Resolution CM/ResDH(2008) 24 [1]

Execution of the judgment of the European Court of Human Rights

Monnat against Switzerland

(Application No. 73604/01, judgment of 21 September 2006 , final on 21 December 2006 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 the violation of the Convention found by the Court in this case concerns the right to freedom of expression of the applicant, a journalist, due to measures taken against a television documentary he made, entitled Switzerland ’s lost honour, which deals with Swiss history during the Second World War (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 Switzerland ’s 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 close the examination of this case.

Appendix to Resolution CM /ResDH(2008)24

Information about the measures taken to comply with the judgment

in the case of Monnat against Switzerland

Introductory case summary

The case concerns the violation of the right to freedom of expression of the applicant, a journalist, due to measures taken against a television documentary he made, entitled Switzerland ’s lost honour, which deals with Swiss history during the Second World War (violation of Article 10). On 27/08/1997, in a decision subsequently confirmed by the Federal Tribunal, the Independent Broadcasting Complaints Authority accepted numerous complaints it had received and found that the documentary failed to comply with broadcasting law on account of its failure to respect the obligation of objectivity and the plurality and diversity of opinion. Following these proceedings on 10/05/2001, the competent Huissier of the City of Geneva decreed an embargo forbidding all European or foreign television services to have the programme.

The European Court found that the acceptance of these complaints by the Swiss authorities did not represent a reasonably proportionate means of achieving the legitimate aim pursued, taking account in particular of democratic society’s interest in ensuring and maintaining freedom of expression, of the reduced margin of appreciation applicable to information of public interest, of the fact that the criticisms in the documentary were directed at the actions of senior officials and politicians and, lastly, of the serious nature of the programme and the research upon which it was based (§71 of the judgment).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

3 500 euros

3 500 euros

P aid on 22/01/2007

b) Individual measures

In its judgment the European Court considered that the finding of a violation constituted sufficient redress for the non-pecuniary damage sustained.

Before this judgment became final, Télévision suisse romande (TSR) broadcast the applicant's film on 12/11/2006, at 8.30 p.m. ( http://www.tsr.ch/tsr/index.html?siteSect=342401&sid=7246207 ); there is no more obstacle to the distribution of this film which is, in particular, accessible on-line ( http://archives.tsr.ch/search ).

The applicant did not ask for the re-opening of the proceedings he could have asked for once the judgment became final.

II. General measures

By letter of 21/09/2006, the Government Agent transmitted the Court's judgment to the Federal Tribunal, the Federal Office of Communication and to the Independent Complaints Authority.

The full judgment has been published in Jurisprudence des autorités administratives de la Confédération (JAAC) [vol. 70 [2006], fasc. VI, Nr. 117 http://www.vpb.admin.ch/deutsch/doc/70/70.117.html ).

In addition, a summary appears in the Annual report of the Federal Council concerning the activities of Switzerland in the framework of the Council of Europe to be published in the official gazette Feuille fédérale .

Having regard to the direct effect granted by the domestic courts to the case-law of the European Court of Human Rights, the government is of the opinion that these measures of publication and dissemination will avoid the repetition of the violation found in the present case.

III. Conclusions of the respondent state

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

[1] Adopted by the Committee of Ministers on 27 March 2008 at the 1020th meeting of the Ministers’ Deputies