EHRM, 30-06-2009, nr. 32772/02

The Government stated that, in contrast to most of the judgments and decisions cited by the Chamber, the Committee of Ministers had already adopted a final resolution concluding that it had ‘exercised its functions under Article 46, paragraph 2, of the Convention in this case’. They indicated the individual and general measures they had taken, which bore witness to the effort made at all levels — legislative, administrative and judicial — to comply with the Court's judgment, for example: payment of the sum awarded to the applicant association by way of just satisfaction; the possibility of applying to the Federal Court to reopen the proceedings; the measures mentioned in the Appendix to the Committee of Ministers' final resolution; the decision by the director of the Federal Office of Communication to adopt a significantly narrower interpretation of the concept of ‘political advertising’ in section 18(5) of the Federal Radio and Television Act, and the application of this new interpretation in many cases; and the entry into force of a fully revised version of the Federal Radio and Television Act of 24 March 2006, which incorporated the restrictive interpretation and provided for an appropriate, cost-free procedure for complaining, inter alia, that ‘a refusal to grant access to programme content was unlawful’.

With regard more specifically to the application to reopen the proceedings, it was clear from the actual wording of its resolution that the Committee of Ministers had not deemed it essential to ascertain the outcome of that application before adopting its final resolution. In the Government's submission, it followed that the Committee of Ministers had considered, on the one hand, that the individual and general measures already adopted were sufficient in themselves to close the case irrespective of the outcome of the reopening procedure and, on the other, that such a procedure was indeed a possibility offered by domestic law, but not an obligation imposed by the Convention.

In the Government's submission, the Chamber judgment had the effect of transferring responsibility from the Committee of Ministers to the Court. It therefore impinged on the basic principle of the separation of powers between the Court and the Committee of Ministers, as provided for in Article 46 § 2 of the Convention.

The Government further noted that, during the drafting of Protocol No. 14, the Court had expressed misgivings regarding any proposed reform of the Convention's control system which would involve transferring responsibility for the supervision of judgments from the Committee of Ministers to the Court. If Protocol No. 14 had already been in force, the Court would have been unable to assume jurisdiction in the instant case because Article 46 § 4 of the Convention, as amended by the Protocol, entitled the Committee of Ministers to institute infringement proceedings before the Court only in cases where a State persistently refused to abide by a final judgment, that is, before the final resolution of the Committee of Ministers had been adopted.

In the Government's submission, the Chamber's reasoning did not take account of the case-law to the effect that the Convention did not give the Court jurisdiction to direct a State to reopen proceedings. Reopening was not a requirement deriving from the Convention. In other words, if it was accepted that the Convention did not oblige States Parties to institute procedures for the fresh examination of a case, it should also be accepted that States that had opted for such procedures were free to determine the formal and substantive conditions governing them and, where they applied, to examine whether those conditions had been met. As with any interpretation of domestic law, the Court's role was limited to ensuring that the examination by the national authorities and courts was not tainted by arbitrariness or manifest unreasonableness. The reasoning of the majority of the Chamber might give rise to unequal treatment between States whose domestic law provided for reopening procedures and those with no such procedures. The Government fully subscribed on that account to the dissenting opinion of the judges in the minority that ‘an unfavourable outcome for the applicant cannot be regarded as any less compatible with the Convention than the absence of such a procedure’. On that point, the Government emphasised that section 139a of the former Federal Judicature Act had granted the applicant association the right to apply for review of a judgment but on no account the right to obtain such a review, let alone the outcome they desired.

The Government further maintained that if the Federal Court had concluded in its initial judgment — as the European Court subsequently had — that the refusal to broadcast the commercial on account of its political nature had breached Article 10 of the Convention, it would in any event have been limited to that finding and could not have ordered the commercial to be broadcast, given the lack of any legal basis authorising it to impose such an obligation on Publisuisse SA. A measure that had been impossible at the time of the initial judgment could not be possible in the proceedings aimed at securing a review of that judgment. In the Government's submission, no such obligation could be inferred from the Convention either, as the two judges in the minority had also observed.

Lastly, the Government pointed out that the applicant association had urged Publisuisse SA to allow the commercial to be broadcast with the additional comment. The Federal Court had been aware of this when considering the application to reopen the proceedings and had concluded, without any element of arbitrariness, that it was unlikely that the applicant association still had an interest in having the original version broadcast. This assessment was borne out by the fact that the applicant association had already lodged an appeal with the Federal Office of Communication against Publisuisse SA's second refusal, a fact of which the Federal Court was likewise aware. The Government considered it self-evident, for the same reason, that the reopening procedure was not an appropriate context for determining whether or not this second refusal by Publisuisse SA was consistent with the applicant association's freedom of expression.

In the light of those factors, the Government were persuaded that the Federal Court could not be criticised for not having ‘applied the Convention and the Court's case-law directly’. It followed that by refusing, in the context of the reopening procedure, to order that either the initial or the modified version of the commercial in issue be broadcast, the Federal Court had not caused a fresh violation, the only condition which could have justified the Court's assuming jurisdiction ratione materiae.

In the applicant association's submission, the Government's argument that the Court lacked jurisdiction ratione materiae disregarded the particular circumstances of the instant case. It further noted that the Committee of Ministers of the Council of Europe, having been duly informed by it that the Federal Court had given a ruling on its application to reopen the proceedings, had preferred not to resume its procedure for supervising the execution of the judgment, having regard in particular to the fresh application lodged by the applicant association.

The Czech Government submitted that the Court had no jurisdiction in the Committee of Ministers' supervision of the execution of its judgments, although that did not deprive it of the possibility — subject to certain conditions — of examining alleged new violations of the Convention occurring in the same case after a judgment had been given. They contended that in the following three situations no violation of the Convention could be found:

In other words, the Czech Government submitted, since the Convention did not guarantee the right to have domestic proceedings reopened following a judgment by the Court, the Court had no power to find against a respondent State for rejecting an application to that effect. Nevertheless, it did have the power to find against a respondent State where, after the domestic proceedings had been reopened, the national courts adopted an identical decision without any justification. What mattered in the Czech Government's view was that, in general, a mere failure to remedy the original violation of the Convention as such could never constitute a fresh violation, the only exception being continuing violations, a category to which the instant case did not belong.

The Czech Government further observed that States which decided to introduce a system for the reopening of proceedings following a finding of a Convention violation should remain free to determine the system's admissibility criteria. It was quite impossible to apply, even mutatis mutandis, the Court's case-law concerning both the right of access to a court and the effectiveness required of an ordinary appeal or an appeal on points of law as aspects of Article 6 § 1 of the Convention, as the Chamber had argued in its judgment. Stressing that the safeguards in that provision were not applicable to the procedure for examining an application to reopen proceedings, the Czech Government argued that they would apply even less to a procedure concerning an application to reopen proceedings following a judgment of the Court.

In the Czech Government's submission, it was of little consequence what stage had been reached in the Committee of Ministers' supervision of the execution of the Court's judgment, and in particular whether or not it had already adopted a final resolution bringing its supervision to an end.

Furthermore, whether the Court had any jurisdiction at the judgment execution stage did not depend on the Committee of Ministers' opinion as to whether or not the measures taken by the respondent State to execute the judgment could be regarded as sufficient. In particular, the Court did not have jurisdiction to assess the resolutions adopted by the Committee of Ministers or to remedy alleged shortcomings in them.

The Court reiterates that findings of a violation in its judgments are essentially declaratory (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31; Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX; and Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004) and that, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B).

The Committee of Ministers' role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment (see Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003-IV, with references to Pailot v. France, 22 April 1998, § 57, Reports 1998-II; Leterme v. France, 29 April 1998, Reports 1998-III; and Rando v. Italy, no. 38498/97, § 17, 15 February 2000) and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (see Lyons and Others, cited above, and also Hertel v. Switzerland (dec.), no. 3440/99, ECHR 2002-I).

