Resolution CM/ ResDH (2010) 113 [1]

Execution of the judgment of the European Court of Human Rights

Verein gegen Tierfabriken ( VgT ) (No. 2) against Switzerland

(Application No. 32772/02, judgment of 30 June 2009, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that in the first case of Verein gegen Tierfabriken ( VgT ) against Switzerland (Application No. 24699/94, judgment of 28 June 2001), the Committee of Ministers concluded its supervision of the execution of the judgment on the basis of information provided by the Swiss authorities to the effect that “the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court ’ s judgment [ ... ]” which had been challenged by the Court (see Final Resolution ResDH (2003)125 of 22 July 2003) ;

Noting that the violation of the Convention found by the Court in this second case concerns the continued prohibition on broadcasting a television commercial after the Court ’ s finding in its first judgment of a violation of freedom of expression, which amounted to a fresh violation of the applicant association ’ s freedom of expression (violation of article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)113

Information about the measures to comply with the judgment in the case of

Verein gegen Tierfabriken ( VgT ) (No. 2) against Switzerland

Introductory case summary

The applicant is a Swiss-regi stered animal protection association, which campaigns against animal experiments and battery farming. In response to various advertisements produced by the meat industry, the applicant association made a television commercial urging the public to eat less meat. Permission to broadcast the commercial was refused on 24/01/1994 by the company responsible for television advertising ( AG für das Werbefernsehen - now Publisuisse SA) and, at final instance, by the Federal Court which on 20/08/1997 dismissed an administrative-law appeal by the applicant association, with reference to the prohibition of political advertising laid down in the Federal Radio and Television Act . In its judgment of 28/06/2001 concerning the applicant association ’ s first application ( see Verein gegen Tierfabriken ( VgT ) No. 24699/94, ECHR 2001 VI), the European Court found this refusal to be in violation of Article 10. In the European Court ’ s opinion, the domestic authorities had not demonstrated in a “relevant and sufficient” manner why the grounds generally advanced in support of the prohibition of political advertising had also served to justify the interference in the particular circumstances of this case (see § 75 in fine of the judgment of 28/06/2001). The Committee of Ministers closed the examination of that case on the basis of information which was available to it at that date, noting that, “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 20/08/1997” (Final resolution ResDH (2003)125 of 22/07/2003).

However, the subsequent application for review lodged by the applicant association was dismissed by the Federal Court in 2002. The Swiss high judicial authority held in particular that the applicant association had not sufficiently shown that it still had an interest in having the commercial broadcast in its initial version, which appeared out of date almost eight years later. The Federal Court also noted that the applicant association had been unable to show that redress was only to be secured through the reopening of the proceedings; in its words, “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 ( ... )”. In the meantime, the applicant association had again applied to Publisuisse SA for permission to broadcast the contested commercial with an additional comment. On 30/11/2001 Publisuisse SA rejected this fresh request. An appeal against that decision was dismissed by the Federal Office of Communication on 3/03/2003.

Having before it a fresh application by the applicant association, the Court concluded that the Swiss authorities had failed to comply with their positive obligation, under Article 10 in this case, to take the necessary measures to allow the television commercial at issue to be broadcast, and there had thus been a violation of this provision.

The Court, while recalling that it did not have jurisdiction to order the reopening of proceedings (see §89 of the judgment), emphasised that such a measure could constitute an important aspect of the execution of judgments if it afforded the authorities of the respondent state the opportunity to abide by the conclusions and the spirit of the judgment being executed, while complying with the procedural safeguards in the Convention. The Court considered this to apply even more “where, as in the instant case, the Committee of Ministers merely notes the existence of a reopening procedure without awaiting its outcome” (§90 of the judgment). It also stressed that the execution of, or failure to execute, a judgment could engage the state party ’ s international responsibility (§85 of the judgment), and that respondent States were required to provide the Committee of Ministers with detailed, up-to-date information on developments in the process of executing judgments binding on them (§87 of the judgment).

With specific reference to the grounds on which the Federal Court dismissed the applicant association ’ s request for review following the first judgment of the European Court, which found the approach followed by the Federal Court “excessively 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 Court considered in addition that the Federal Court had taken the place of the applicant association, which was alone competent to do so at that stage, in judging whether there was still any purpose in broadcasting the commercial at issue. The Court also dismissed the argument that the applicant association had alternative options for broadcasting the commercial at issue, particularly by turning to 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” (§§ 94-95 of the judgment).

Finally, the Court observed that contracting states were under a duty to organise their judicial systems in such a way that their courts could meet the requirements of the Convention, and that this principle must also generally apply to the execution of its judgments. It was therefore immaterial to argue that the Federal Court could not in any event have ordered that the commercial be broadcast following the Court ’ s judgment considering that the applicant association should have instituted civil proceedings (§ 97 of the judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

4 000 EUR

4 000 EUR

Paid on 7/07/2009

b) Individual measures

The Court made no award for just satisfaction as the applicant association submitted no claim for pecuniary or non-pecuniary damage.

According to the action report provided promptly by the Swiss authorities, the applicant association filed another request for review, which the Federal Court granted on 4/11/2009 and quashed its judgments of 29/04/2002 and 20/08/1997. Further, allowing the applicant association ’ s initial administrative-law appeal, it also quashed the decision of the Federal Office of Communication of 22/05/1996. Moreover, it held that the commercial did not constitute a prohibited political television advertisement and directed the Swiss radio and television company (SRG) and Publisuisse SA to broadcast it. The commercial was broadcast three times between 27 and 29/01/2010 by SRG and Publisuisse SA.

Consequently, no other individual measure appears necessary.

II. General measures

The Swiss authorities immediately transmitted the European Court ’ s judgment to all authorities and agencies directly concerned. It was also presented in the quarterly bulletin of the Federal Ministry of Justice ( Office fédéral de la justice ) on the European Court ’ s case-law (issue No. 2 of 2009; http://www.bj.admin.ch/bj/fr/home/themen/staat_und_buerger/menschenrechte2/europaeische_menschenrechtskonvention.html , section “Convention européenne ”). These quarterly bulletins are sent out to all Federal authorities concerned (Federal Court, Federal Administrative Court, Federal Criminal Court, Office of the Parliament), as well as to all cantonal judicial authorities (in particular Courts of Appeal and Justice Departments). A summary of the judgment was also published in the Annual Report of the Federal Council on the activities of Switzerland within the Council of Europe in 2009.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of t he Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies