CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (no. 2)
(Application no. 32772/02)
30 June 2009
This judgment is final but may be subject to editorial revision.
In the case of Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2),
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mihai Poalelungi, judges,
and Erik Fribergh, Registrar,
Having deliberated in private on 9 July 2008 and on 27 May 2009,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the respondent Government
Mr F. Schürmann, head of the Human Rights and Council of
Europe Section, Federal Office of Justice, Federal
Department of Justice, Agent,
Mr A. Scheidegger, deputy head of the Human Rights and
Council of Europe Section,
Mr F. Zeller, legal adviser to the Director, Federal Office of
Communication, Federal Department of Environment,
Transport, Energy and Communication,
Ms C. Ehrich, legal officer, Human Rights and Council of
Europe Section, Advisers;
(b) for the applicant association
Mr E. Kessler, president of the applicant association,
Ms C. Zeier Kopp, deputy director of the applicant
The Court heard addresses by Mr Kessler and Mr Schürmann and also their replies to questions from its members.
I. THE CIRCUMSTANCES OF THE CASE
A. Application no. 24699/94 and the Court's judgment of 28 June 2001
The first scene showed a sow building a shelter for her piglets in the forest. With soft music playing in the background, the voiceover referred, among other things, to the pigs' sense of family. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The voiceover compared the conditions in which pigs were reared to concentration camps, and added that the animals were pumped full of medicines. The advertisement concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!”
In respect of the applicant association's complaint under Article 10 of the Convention, the Federal Court found that the prohibition of political advertising laid down in section 18(5) of the Federal Radio and Television Act pursued various aims; in particular, it was designed to prevent financially powerful groups from obtaining a competitive political advantage, to protect the formation of public opinion from undue commercial influence, to bring about a certain equality of opportunity among the different forces of society, and to contribute towards the independence of radio and television broadcasters in editorial matters.
The Court found that the measure taken had been “prescribed by law” and had pursued a legitimate aim for the purposes of Article 10 § 2.
As to whether the measure had been “necessary in a democratic society” within the meaning of that provision, the Court noted, in particular, that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster's independence, unduly influencing public opinion or endangering equality of opportunity among the different forces of society. On the contrary, it had simply intended to participate in an ongoing general debate on the protection and rearing of animals. Accordingly, in the Court's opinion, the authorities had not demonstrated in a “relevant and sufficient” manner why the grounds generally advanced in support of the prohibition of political advertising could also serve to justify the interference in the particular circumstances of the case (ibid., § 75).
The Court also found that there had been no violation of Articles 13 and 14 of the Convention. As to the application of Article 41, it ordered Switzerland to pay the sum of 20,000 Swiss francs (CHF – approximately 13,300 euros (EUR) today) for costs and expenses. However, it made no award to the applicant association for non-pecuniary damage.
B. Subsequent proceedings before the Swiss authorities
Application for review
“In the case of Verein gegen Tierfabriken Schweiz (VgT), 9546 Tuttwil, v. Swiss Radio and Television Company, Publisuisse SA and the Federal Department of Environment, Transport, Energy and Communication (DETEC):
I hereby request on behalf of VgT that the Federal Court's judgment of 20 August 1997 be reviewed and that the administrative-law appeal of 18 June 1996 be allowed.
Reasons: In its judgment of 28 June 2001 the European Court of Human Rights upheld an application challenging the Federal Court judgment of which I am seeking a review (see Annex 1). The judgment was served on 25 October 2001 (see Annex 2); this application for review has therefore been lodged in time.
Yours faithfully ...”
3.1 Section 140 of the Federal Judicature Act provides that an application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time. It is not enough simply to claim that the ground exists; it is also necessary to explain why, and to what extent, the operative provisions must be amended as a result (Elisabeth Escher, 'Revision und Erläuterung', note 8.28, in Geiser/Münch, Prozessieren vor Bundesgericht, 2nd ed., Basle 1998).
3.2 The application to reopen the proceedings in the instant case does not meet these formal requirements. The applicant association has sought the review of the Federal Court's judgment without explaining the extent to which this is necessary following the European Court's judgment of 28 June 2001. VgT evidently assumes that the Strasbourg Court's decision against Switzerland in itself makes the reopening of the proceedings necessary, but that is not the case. The mere fact that the Court, ruling on an individual application, has found a violation of the Convention does not mean that the Federal Court judgment in issue must automatically be reviewed in accordance with domestic law (see judgment 2A.363/2001 of 6 November 2001 in the Boultif case, point 3a/cc; Martin Philip Wyss, 'EMRK-Verletzung und bundesrechtliche Revision nach Art. 139a OG', in recht 1999, p. 100; Schürmann, op. cit., p. 100; Hottelier, op. cit., p. 749; BBl 1991 II 465, p. 529). Being a subsidiary remedy, reopening is justified only if it appears to remain necessary notwithstanding the compensation awarded by the European Court of Human Rights and constitutes the only means of obtaining redress (see Schürmann, op. cit., p. 102; Wyss, op. cit., p. 99). The application to reopen the proceedings must give at least a broad indication of how redress may be obtained only by this means (see judgment 2A.363/2001 of 6 November 2001 in the Boultif case, point 3b/cc).
Publisuisse SA evidently once again refused to conclude an advertising agreement with VgT, which appealed against the refusal to the Federal Office of Communication; the proceedings are still pending. By taking this action, VgT itself proves that it is not continuing to suffer any practical adverse effects that can only be redressed by reopening the proceedings. It does not claim that it still has an interest in having the original commercial broadcast; it is, moreover, unlikely that this is the case, since VgT's primary objective is no longer (solely) to encourage a decline in meat consumption and to denounce the conditions in which animals are reared (which are also likely to have changed in the almost eight years since the commercial was intended to have been broadcast), but to publicise the Court's finding of a violation of its freedom of expression. It is thus no longer the same commercial that is under discussion today. The consequences of the Convention violation committed at the time were redressed as a result of the judgment against Switzerland and the award of just satisfaction under Article 41 of the ECHR; the new agreement which VgT now wishes to conclude must form the subject of separate proceedings.
4.2 In its judgment of 20 August 1997 the Federal Court held that VgT's commercial was subject to the public-law prohibition on political advertising set forth in section 18(5) of the Federal Radio and Television Act and could provide the Swiss Radio and Television Company, or rather Publisuisse SA, with a valid reason for not concluding the advertising agreement. The European Court of Human Rights did not share this view and held that there was no justification in a democratic society for refusing to broadcast a commercial on the ground that it constituted political advertising, which was banned on television. The Court did not express an opinion on whether and to what extent Switzerland, by not ensuring that the commercial could be broadcast, had breached any positive obligations resulting from the extension of the Convention safeguards to relations between private entities (see paragraph 46 of the Court's judgment). The subject of the Federal Court's judgment was the finding by the authorities that VgT's commercial could be considered 'political' within the meaning of the Radio and Television Act and that the refusal to broadcast it could be justified on this public-law ground alone. The judgment did not deal with the question whether the Swiss Radio and Television Company had boycotted VgT, whether the company dominated the advertising market and whether, on that account, it would have been under an obligation to conclude an advertising agreement. These (civil-law) aspects of an obligation to contract must be addressed in the appropriate form of civil proceedings (concerning cartel law, competition law or the general law relating to personality rights) and not under the law governing trading licences. This argument, which Switzerland put forward, was not contested by the European Court.
4.3 In this connection, by enacting the relevant (civil) legislation and establishing judicial remedies to implement it, Switzerland has complied with its positive obligation under Article 10 of the ECHR to ensure the appropriate realisation among private entities of the rights guaranteed by the Convention. The rules of competition and cartel law or the possibility of asserting a civil-law obligation to contract are intended to encourage a means of implementing fundamental rights that is fair and strikes a balance between the various interests at stake in the sphere of economic relations between private entities. VgT is free to use this legal remedy in seeking to have its commercial broadcast, provided that, contrary to what has been said above, it still has a real interest in the broadcast; in that eventuality, due regard will have to be had in the proceedings to its constitutional rights and the principles enshrined in Article 10 of the ECHR (see Article 35 of the Federal Constitution). The judgment of the European Court of Human Rights does not conflict with this view; however, all that can be inferred from the judgment is that the classification of the commercial as 'political advertising' did not justify refusing to broadcast it, or that the broadcasting of the commercial by the Swiss Radio and Television Company, on the basis of Article 10 of the ECHR, should not have had any consequences for the broadcaster under the law relating to trading licences. The Swiss Radio and Television Company rightly points out that the judgment cannot be construed as requiring it to broadcast the commercial in issue in breach of the existing legal rules (such as the provisions of the Federal Unfair Competition Act), since the European Court did not address the corresponding questions, limited itself to examining the issue of 'political' advertising and did not state any position on the Swiss Radio and Television Company's 'negative' freedom of expression. Since the Court's judgment simply finds that the prohibition of political advertising on television must not stand in the way of broadcasting the commercial, VgT must seek to have it broadcast through recourse to the civil courts and not through the reopening procedure, should the Swiss Radio and Television Company, or rather Publisuisse SA, still refuse to broadcast it (see Ulrike Preissler, Die Zulässigkeit ideeller Werbung im Fernsehen, dissertation, Bonn 1994, pp. 113 et seq.; Martin Dumeruth, 'Rundfunkrecht', in Koller/Müller/Rhinow/ Zimmerli (eds.), Schweizerisches Bundesverwaltungsrecht, Basle 1996, note 126; Rolf H. Weiss, 'Rechtliche Grundlagen für Werbung und Sponsoring', in SMI 1993, pp. 213 et seq., in particular p. 226, footnote 58).