Reference should be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it ‘is substantially the same as a matter that has already been examined by the Court … and contains no relevant new information’. The Court must therefore ascertain whether the two applications brought before it by the applicant association relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995, DR 80-A, and Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006).

In the present case it should be noted that following the Court's judgment of 28 June 2001, the applicant association applied to the Federal Court for a review of that court's judgment of 20 August 1997. The application was dismissed on 29 April 2002. The Federal Court held, in particular, that the applicant association had not sufficiently shown that it still had an interest in broadcasting the original version of the commercial, which now appeared out of date almost eight years later. In the meantime, the applicant association had again applied to Publisuisse SA for permission to broadcast the commercial with the additional comment. On 30 November 2001 Publisuisse SA refused this fresh request. An appeal against that decision was dismissed by the Federal Office of Communication on 3 March 2003.

The Court observes in particular that in dismissing the application to reopen the proceedings, the Federal Court mainly relied on new grounds, namely that because of the time that had elapsed, the applicant association had lost all interest in having the commercial broadcast. By comparison, one of the main arguments put forward by the domestic authorities in refusing permission to broadcast the commercial in the first set of proceedings brought by the applicant association related to the prohibition of political advertising. Accordingly, in the opinion of the Federal Court itself, the general context had evolved to such an extent that it was legitimate to wonder whether the applicant association still had an interest in broadcasting the commercial. That is sufficient to warrant the conclusion that the refusals received after the Court's judgment of 28 June 2001 constitute relevant new information capable of giving rise to a fresh violation of Article 10.

In the Government's submission, the present case should be declared inadmissible ratione materiae, since, by virtue of Article 46 of the Convention, execution of the Court's judgments falls solely within the jurisdiction of the Committee of Ministers. In that connection, the Court would first reiterate that by Article 32 § 1 of the Convention, its jurisdiction extends ‘to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34 and 47’. Article 32 § 2 provides that ‘[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide’.

However, it cannot be said that the powers assigned to the Committee of Ministers by Article 46 are being encroached on where the Court has to deal with relevant new information in the context of a fresh application. Furthermore, in the instant case the Committee of Ministers, by adopting Resolution ResDH(2003)125, ended its supervision of the execution of the Court's judgment of 28 June 2001, although it had not taken into account the Federal Court's judgment of 29 April 2002 refusing the applicant association's application to reopen the proceedings, since the Government had not informed it of that judgment. From that standpoint also, the refusal in issue constitutes a new fact. If the Court were unable to examine it, it would escape all scrutiny under the Convention.

The Government's preliminary objection of lack of jurisdiction ratione materiae must therefore likewise be dismissed.

Unlike the Chamber, the Grand Chamber considers it appropriate to examine the present case from the standpoint of the positive obligation on the respondent State to take the necessary measures to allow the television commercial to be broadcast.

Article 1 of the Convention provides that the Contracting States ‘shall secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention’. As the Court stated in Marckx (cited above, § 31; see also Young, James and Webster v. the United Kingdom, 13 August 1981, § 49, Series A no. 44), in addition to the primarily negative undertaking of a State to abstain from interference in Convention guarantees, ‘there may be positive obligations inherent’ in such guarantees.

In this connection, the Court reiterates the importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, ‘effective’ exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures (see, mutatis mutandis, Özgür Gündem v. Turkey, no. 23144/93, §§ 42–46, ECHR 2000-III, and Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000).

In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. However, this obligation must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see, for example, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII, and Appleby and Others v. the United Kingdom, no. 44306/98, § 40, ECHR 2003-VI).

Moreover, the boundaries between the State's positive and negative obligations under the Convention do not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the State or in terms of interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests at stake (see, mutatis mutandis, Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, ECHR 2006-I, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 98 et seq., ECHR 2003-VIII).

