear no direct responsibility for the restrictions applied to the applicants. In a strict and formal sense that is true. But it does not mean that there were no indirect responsibilities. It cannot be the case that through privatisation the public authorities can divest themselves of a ll responsibility to protect rights and freedoms other than property rights. They still bear responsibility for deciding how the forum created by them is to be used and for ensuring that public interests and individuals ’ rights are respected. It is in the public interest to permit reasonable exercise of individual rights and freedoms, including the freedoms of speech and assembly on the property of a privately owned shopping centre, and not to make some public services and institutions inaccessible to the public and participants in demonstrations. The Court has consistently held that , if there is a conflict between rights and freedoms, the freedom of expression takes precedence. But in this case it appears to be the other way round – property rights prevailed over freedom of speech.

Of course, it would clearly be too far-reaching to say that no limitations can be put on the exercise of rights and freedoms on private land or premises. They should be exercised in a manner consistent with respect for owners ’ rights too. And that is exactly what the Chamber did not take into account in this case. The public authorities did not carry out a balancing exercise and did not regulate how the privately owned forum publicum was to be used in the public interest. The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society. Consequently, the State failed to discharge its positive obligations under Articles 10 and 11.