4.4 The Swiss Radio and Television Company cannot be directly ordered to broadcast the commercial in issue, since the Federal Court has no power in public law to give such an order. The applicant association had requested the Federal Office of Communication to issue a declaratory order to the effect that, under Article 10 of the Convention, VgT was entitled to have its commercial broadcast ('right to broadcast advertising'). The Federal Court acknowledged from a procedural point of view that a right to have such an order issued existed (section 25 of the Federal Administrative Procedure Act in conjunction with Article 13 of the ECHR) but ruled in the instant case – wrongly in the European Court's view – on the basis of section 18(5) of the Federal Radio and Television Act that there was no right of access to television for political advertising. If the Federal Court had decided in the same way as the European Court, it would have had to limit itself to finding that the Swiss Radio and Television Company had not been entitled to refuse to broadcast the commercial on the ground that it was political in nature, or rather that reliance on this ground for the refusal was contrary to Article 10 of the ECHR. On the other hand, given the lack of legal basis, the Federal Court could not have ordered the Swiss Radio and Television Company to broadcast the commercial in the context of proceedings governed by broadcasting legislation (see Dumermuth, op. cit., note 491). VgT is now seeking such an order solely by way of the reopening procedure, but it cannot obtain it in relation to the decision to be reviewed. The Federal Court cannot make an order, following a judgment of the Strasbourg Court, that it was not empowered to make in the original proceedings (see judgment 2A.232/2000 of 2 March 2001 in the Amann case, point 3b/bb, published in EuGRZ 2001, p. 322).
C. Resolution of the Committee of Ministers of the Council of Europe of 22 July 2003
“... Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; ...
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution; ...
Declares, after having taken note of the information supplied by the Government of Switzerland, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.
Appendix to Resolution ResDH(2003)125: Information provided by the Government of Switzerland during the examination of the Verein gegen Tierfabriken (VgT) case by the Committee of Ministers
As regards individual measures, the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court's judgment of 20 August 1997.
Concerning general measures, the judgment has been sent out to the Federal Office of Communication, the Federal Department for Environment, Transport, Energy, and Communication and to the Federal Court.
In addition, the Court's judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération n.65/IV(2001), and can be consulted on the following website: ... The judgment has also been mentioned in the Federal Council Annual report on the Swiss activities at the Council of Europe in 2001, which has been published in the Feuille fédérale n.8/2002.
The Government of Switzerland considers that, given the information mentioned above, there will no longer exist a risk of a repetition of the violation found in the present case and, consequently, Switzerland has satisfied its obligations under Article 46 § 1 of the Convention.”
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Relevant domestic law and practice
Section 139a: Breach of the European Convention on Human Rights
“1. A decision of the Federal Court or of a lower court may be reviewed if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has granted an individual application on account of a breach of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and redress is possible only through such a review.
2. If the Federal Court determines that a review is called for, but a lower court has jurisdiction, it shall refer the case to the lower court to reopen proceedings in the matter.
3. The cantonal court shall then decide on the application for a review even if cantonal law does not envisage such a ground for the reopening of proceedings.”
Section 140: Application for review
“The application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time; it must also state the nature of the amendment of the judgment and the redress being sought.”
“... The judgment of the European Court of Human Rights may afford the applicant satisfaction and, through the award of CHF 40,000, financial compensation for the cost of the proceedings. But it does not remove the restrictions imposed on the applicant by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994. These restrictions may be upheld only within the bounds of necessity as defined by the European Court. Since those restrictions may be lifted or limited only by means of an appeal to the Federal Court, the requirement of section 139a of the Federal Judicature Act is met ...”
Section 122: Breach of the European Convention on Human Rights
“An application for review of a judgment of the Federal Court on account of a violation of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (ECHR) may be submitted if the following conditions are satisfied:
(a) the European Court of Human Rights, in a final judgment, has found a violation of the ECHR or its Protocols;
(b) compensation cannot remedy the effects of the violation;
(c) the review is necessary to remedy the effects of the violation.”
“As to the law:
1. By virtue of section 122, point (a), of the Federal Court Act, an application for review of a judgment of the Federal Court on account of a violation of the ECHR may be submitted if the European Court, in a final judgment, has found a violation of the ECHR or its Protocols. In such an event, the application for review must be lodged with the Federal Court no later than 90 days after the European Court's judgment has become final within the meaning of Article 44 of the ECHR (section 124(1)(c) of the Federal Court Act). Having been parties to the proceedings that resulted in the impugned judgment, the applicants have locus standi. The judgment became final on 13 March 2008; the application has therefore been lodged in time. The application also states the ground relied on for reopening the proceedings and the nature of the amendment of the judgment being sought; it should therefore be considered on the merits.
The submission that the Confederation should be ordered to pay the applicants the sums awarded by the European Court in respect of non-pecuniary damage and costs and expenses cannot, however, be dealt with in the present review proceedings. Accordingly, it is inadmissible.
2. The basis in section 122 of the Federal Court Act for reopening the proceedings is subject to several conditions. Thus, an individual application must have been upheld by the European Court in a final judgment finding a violation of a right guaranteed by the ECHR (point (a)); compensation cannot remedy the effects of the violation (point (b)); and the review must be necessary to remedy the effects of the violation (point (c)). The conditions laid down in this provision are similar to those which applied under the Federal Judicature Act (section 139a), with the result that, in principle, the case-law under the previous legislation retains its full force.