The Court reiterates that the Convention must be read as a whole. In the context of the present case, the examination of whether there has been a fresh violation of Article 10 must take into account the importance in the Convention system of effective execution of the Court's judgments in accordance with Article 46 of the Convention, which provides:

In this connection it should be pointed out that one of the most significant features of the Convention system is that it includes a mechanism for reviewing compliance with the provisions of the Convention. Thus, the Convention does not only require the States Parties to observe the rights and obligations deriving from it, but also establishes a judicial body, the Court, which is empowered to find violations of the Convention in final judgments by which the States Parties have undertaken to abide (Article 19, in conjunction with Article 46 § 1). In addition, it sets up a mechanism for supervising the execution of judgments, under the Committee of Ministers' responsibility (Article 46 § 2 of the Convention). Such a mechanism demonstrates the importance of effective implementation of judgments.

As regards the requirements of Article 46, it should first be noted that a respondent State found to have breached the Convention or its Protocols is under an obligation to abide by the Court's decisions in any case to which it is a party. In other words, a total or partial failure to execute a judgment of the Court can engage the State Party's international responsibility. The State Party in question will be under an obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see, among many other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII, and Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004-II).

These obligations reflect the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting in restoring the situation which existed before the wrongful act was committed, provided that restitution is not ‘materially impossible’ and ‘does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’ (Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts — see paragraph 36 above). In other words, while restitution is the rule, there may be circumstances in which the State responsible is exempted — fully or in part — from this obligation, provided that it can show that such circumstances obtain.

In any event, respondent States are required to provide the Committee of Ministers with detailed, up-to-date information on developments in the process of executing judgments that are binding on them (see Rule 6 of the Committee of Ministers' Rules for the supervision of the execution of judgments and of the terms of friendly settlements, in paragraph 35 above). In this connection, the Court emphasises the obligation on States to perform treaties in good faith, as noted, in particular, in the third paragraph of the preamble, and in Article 26, of the 1969 Vienna Convention on the Law of Treaties (see paragraph 37 above).

Admittedly, subject to monitoring by the Committee of Ministers, the respondent State in principle remains free to choose the means by which it will discharge its obligations under Article 46 § 1 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see Scozzari and Giunta, cited above, § 249, and Lyons and Others, cited above). However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measures that might be taken to put an end to the situation — often a systemic one — which has given rise to the finding of a violation (see, for example, Öcalan v. Turkey, no. 46221/99, § 210in fine, ECHR 2005-IV; Broniowski, cited above, § 194; and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). Sometimes, the nature of the violation does not even leave any choice as to the measures to be taken (see Assanidze, cited above, § 202).

With regard in particular to the reopening of proceedings, the Court clearly does not have jurisdiction to order such measures (see, among other authorities, Saïdi v. France, 20 September 1993, § 47, Series A no. 261-C, and Pelladoah v. the Netherlands, 22 September 1994, § 44, Series A no. 297-B). However, where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, the Court may indicate that a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003; Öcalan, cited above, § 210; and Claes and Others v. Belgium, nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, § 53, 2 June 2005). This is in keeping with the guidelines of the Committee of Ministers, which in Recommendation R (2000) 2 called on the States Parties to the Convention to introduce mechanisms for re-examining the case and reopening the proceedings at domestic level, finding that such measures represented ‘the most efficient, if not the only, means of achieving restitutio in integrum’ (see paragraph 33 above).

