DISSENTING OPINION OF JUDGE JAEGER JOINED BY JUDGE BORREGO BORREGO

1 . I voted against finding a violation in the present case .

2 . The applicant association never claimed compensation for non-pecuniary damage, either in its previous application (no. 24699/94) or in the present one . It simply sought a finding of a violation and t he reimburse ment of its costs. In Re solution ResDH(2003)125 of 22 July 2003 the Committee of Ministers declared that it was satisfied by the measures taken by the respondent S tate , namely p ubli cation of the judgment and the reimbursement of costs and expenses , with t he additional possibility of re opening the proceedings as provided by domestic law.

3 . The applicant association achieved nothing in having the proceedings reopened in the Federal Court.

However, 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 , as the majority accept ( see Saïdi v . France , judgment of 2 0 September 1993, Series A no. 261-C, p. 57, § 46 , and Pelladoah v. the Netherlands , judgment of 20 September 1994, Series A no. 297-B, p. 36, § 44). The reopening of the proceedings in the Federal Court is merely a subsidiary means of redress, irrespective of the outcome of that procedure . An unfavourable outcome for the applicant cannot be regarded as any less compatible with the Convention than the absence of such a procedure ( argumentum a maiore ad minus ). Moreover, in the instant case it should be noted that the Committee of Ministers discharged the duty assigned to it by A rticle 46 § 2 of the Convention in adopt ing Re solution ResDH(2003)125. In such circumstances, the Court is not competent to consider the same case again.

4 . Even assuming that the Court is competent in this respect , I cannot see how the Federal Court could have violated Article 10 through a somewhat formalistic interpretation of sections 139a and 140 of the former Federal Judicature Act. Provided that the conditions for reopening the proceedings are satisfied, the courts are only bound not to repeat the violation already found. Thus , the Swiss courts were required to refrain from using the political argument because the Court had found it not to be relevant and sufficient.

However, Article 10 does not impose specific procedural obligations in the application of general provisions on procedure . In particular , the courts may at any time require there to be a continuing interest in legal protection. The presence of s uch an interest was in fact questionable because the applicant association had at the same time attempted to reach a new agreement with Publisuisse SA to broadcast an amended version of the commercial in issue, thereby accepting that the commercial now appeared out of date almost eight years after it was initially intended to have been broadcast. In my opinion, reopening of proceedings is not an ideal means of reparation in international law since it often does not allow the effects of a violation found by the Court to be redressed as far as possible ( contrary to what the majority state in paragraph 56 of the judgment ). While this might be true in the case of procedural defects, it is more or less inadequate in respect of the violation of A r ticle 10.

5 . In so far as the right of expression is used to take part in a political discussion – whether by means of writing, cartoons, films or speeches – the scope and effect of any initiative depend to a great extent on the actual circumstances, especially the receptiveness or sensitivity of the audience to which the message is addressed. As time goes by, the relevance of the message decreases, as do the awareness and receptiveness of the groups being targeted. After some eight years, the message may need updating in form and content or may even be totally outdated.

Anyone who wishes to take part in a debate and is not allowed to raise his voice until eight years later will hardly be satisfied. For these reasons I disagree with the majority ’ s finding in paragraph 56 of the judgment that in cases of this kind, reopening of the proceedings may possibly result in restitutio in integrum . I consider this to be inconsistent with the temporal implications inherent in freedom of expression.