2.1 In the instant case the European Court found that the severing of the mother-child relationship following the child's adoption by her mother's partner constituted, in the particular circumstances of the case, unjustified interference with the applicants' right to respect for family life and, on that account, a violation of Article 8 of the ECHR. The European Court's judgment has, moreover, been final since 13 March 2008 (section 122, point (a), of the Federal Court Act). Furthermore, it is clear that no award of compensation can afford redress for the loss of the mother-child relationship as a result of the adoption (section 122, point (b), of the Federal Court Act). The first two conditions in section 122 of the Federal Court Act are therefore satisfied.
2.2. It remains to be ascertained whether a review of the Federal Court's judgment is necessary to remedy the effects of the violation of Article 8 of the ECHR (section 122, point (c), of the Federal Court Act). The mere fact that there has been a breach of the Convention does not mean that the decision referred to the European Court has to be reviewed. This follows from the very nature of the reopening procedure, which is an extraordinary remedy. Accordingly, if there is another ordinary remedy that could afford redress, that remedy should be used first. The answer to this question depends on the nature of the Convention violation that has been found. Where only material interests remain at stake, the proceedings cannot in principle be reopened. However, where the unlawful situation persists despite the European Court's finding of a violation of the Convention, a review is possible. The proceedings are then reopened within the limits of the relevant ground (see, with reference to the Federal Judicature Act, judgment 2A.232/2000 of 2 March 2001, point 2b/bb, published in: Pra 2001 no. 92, p. 538, and the judgments cited; and, with reference to the Federal Court Act, Elisabeth Escher, in Basler Kommentar BGG, Basle 2008, note 6 on section 122; judgment 1F_1/2007 of 30 July 2007, point 3.2).
The European Court held on this point that the annulment of the adoption for lack of consent would not be able to remedy the effects of adoption at the origin of the dispute. An action to that end could not, according to the European Court's case-law, be regarded as an effective remedy on the basis of which a plea of inadmissibility could be raised against the applicants for failure to exhaust domestic remedies. The European Court also held that the adopter and the adopted person's mother could not be required to marry in order to restore the adopted person's relationship with her mother. In the Court's view, it is not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wish to adopt. The concept of family under Article 8 of the ECHR is, moreover, not confined to marriage-based relationships. Accordingly, unless the mother-daughter relationship is restored and an amendment to that effect is made to the civil-status register, it must be acknowledged that the unlawful situation will persist.
Accordingly, the application for review should be allowed and the judgment of 28 May 2003 should be set aside.
B. Relevant international law and practice
1. Execution of the Court's judgments
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to bring about a closer union between its members;
Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter 'the Convention');
Noting that under Article 46 of the Convention ... the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights ('the Court') in any case to which they are parties and that the Committee of Ministers shall supervise its execution;
Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum);
Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system;
Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court's judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum;
I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum;
II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where:
(i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and
(ii) the judgment of the Court leads to the conclusion that
(a) the impugned domestic decision is on the merits contrary to the Convention, or
(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.
Explanatory memorandum on Recommendation R (2000) 2:
Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist.
“Since the Court does not tell states how to apply its decisions, they must consider how to do so themselves. The obligation to comply with judgments is an obligation to produce a specific result – to prevent further violations and repair the damage caused to the applicant by the violation.”
1. The exercise of the powers of the Committee of Ministers under Article 46, paragraphs 2 to 5, and Article 39, paragraph 4, of the European Convention on Human Rights, is governed by the present Rules.
Rule 6: Information to the Committee of Ministers on the execution of the judgment
1. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention.
2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine:
a. whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and
b. if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether:
i. individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;
ii. general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.
Rule 7: Control intervals
1. Until the High Contracting Party concerned has provided information on the payment of the just satisfaction awarded by the Court or concerning possible individual measures, the case shall be placed on the agenda of each human rights meeting of the Committee of Ministers, unless the Committee decides otherwise.
2. If the High Contracting Party concerned informs the Committee of Ministers that it is not yet in a position to inform the Committee that the general measures necessary to ensure compliance with the judgment have been taken, the case shall be placed again on the agenda of a meeting of the Committee of Ministers taking place no more than six months later, unless the Committee decides otherwise; the same rule shall apply when this period expires and for each subsequent period.
Rule 8: Access to information
1. The provisions of this Rule are without prejudice to the confidential nature of the Committee of Ministers' deliberations in accordance with Article 21 of the Statute of the Council of Europe.
2. The following information shall be accessible to the public unless the Committee decides otherwise in order to protect legitimate public or private interests:
a. information and documents relating thereto provided by a High Contracting Party to the Committee of Ministers pursuant to Article 46, paragraph 2, of the Convention;
b. information and documents relating thereto provided to the Committee of Ministers, in accordance with the present Rules, by the injured party, by non-governmental organisations or by national institutions for the promotion and protection of human rights.
Rule 9: Communications to the Committee of Ministers
1. The Committee of Ministers shall consider any communication from the injured party with regard to payment of the just satisfaction or the taking of individual measures.
2. The Committee of Ministers shall be entitled to consider any communication from non-governmental organisations, as well as national institutions for the promotion and protection of human rights, with regard to the execution of judgments under Article 46, paragraph 2, of the Convention.