In the instant case the Chamber considered that the reopening of proceedings at domestic level could constitute an important aspect of the execution of the Court's judgments. The Grand Chamber shares that view. However, the reopening procedure must also afford the authorities of the respondent State the opportunity to abide by the conclusions and the spirit of the Court judgment being executed, while complying with the procedural safeguards in the Convention. This applies all the more where, as in the instant case, the Committee of Ministers merely notes the existence of a reopening procedure without awaiting its outcome. In other words, the reopening of proceedings that have infringed the Convention is not an end in itself; it is simply a means — albeit a key means — that may be used for a particular purpose, namely the full and proper execution of the Court's judgments. Seeing that this is the sole criterion for assessing compliance with Article 46 § 1 and applies equally to all Contracting States, no discrimination can result between those which have introduced a reopening procedure in their legal system and others.

The Court must ascertain whether, in view of the importance of the execution of its judgments in the Convention system and the applicable principles, the respondent State had a positive obligation to take the necessary measures to allow the television commercial in issue to be broadcast following the Court's finding of a violation of Article 10. In determining whether such an obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual.

The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or, as in this case, on debate of questions of public interest (see Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; Castells v. Spain, 23 April 1992, § 43, Series A no. 236; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; and Monnat v. Switzerland, no. 73604/01, § 58, ECHR 2006-X). This applies all the more in the instant case, having regard to the Court's judgment of 28 June 2001. Moreover, the television commercial concerned battery pig-farming. Accordingly, as it related to consumer health and to animal and environmental protection, it was undeniably in the public interest.

The Court further notes that the television commercial was never broadcast, even after the Court's judgment had found that the refusal to broadcast it infringed freedom of expression. However, prior restraints on publication entail such dangers that they call for the most careful scrutiny (see Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 51, Series A no. 217, and Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006).

Furthermore, the Court has already found, in its judgment of 28 June 2001, that the interference 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 could serve to justify the interference in the particular circumstances of the case (see Verein gegen Tierfabriken (VgT), cited above, § 75). The Federal Court subsequently dismissed the applicant association's application to reopen the proceedings on the ground that the association had not provided a sufficient indication of its position as to 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 29 above). On this point, the Grand Chamber shares the view expressed in paragraph 62 of the Chamber judgment that this approach is overly formalistic in a context in which it is clear from the circumstances 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.

The Federal Court further held that the applicant association had not sufficiently shown that it still had an interest in broadcasting the commercial. As the Chamber observed in paragraph 62 of its judgment, the Federal Court thereby took the place of the applicant association, which alone was competent at that stage to judge whether there was still any purpose in broadcasting the commercial. The Grand Chamber shares that view. It further observes that the public interest in dissemination of a publication does not necessarily decrease with the passing of time (see, to similar effect, Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV). Moreover, the Federal Court did not offer 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. Nor did it show that after the Court's judgment of 28 June 2001 the circumstances had changed to such an extent as to cast doubt on the validity of the grounds on which the Court had found a violation of Article 10. Lastly, the Court must also reject the argument that the applicant association had alternative options for broadcasting the commercial in issue, for example via private and regional channels, since that would require third parties, or the association itself, to assume a responsibility that falls to the national authorities alone: that of taking appropriate action on a judgment of the Court.

Furthermore, the argument that the broadcasting of the commercial might be seen as unpleasant, in particular by consumers or meat traders and producers, cannot justify its continued prohibition. The Court reiterates in this connection that freedom of expression 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; Lehideux and Isorni v. France, 23 September 1998, § 55, Reports 1998-VII; Murphy v. Ireland, no. 44179/98, § 72, ECHR 2003-IX; and Monnat, cited above, § 55).

The Court notes, lastly, that the Contracting States are under a duty to organise their judicial systems in such a way that their courts can meet the requirements of the Convention (see mutatis mutandis, Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V, and the case-law cited therein). This principle also applies to the execution of the Court's judgments. Accordingly, it is equally immaterial in this context to argue, as the Government did, that the Federal Court could not in any event have ordered that the commercial be broadcast following the Court's judgment. The same is true of the argument that the applicant association should have instituted civil proceedings.

Having regard to the foregoing, the Court considers that the Swiss authorities failed to comply with their positive obligation under Article 10 of the Convention in the instant case. There has therefore been a violation of that Article.