Introductory Note to the European Court of Human Rights: Mouvement Raelien Suisse v. Switzerland (Eur. Ct. H.R.)
![handle is hein.journals/intlm51 and id is 997 raw text is: INTRODUCTORY NOTE TO THE EUROPEAN COURT OF HUMAN RIGHTS:
MOUVEMENT RAELIEN SUISSE V. SWITZERLAND (EUR. CT. H.R.)
BY MAURO GATTI*
[June 13, 2012]
+Cite as 51 ILM 925 (2012)+
Introduction
In Mouvement Raeien Suisse v. Switzerland,' the Grand Chamber (GC) of the European Court of Human Rights
(ECtHR or the Court) addressed the issue of freedom of expression in public spaces for the first time,
accepting that Member States have a broad margin of appreciation in this field, especially in respect of non-
political discourse. This case affects sensitive issues, such as content-based restrictions on freedom of speech and
the protection of minorities under the European Convention of Human Rights (ECHR).2 Perhaps unsurprisingly,
this judgment proved very divisive: eight out the seventeen judges that compose the GC voted against the judgment
and annexed lengthy dissenting opinions.
Background
The Raelian movement is a new religion founded in 1974 by a French journalist, whose aim is to make the first
contact and establish good relations with extraterrestrials. The Raelian dogma comprises issues such as sensual
meditation, support for human cloning, and geniocracy, i.e., government for the people, by the geniuses.3
Because of their controversial views and practices, Raelians have been subject to several accusations in different
countries, and they have sometimes been labeled as a cult.4
Raelians have a Swiss branch, Mouvement Raelien Suisse, whose existence and activities are generally tolerated
by local authorities. In 2001, however, the police of the Swiss city of Neuchatel denied the Raelians authorization
to conduct a poster advertising campaign, arguing that the movement engaged in activities that were contrary to public
order and immoral. Swiss courts upheld this decision and affirmed that individuals do not have an unconditional right
to an extended use of public space; in other words, when the state grants authorization for private use of public
space, the right to freedom of expression is weighed against the public interest. Swiss Courts considered that the
case had to be addressed in the wider framework of the Raslians' doctrines and practices, which they found to
be immoral and contrary to public order, particularly since Raelians theoretically condone pedophilia, advocate
geniocracy and human cloning, and their website is linked to the portal of a cloning-related company. Hence,
Swiss courts accepted the legality of the measures adopted by the Neuchatel police.
In 2006, Mouvement Raelien Suisse lodged an application with the ECtHR, claiming that the banning of its poster
by the Swiss authorities had breached its right to freedom of religion (Article 9 ECHR) and freedom of expression
(Article 10 ECHR). The First Section approached this case solely from the perspective of freedom of expression,
presumably because the applicant's capability to rely on freedom of religion is controversial, and, anyway, the
parties agreed that the applicant is entitled to rely on the right to freedom of opinion.6 The Court asserted that
Mouvement Raelien Suisse raised a new issue: whether public authorities should allow for the expression of ideas
by making public space available for that purpose.7 This case was found to differ from Women on Waves v.
Portugal, which concerned the use of public and open space, such as the territorial sea.s In practice, this meant
that in Mouvement Raelien Suisse, the state's discretion was broader than in Women on Waves-while anyone
can use a public and open space, a poster campaign in a public space may be associated with the government
that authorized it, and the latter should consequently be able to dissociate itself from that poster.9
In light of the above, the Court held that domestic authorities had not overstepped their margin of appreciation;
the general context of the case suggested that the decision of domestic authorities could be indispensable to protect
public order, health, and morals, and to prevent crime. The decision of the Swiss authorities was also found to
be proportional since it did not prevent the applicant from expressing its views through means other than poster
campaigns, including its own website. The First Section therefore concluded that Switzerland had not violated the
ECHR.
The Judgment of the Grand Chamber
The applicant asked for referral to the Grand Chamber. Consistently with the First Section, the GC took the view
that it was not required to examine the case in light of Article 9 ECHR, and approached it from the angle of
* Ph.D. candidate in European Union law at the University of Bologna and the University of Strasbourg.](ViewImageLocal?handle=hein.journals/intlm51&div=53&collection=&method=preview&ext=.png&size=3)
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Introductory Note to the European Court of Human Rights: Mouvement Raelien Suisse v. Switzerland (Eur. Ct. H.R.)
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