3. The Secretariat shall bring, in an appropriate way, any communication received in reference to paragraph 1 of this Rule, to the attention of the Committee of Ministers. It shall do so in respect of any communication received in reference to paragraph 2 of this Rule, together with any observations of the delegation(s) concerned provided that the latter are transmitted to the Secretariat within five working days of having been notified of such communication.
Rule no. 16: Interim resolutions
In the course of its supervision of the execution of a judgment or of the terms of a friendly settlement, the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of the execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution.
Rule no. 17: Final resolution
After having established that the High Contracting Party concerned has taken all the necessary measures to abide by the judgment or that the terms of the friendly settlement have been executed, the Committee of Ministers shall adopt a resolution concluding that its functions under Article 46, paragraph 2, or Article 39, paragraph 4, of the Convention have been exercised.”
2. Obligations on States under general international law
Article 35: Restitution
“A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Preliminary objections
1. Failure to exhaust domestic remedies
(a) The parties' submissions
(b) The Chamber judgment
“34. The Court observes that the applicant association's application to reopen the proceedings was worded in a very cursory fashion barely satisfying the requirements of section 140 of the former Federal Judicature Act. Nevertheless, since the Federal Court, after stating the grounds for declaring the request inadmissible, concluded that the applicant association had not sufficiently shown that it still had an interest in broadcasting the original version of the commercial, the Court considers, in the light of its case-law, that this complaint cannot be dismissed for failure to exhaust domestic remedies, seeing that the Federal Court ruled on the merits of the case, albeit briefly (see, mutatis mutandis, Huber v. Switzerland, no. 12794/87, Commission decision of 9 July 1988, Decisions and Reports (DR) 57, p. 259; Chammas v. Switzerland, no. 35438/97, Commission decision of 30 May 1997; Jamal Aldin v. Switzerland, no. 19959/92, Commission decision of 23 May 1996; Thaler v. Austria (dec.), no. 58141/00, 15 September 2003; Voggenreiter v. Germany (dec.), no. 47169/99, 28 November 2002; and Atik v. Germany (dec.), no. 67500/01, 13 May 2004), in finding it probable that the association no longer had any interest in having the original version of the commercial shown on television.
35. It follows that the complaint under Article 10 cannot be dismissed for failure to exhaust domestic remedies.”
(c) The Court's assessment
2. Lack of jurisdiction ratione materiae
(a) The Chamber judgment
“51. It must therefore be determined whether the Federal Court's judgment of 29 April 2002 constitutes a fresh interference with the applicant association's freedom of expression that may be examined on the merits by the Court.
52. The Court considers it useful to point out that the present case is not a 'typical' one involving the reopening of criminal proceedings following a finding of a violation of Article 6 of the Convention (see, for example, the cases of Sejdovic, Lyons and Others and Krčmář and Others, all cited above), but relates to the refusal to reconsider the prohibition on broadcasting a television commercial, and hence to Article 10 of the Convention. In that respect it is comparable to the case of Hertel (dec.) cited above. It should be noted, however, that in the Hertel case the Federal Court granted the applicant's application to reopen the proceedings, lifting to a significant extent the restrictions on his freedom of expression. The Committee of Ministers, moreover, concluded the procedure before it by means of a final resolution that took due account of the amendments to the Federal Court judgment held by the Court to have infringed Article 10.
In view of these significant differences, the Court must consider whether its approach in the Hertel decision (cited above), which entailed examining whether the allegations of a fresh violation of Article 10 were well-founded rather than declaring them inadmissible as being incompatible ratione materiae with the Convention or its Protocols, is also feasible in the present case.
53. With regard to the measures taken by the Swiss Government in order to discharge their obligations under Article 46 § 2 of the Convention, it is not disputed that they paid the sums which the Court had awarded the applicant association for costs and expenses under Article 41 in its judgment. It is also clear from Resolution ResDH(2003)125 of 22 July 2002 that the Court's judgment was disseminated among the appropriate authorities and published in the journal Jurisprudence des autorités administratives de la Confédération and on the Internet (see paragraph 16 above).
54. It should also be noted that the Committee of Ministers concluded its examination of application no. 24699/94 by noting the possibility of an application for review before the Federal Court, in other words without awaiting the outcome of that procedure, which was available under Swiss law (see the Appendix to the Resolution in paragraph 16 above).
55. The Court further reiterates that the Convention is intended to guarantee rights that are not theoretical or illusory but practical and effective (see, mutatis mutandis, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 16, § 33, and Bianchi v. Switzerland, no. 7548/04, § 84, 22 June 2006).
It is true that the Convention does not require the States Parties to institute procedures for the fresh examination of a case following a finding of a violation by the Court (see Saïdi, cited above, p. 57, § 47, and Pelladoah, cited above, p. 36, § 44). The Court would nevertheless emphasise that the availability of such a procedure in Swiss law may be regarded as an important aspect of the execution of its judgments and demonstrates a Contracting State's commitment to the Convention and the case-law to which it has given rise (see, mutatis mutandis, Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285 C, p. 56, § 15, and Lyons and Others, cited above).
