GRA STIFTUNG GEGEN RASSISMUS UND
ANTISEMITISMUS v. SWITZERLAND JUDGMENT
15
and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012;
Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008; and
Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I),
the Court finds nothing to suggest that the applicant organisation was not in
a position to foresee, to a reasonable degree, the national appellate court’s
interpretation and application of Article 28 of the Civil Code to its case.
49. The Court therefore concludes that the impugned interference was
“prescribed by law”.
(c) Whether there was a legitimate aim
50. The Court finds that the interference pursued one of the legitimate
aims set out in paragraph 2 of Article 10, namely the protection of the
reputation and rights of others.
(d) Whether it was necessary in a democratic society
(i) General principles
51. Freedom of expression constitutes one of the essential foundations of
a democratic society and one of the basic conditions for its progress and for
each individual’s self-fulfillment. Subject to paragraph 2 of Article 10, it is
applicable not only to “information” or “ideas” that are favourably received
or regarded as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb. Such are the demands of pluralism, tolerance
and broadmindedness without which there is no “democratic society”
(see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A
no. 24; Lindon, Otchakovsky-Laurens and July v. France [GC],
nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV; and
Perinçek v. Switzerland [GC], no. 27510/08, § 196, 15 October 2015).
52. The adjective “necessary”, within the meaning of Article 10 § 2,
implies the existence of a “pressing social need”. The Contracting States
have a certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with European supervision, embracing both
the legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final ruling
on whether a “restriction” or “penalty” is reconcilable with freedom of
expression as protected by Article 10.
53. The Court’s task in exercising its supervisory function is not to take
the place of the national authorities but rather to review under Article 10 the
decisions they have taken pursuant to their power of appreciation. In so
doing, the Court must look at the “interference” complained of in the light
of the case as a whole and determine whether the reasons adduced by the
national authorities to justify it are “relevant and sufficient”. In doing so, the
Court has to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10 and,
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