DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGES BÎRSAN, MYJER AND BERRO-LEFÈVRE

( T ranslation)

1 . To my great regret, I am unable to agree with the conclusions reached by the majority. M y opinion differs from that expressed by my colleagues on two issues that I consider to be central to the present case : the Court ’ s jurisdiction as regards the execution of its judgments, and the obligations on States in the same sphere.

I

2 . Article 46 § 2 of the Convention provides that t he final judgment of the Court is transmitted to the Committee of Ministers, which supervise s its execution . Accordingly, the Convention does not confer any jurisdiction on the Court as regards the execution of its own judgments. Supervision of ex e cution falls outside the Court ’ s jurisdiction, being entrusted to a political body, the Committee of Ministers.

3 . Admittedly, in a second judgment the Court may examine new facts not dealt with in its previous judgment, even if they occurred in the context of the execution of that judgment. The question arising is therefore whether the present case involved a new fact justifying the Court ’ s jurisdiction ratione materiae .

4 . Let us recapitulate the facts: after the Court ’ s first judgment , the applicant association applied to the Federal Court under section 139 ( a ) of the former Federal Judicature Act for a review of that court ’ s initial judgment . On 2 9 April 2002 the Federal Court dismissed the application . The Committee of Ministers, for its part, adopted Resolution ResDH(2003)125 on 22 July 2003, ending its supervision of the execution of the judgment .

5 . It is true that the Committee of Ministers had not been informed that the Federal Court had dismissed the application to reopen the proceedings . Nevertheless, in its resolution the Committee of Ministers declared itself satisfied with the individual and general measures taken by Switzerland to execute the Court ’ s judgment .

6 . The measures included publication of the judgment, payment of the award of just satisfaction (A rticle 41) and the fact that the applicant association had been able to apply for a review under section 139 ( a ) of the Federal Judicature Act . In other words , the Committee of Ministers did not consider it necessary to make the adoption of its resolution dependent on the Federal Court ’ s response, whether positive or negative, to the application to reopen the proceedings . In my opinion, the Committee of Ministers ’ adoption of the resolution conclusively ended the examination of the case at international level.

7 . Even assuming that the Committee of Ministers erred in adopting its resolution prematurely – that is, before knowing the outcome of the application for review – I consider that it is not for the Court but, if need be, for the Committee of Ministers to rectify that error .

8 . In any event , the question before the Court was whether the domestic authorities ’ second refusal to broadcast the television commercial in issue constituted new information. The Court has often addressed the concept of new information in the context of the reopening of domestic proceedings following one of its judgments .

9 . The Mehemi v. France (no. 2) case ( no. 53470/99, § 43, ECHR 2003 ‑ IV ) is an example where the Court acknowledged the existence of new information and ruled that it had jurisdiction to examine whether the measures taken by the respondent State following its initial judgment were compatible with the Convention. The new facts were the conver sion of the order for the applicant ’ s permanent exclusion into a ten-year exclusion order , and the issuing of a special visa allowing him to return to France. Those measures had been taken after the Court ’ s first judgment, and the Court ruled that it had jurisdiction to examine them. The subject matter of the second application was indeed different from that of the first application. Similarly, in Hertel v. Switzerland ( (dec.), no. 53440/99, ECHR 2002 ‑ I ) the Court held that a partial , as opposed to a total , prohibition constituted new information .

10 . Apart from these few examples, most of the Court ’ s judgments have shown that the mere refusal to reopen proceedings at national level following a judgment by the Court does not constitute new information, even where the applicant continue s to suffer the adverse effects of a domestic judgment given in breach of the Convention.

11 . The Lyons and Others v. the United Kingdom case ( (dec.), no. 15227/03, ECHR 2003 ‑ IX ) , in which the Court had found a violation of A rticle 6 in its initial judgment , is a perfect illustration of this . In the Court ’ s view , the proceedings which the applicants were seek ing to challenge had their origin in earlier proceedings . In its decision the Court therefore considered that the applicants ’ argument that the United Kingdom had committed a new breach of Article 6 rested on their view that by refusing to quash their convictions or to order a retrial, the domestic courts ha d failed to give effect to the Court ’ s initial judgment . It noted, however, that the respondent State was free to choose the means by which it was to discharge its le gal obligation under Article 46 . The Court therefore lacked jurisdiction to find a State to be in breach of the Convention simply on account of its failure to take a particular course of action in executi ng one of the Court ’ s judgments.

12 . The following principles thus appear to emerge from the Court ’ s case-law: if, following the reopening of proceedings, the respondent State has altered the applicant ’ s situation, this amounts to new information and the Court will normally have jurisdiction ( the Mehemi approach ); on the other hand, the national authorities ’ refusal to reopen proceedings following the Court ’ s finding of a violation does not in principle constitute new information ( the Lyons and Others approach ).

13 . Unlike the majority, I take the view that the Federal Court ’ s refusal to review its initial judgment should not be regarded as new information that was not examined in the Court ’ s initial judgment . On the contrary, I consider that the refusal to reopen proceedings at national level does not constitute new information and is not a basis for finding that the Court has jurisdiction ratione materiae .

14 . The fact that the Lyons and Others case concerned A rticle 6 and the present case concerns Article 10 is not sufficient to account for the difference between the finding in the former case and the conclusion reached by the majorit y in the present case . The second refusal by the Swiss authorities to broadcast the commercial in question does not constitute new information either. The commercial was exact ly the same as the one that had initially been refused, apart from the fact that it was preceded by a reference to the Court ’ s finding against Switzerland.