However, its availability in domestic law is not sufficient in itself. The domestic court concerned, namely the Federal Court, must in addition apply the Convention and the Court's case-law directly (see also, mutatis mutandis, regarding the right of access to a court and the effectiveness required of an ordinary appeal or an appeal on points of law, Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, pp. 13-15, §§ 25 et seq.). This appears especially important in the present case since the Committee of Ministers closed the procedure for supervising execution of the Court's judgment by simply referring to the availability of the remedy of an application for review, without awaiting its outcome. It is clear that a reference to a remedy which proves incapable of affording effective and practical redress where a Convention violation has been found will deprive applicants of their right to have the effects of the violation redressed as far as possible.
56. Lastly, it follows from a grammatical interpretation of section 139a of the former Federal Judicature Act (see 'Relevant domestic law and practice', paragraph 19 above) that an application to the Federal Court for reopening of the proceedings is a subsidiary means of redress, seeing that this provision states that such an application will be admissible where '... redress is possible only through such a review'.
It has to be noted in the present case that in its judgment of 28 June 2001 the Court did not make any award to the applicant association in respect of non-pecuniary damage. In the absence of any claim by the association under that head, it did not even express the opinion that the finding of a violation of Article 10 could be regarded as constituting adequate and sufficient redress for the non-pecuniary damage it had sustained. Accordingly, reopening of the proceedings before the Federal Court with a view to obtaining restitutio in integrum – the ideal form of reparation in international law – would have enabled the effects of the violation found by the Court to be redressed as far as possible (see, to similar effect, Pisano, cited above, § 43; Scozzari and Giunta, cited above, § 249; and Sejdovic, cited above, § 119; see also, for a practical example of the application of the relevant Swiss law, Hertel (dec.), cited above, in which the applicant had the general prohibition on disseminating his views lifted following his application to the Federal Court for a review (see 'Relevant domestic law and practice', paragraph 21 above).
57. The Court is also mindful of the fact that the application to reopen the proceedings in the present case was worded in a very cursory fashion barely satisfying the requirements of section 140 (see 'Relevant domestic law and practice', paragraph 20 above). Nevertheless, the Federal Court's findings as to the applicant association's interest in broadcasting the commercial, while brief, were capable of giving rise to a fresh interference with the applicant association's freedom of expression.
58. The Court therefore considers that the complaint under Article 10 concerning the Federal Court's refusal to review its judgment of 20 August 1997 must be regarded as raising a new issue that was not determined in the Court's judgment of 28 June 2001, and is accordingly compatible ratione materiae with the provisions of the Convention and its Protocols. ...”
(b) The parties' submissions
(i) The Government
(ii) The applicant association
(iii) Third party
(a) where the reopening of the proceedings was not possible because domestic law did not provide for such a possibility;
(b) where an application to reopen proceedings was rejected as inadmissible for failure to meet the statutory requirements (for example, the time-limit for an application, procedural requirements, subsidiarity); and
(c) where the competent national courts, having allowed an application to reopen proceedings, gave a decision on the same grounds as those criticised by the Court, provided that such an approach was justified under the Convention (for example, by an intervening change in the circumstances of the case).
(c) The Court's assessment
(ii) Application in the present case
1. The parties' submissions
(a) The applicant association
(b) The Government
(c) Third party
2. The Court's assessment
(a) The Chamber judgment
“62. In its judgment of 28 June 2001 the Court found that the measure in issue was not 'necessary in a democratic society', among other reasons because the authorities had not demonstrated in a 'relevant and sufficient' manner why the grounds generally advanced in support of the prohibition of political advertising also served to justify the interference in the particular circumstances of the applicant association's case (see Verein gegen Tierfabriken (VgT), cited above, § 75).
In the instant case the Federal Court refused the applicant association's application to reopen the proceedings on the ground that the association had not provided a sufficient explanation of the nature of 'the amendment of the judgment and the redress being sought', as it was formally required to do by section 140 of the former Federal Judicature Act (see paragraph 20 above).
However, the Court considers that that approach is overly formalistic, seeing that it followed from the circumstances of the case as a whole that the association's application necessarily concerned the broadcasting of the commercial in question, which had been prohibited by the Federal Court itself on 20 August 1997.
Furthermore, the Federal Court nevertheless added that the applicant association had not sufficiently shown that it still had an interest in broadcasting the original version of the commercial. In doing so, it effectively took the place of the applicant association in deciding whether there was still any purpose in broadcasting the commercial. However, it failed to give its own explanation of how the public debate on battery farming had changed or become less topical since 1994, when the commercial was initially meant to have been broadcast.
63. Accordingly, the Court, while conscious of the Swiss authorities' margin of appreciation in the matter (see Verein gegen Tierfabriken (VgT), cited above, § 67), is not satisfied that the Federal Court applied domestic law in conformity with the principles embodied in Article 10 of the Convention. That being so, the reasons given by the Swiss Federal Court, having regard to the case as a whole and to the interest of a democratic society in ensuring and maintaining freedom of expression in matters of indisputable public interest, were not 'relevant and sufficient' to justify the interference in issue.”
(b) Positive obligation on the respondent State to take the necessary measures to allow the television commercial to be broadcast
(i) Preliminary remarks
(ii) Principles governing the execution of the Court's judgments
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
(iii) Application of the above principles in the instant case
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant association, within three months, EUR 4,000 (four thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant association, to be converted into Swiss francs at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 30 June 2009.
