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.

1. The present case raises the interesting and n ovel 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 private ly-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 hypoth e ses – 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).

2. It should be pointed out in this connection that A rticle 10 also protects the form in which the ideas and opinions i n question are conveyed ( see Thoma v. Luxembourg , no. 38432/97, § 45 , ECHR 2001 ‑ III ).

3. 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 elemen ts should be taken into account in assessing whether or not there has been a violation:

( a) I t 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 accept ed 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 legalis ing , on the one hand, the association in question, but, on the other, prohibit ing 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 I nternet , 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 pri vate managers of public space . It is , therefore, neither realistic nor ne cessary in a democratic society to limit such access by restrictions of this kind .

For these reasons we have voted in favour of a violation.