15 . I therefore conclude that the Court does not have jurisdiction ratione materiae to deal with the application in the present case .

16 . I would like to point out in this connection that A rticle 16 § 4 of Protocol No. 14 to the Convention, which admittedly is not yet in force, assigns the Committee of Ministers, and no one else, the task of monitoring the execution of the Court ’ s judgments. If a State refuses to abide by a judgment, infringement proceedings may be brought before the Court by the Committee of Ministers alone, and not by individuals.

II

17 . This initial conclusion is further strengthened by an examination of the obligations on States following judgments by the Court against them .

18 . It should be noted here that although the Court ’ s judgments are binding (Article 46), States are free to choose the means whereby they will comply with them . Other than in exceptional cases ( see , for exa mple, Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004 ‑ II ), the Court ’ s judgments thus impose on States an obligation to achieve a particular outcome, in principle leaving them free to decide how to achieve it . In particul a r, the Convention does not require States to reopen domestic proceedings following a finding of a violation by the Court. This possibility is a matter for their discretion, although in judgments concerning Article 6 the Court has often encourage d States to opt for this solution, especially in criminal cases .

19 . Swiss domestic law has introduced a procedure for the review of Federal Court judgments following findings of a violation by the Court. However, this possibilit y of applying to reopen proceedings is not absolu t e but is subject to conditions. Firstly, section 139 ( a ) of the Federal Judicature Act ( section 122 of the L aw now in force ) provided that an application for review of a Federal Court judgment was admissible only if redress could not be afforded by any other means (the subsidiarity principle). Furthermore, and above all, section 140 provided that t he application for review had to indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it ha d been raised in due time. I t also had to state the nature of the amendment of the judgment and the redress being sought.

20 . Swiss law therefore grants victims of a violation of the Convention the right to apply for a review but on no account the right to obtain such a review, let alone the outcome they desire.

21 . The Federal Court dismissed the application to reopen the proceedings in the present case for the following reasons: firstly, the applicant association had not shown that redress was possible only through this means . In the Federal Court ’ s view , other remedies were available, in particular actions based on civil law and competition law, for challenging the fresh refusal to broadcast the commercial in issue (see paragraph 41 of the judgment). Publisuisse SA ’ s second refusal to broadcast the commercial should therefore have been the subject of separate proceedings rather than an application for review. T he reopening procedure was not an appropriate remedy in the present case for securing the broadcasting of the commercial, even in its original version, since the Federal Court could not in any event have ordered it to be broadcast in the context of such a procedure (see paragraph 39 of the judgment). Only a civil action, of which the applicant association had not availed itself, would have afforded an opportunity to determine whether Publisuisse SA was obliged to broadcast the commercial .

22 . Furthermore, t he applicant association did not explain how it wished the judgment to be amended . Lastly, it had not shown that it still had an interest in broadcasting the commercial. In the Federal Court judges ’ opinion, bearing in mind the time that had elapsed since the refusal of the initial request to Publisuisse SA to broadcast the commercial , such an interest was no longer topical. On this point, I do not share the majority ’ s opinion that 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 (see paragraph 95 of the judgment). The Court has always accepted that States are free to set admissibility criteria for applications to the courts, for example an interest entitling the applicant to take proceedings, and that the courts enjoy a wide margin of appreciation in determining whether the criteria are satisfied.

23 . I do not consider that the Federal Court was overly formalistic in refusing to review its judgment. The application for review was quite simply not compatible with the requirements set out in section 140 of the Federal Judicature Act .

24 . If a State provides for a reopening procedure in its domestic legal system, it has to be allowed to subject it to admissibility criteria, as with any form of appeal. In such matters, there can be no question of an automatic process. T he Court ’ s finding of a violation does not confer on the applicant the automatic right to have the domestic judgment reviewed and to obtain a new decision in his or her favour .

25 . The opinion expressed by the majority is likely to have a perverse effect: it will pe nalise States which , seeking to improve the execution of the Court ’ s judgments , have introduced a reopening procedure in their domestic legal systems. States that have not introduced such a procedure will not have to fear a second finding of a violation , whereas those that have will run that risk. As J u d ges Jaeger and Borrego Borrego quite rightly observed in their dissenting opinion annexed to the Chamber judgment , “[a] n unfavourable outcome for the applicant cannot be regarded as any less compatible with the Convention than the absence of such a [reopening] procedure ” .

26 . The reasoning adopted by the majority may create a risk of inequality between two categories of States: those that have made provision for a reopening procedure and the others . It might help to discourage States that have not already done so from setting up domestic mechanisms for the review of national supreme c our t s ’ judgments following findings of a violation by the Court.

27 . I n conclusion, I consider that in refusing to take any action on the applicant association ’ s request, the Swiss authorities were not respons ible for a second violation of Article 10 . While I acknowledge the importance, in the Convention system , of proper execution of the Court ’ s judgments, I am unable to join the majority in asserting that the respondent State had a positive obligation to take the necessary measures to allow the television commercial to be broadcast following the Court ’ s finding of a violation of A rticle 10.

28 . How would the majority have reacted if, contrary to what happened, the Federal Court had declared the application to reopen the proceedings admissible, had examined it on the merits but had confirmed its initial judgment instead of setting it aside ? To argue that there would have been a violation of the Convention in such circumstances would amount to holding that the Court ’ s judgments have an indirect quashing effect , which cannot in any way be inferred from Article 46 § 1 .