Erik Fribergh Jean-Paul Costa
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) dissenting opinion of Judge Malinverni joined by Judges Bîrsan, Myjer and Berro-Lefèvre;
(b) dissenting opinion of Judge Sajó;
(c) dissenting opinion of Judge Power.
DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGES BÎRSAN, MYJER AND BERRO-LEFÈVRE
DISSENTING OPINION OF JUDGE SAJÓ
I voted against finding the application admissible.
The original 2001 judgment of the Court (hereinafter “the original judgment”) did not order any specific action to be taken. On the contrary, the Court found it necessary to emphasise in the case “that its judgment is essentially declaratory” (see paragraph 78 of the original judgment). It follows that it is up to the Contracting States to determine how to organise the broadcasting of television commercials in order to perform their obligations under the Convention.
The operative part of the original judgment declares that Article 10 of the Convention has been violated. But there was no specific obligation imposed on the State. The applicant association did not ask for any specific remedy in its application (see paragraph 3 of the original judgment).
On 31 October 2001 the applicant association applied to Publisuisse SA for permission to broadcast the original commercial, to which a commentary was added which referred to the Court's judgment and contained remarks about the conduct of the Swiss Radio and Television Company and the Swiss authorities.
On 30 November 2001 Publisuisse SA refused to grant permission to broadcast the commercial. The applicant association lodged an appeal with the Federal Office of Communication, which observed in 2003 that it was not empowered to force Publisuisse SA to broadcast the commercial. The applicant association did not avail itself of the administrative-law and civil-law remedies available in respect of the decision of the Federal Office of Communication and simply submitted an application to the Court.
The day after the refusal by Publisuisse SA, parallel to making use of the remedy that is available in the event of refusal to broadcast a commercial, the applicant association turned to the Federal Court with an application for the Federal Court's judgment of 20 August 1997 to be reviewed (this was the decision upholding the original refusal by Publisuisse SA). The application was refused as the applicant association failed to show that such a review was necessary. Showing of necessity is a condition for reopening proceedings in Swiss law. In fact, if the applicant association wished to have the original commercial broadcast, the existence of the judgment of the Federal Court, which was found by the Court (in its original judgment) to amount to a violation of Article 10 of the Convention, did not constitute an obstacle to this. Publisuisse SA refused to broadcast the commercial in view of other considerations. The appeal against Publisuisse SA's 2001 refusal decision was pending at the time the Federal Court denied the request to reopen the proceedings.
The judgment (paragraph 19) describes the contested commercial as being the same commercial “with the addition of a comment referring to the Court's judgment and criticising the conduct of the Swiss Radio and Television Company and the Swiss authorities”.
The addition of these remarks would have changed the original message to a considerable extent. The amended commercial would have contained a completely new idea (criticism of the authorities) and was seeking a stamp of official condemnation. The new demands go beyond the original commercial, which dealt with the conditions of pig farming. As the Federal Court concluded, the applicant association wanted to publicise the fact that the Court had found that its freedom of expression rights had been violated, which in the view of the Federal Court turned the commercial into a different one (see point 3.3 of the Federal Court decision, quoted in paragraph 23 of the judgment). The Federal Court evaluated the facts, finding that it was no longer the same commercial that was under discussion. Generally, national courts are better placed to evaluate facts, and there is no reason to depart from the finding of the national court in the present case.
Even if Publisuisse SA, acting for Switzerland, were bound not to violate Article 10 of the Convention as indicated in the original judgment, it does not follow that it was bound to grant permission to have the amended commercial broadcast in the context of the changed broadcasting market and debate of 2001. If the applicant association complains that its Article 10 rights were violated, this is a complaint that partly concerns a fresh interference. Even in the case of the original, unaltered commercial there would have been cause for consideration by Publisuisse SA, given the impact of the changes in the broadcasting market. Seven years had passed since the original request had been made. In seven years the political context and the context of the debate may have changed; the broadcasting market may have become more or less diverse, with more or fewer opportunities to communicate ideas, as a result of which the commercial interests of broadcasters would have changed accordingly. In the context of mandated broadcasting of commercials, special considerations apply which require independent judgment and judicial scrutiny. The duty to broadcast commercials imposed on private entities imposes restrictions on the private property and informational interests of broadcasters. “Must-carry” rules impinge on the core of freedom of expression. Editorial freedom may suffer through the imposition of a “must-carry” duty in a changed environment. Given that the imposed broadcasting of commercials, even (and in particular) with political content, is a far-reaching interference with the freedom of expression of the broadcaster/editor for the alleged sake of other people's commercial and expressive interests, the utmost care is needed. Here, contrary to a court order to execute a pecuniary obligation, automaticity cannot be the rule. The positive obligations of the State with regard to the enforcement of Article 10 have to be construed with the utmost care when it comes to the imposition of an obligation to broadcast commercials of any nature, notwithstanding the laudable intent to diminish the difference between “powerful” and “weak” speakers. It will be for the State, the most powerful speaker, and, for that matter, a non-neutral one, to determine who is the favoured “weak” speaker, or which position demands preferential access. The obligation to broadcast is, per se, not only an interference with the right to speak but in fact it is a form of constrained speech, even if the indication that this is a commercial allows, in principle, some distinction to be drawn between the broadcaster's position and the viewpoint of the commercial that was broadcast.
To my mind the refusal to reopen the proceedings does not amount to a violation of the State's obligations under the Convention as regards the execution of the Court's judgment, as the original declaratory judgment did not specify a particular remedy. The State has the choice of finding the appropriate remedy, subject to the supervision system established under the Convention. As discussed in the dissenting opinion of Judge Malinverni joined by Judges Bîrsan, Myjer and Berro-Lefèvre, States are free to choose, at least in respect of certain types of judgments, how to carry out their obligations regarding execution.
DISSENTING OPINION OF JUDGE POWER
I voted with the minority in this matter for two reasons. Firstly, I am of the view that the complaint in relation to the ongoing refusal to broadcast the commercial in question is inadmissible ratione materiae having regard to the provisions of Article 35 § 2 (b). Secondly, in so far as there has been a fresh interference in the applicant's right to freedom of expression by the refusal to broadcast its additional commentary and criticisms, there has been a failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention.
To the extent that this application concerns the ongoing refusal to broadcast a particular television commercial I cannot but conclude that this complaint is “substantially the same” (in terms of parties, facts and complaints) as the matter which has already been examined by this Court in its judgment of 28 June 2001 and in which a violation of Article 10 of the Convention has already been found.1 I do not share the majority's view that the Federal Court's rather brief comment on the applicant's current interest in broadcasting the commercial which was made in the context of its dismissal of an application to reopen proceedings for failure to comply with the requirements of domestic law was, in itself, sufficient to constitute a fresh interference with the applicant's freedom of expression. To my mind, the Federal Court's comment did not raise an essentially “new” issue and does not constitute a sufficiently solid basis for this Court's examination of the original complaint for a second time.
In so far as the refusal to reopen proceedings may raise an issue under Article 46, it is clear that the Convention confers no jurisdiction upon this Court in relation to the execution of its own judgments.
To the extent that there is any “new” element to this application (and I am wholly satisfied that there is) then I am bound to conclude that the applicant association has not exhausted domestic remedies in relation thereto. In October 2001, it applied to Publisuisse SA for permission to broadcast the same television commercial which had been the subject of this Court's judgment of June 2001. However, in addition thereto, the applicant also sought permission to impart to the public additional and important information in respect of which there can be little doubt but that the public had an interest in receiving. This additional information consisted of a commentary informing the public of this Court's judgment together with the applicant's criticisms of the conduct of the Swiss Radio and Television Company and the Swiss authorities (see paragraph 19 of the judgment). That application was refused on 30 November 2001. The next day, the applicant applied to the Federal Court for a reopening of its earlier judgment of 20 August 1997 which had dealt, solely, with the original refusal to broadcast the commercial.
By any standards, it can be argued that the refusal to broadcast the applicant association's commentary and criticisms constituted an additional or “new” interference with its right to freedom of expression and comprised sufficient grounds for raising a new claim of a violation of Article 10 of the Convention. The applicant was entitled to know what, if any, legitimate aim was being pursued in restricting its right to impart this information to the public and what, if any, “pressing social need” existed which could possibly justify such a serious interference with its right to freedom of expression. However, the Convention lays down clear rules on admissibility, one of which provides that this Court may only deal with a matter after all domestic remedies have been exhausted (Article 35 § 1). The principle of subsidiarity recognises that the Strasbourg Court is a supervisory body of last resort and that the primary responsibility for remedying violations of the Convention lies with the Contracting Parties. Thus, in so far as there was a second and serious interference with the applicant association's freedom of expression it ought to have instituted fresh proceedings in relation thereto and it was obliged, legally, to exhaust all domestic remedies within such proceedings before raising its complaint before this Court.
It would appear that the applicant did, in fact, institute separate proceedings by lodging an appeal with the Federal Office of Communication. However, instead of awaiting the outcome thereof, it sought to have its complaint concerning this second interference in its freedom of expression examined by having it subsumed, retrospectively, into a review of the Federal Court's earlier judgment. I accept the respondent State's argument that it is self-evident that the reopening procedure in relation to the original refusal to broadcast the commercial was not an appropriate context for determining whether this further refusal by Publisuisse SA to broadcast new and additional information was consistent with the applicant association's right to freedom of expression. In its decision of 29 April 2002 the Federal Court noted that the appeal before the Federal Office of Communication was “still pending”. The applicant, nevertheless, proceeded to lodge its complaint before this Court on 25 July 2002 some eight months prior to the delivery of the decision of the Federal Office of Communication and certainly before the domestic courts had any opportunity to rule on the “new” interference. It thus failed to exhaust domestic remedies, as required. Accordingly, having regard to the provisions of Article 35 § 1, this complaint has to be declared inadmissible.
11. Verein gegen Tierfabriken (VgT) v. Switzerland, no. 24699/94, ECHR 2001 VI.