DISSENTING OPINION OF JUDGE SAJÓ

I voted against finding the application admissible.

The original 2001 judgment of the Court (hereinafter “the original judgment”) did not order any specific action to be taken. On the contrary, the Court found it necessary to emphasise in the case “that its judgment is essentially declaratory” (see paragraph 78 of the original judgment). It follows that it is up to the Contracting States to determine how to organise the broadcasting of television commercials in order to perform their obligations under the Convention.

The operative part of the original judgment declares that Article 10 of the Convention has been violated. But there was no specific obligation imposed on the State. The applicant association did not ask for any specific remedy in its application (see paragraph 3 of the original judgment).

On 31 October 2001 the applicant association applied to Publisuisse SA for permission to broadcast the original commercial, to which a comment was added which referred to the Court ’ s judgment and contained remarks about the conduct of the Swiss Radio and Television Company and the Swiss authorities.

On 30 November 2001 Publisuisse SA refused to grant permission to broadcast the commercial. The applicant association lodged an appeal with the Federal Office of Communication, which observed in 2003 that it was not empowered to force Publisuisse SA to broadcast the commercial. The applicant association did not avail itself of the administrative-law and civil-law remedies available in respect of the decision of the Federal Office of Communication and simply submitted an application to the Court.

The day after the refusal by Publisuisse SA, parallel to making use of the remedy that is available in the event of refusal to broadcast a commercial, the applicant association turned to the Federal Court with an application for the Federal Court ’ s judgment of 20 August 1997 to be reviewed (this was the decision upholding the original refusal by Publisuisse SA). The application was refused as the applicant association failed to show that such a review was necessary. Showing of necessity is a condition for reopening proceedings in Swiss law. In fact, if the applicant association wished to have the original commercial broadcast, the existence of the judgment of the Federal Court, which was found by the Court (in its original judgment) to amount to a violation of Article 10 of the Convention, did not constitute an obstacle to this. Publisuisse SA refused to broadcast the commercial in view of other considerations. The appeal against Publisuisse SA ’ s 2001 refusal decision was pending at the time the Federal Court denied the request to reopen the proceedings.

The judgment ( see paragraph 19 of the present judgment ) describes the contested commercial as being the same commercial “ with the addition of a comment referring to the Court ’ s judgment and criticising the conduct of the Swiss Radio and Television Company and the Swiss authorities ”.

The addition of these remarks would have changed the original message to a considerable extent. The amended commercial would have contained a completely new idea (criticism of the authorities) and was seeking a stamp of official condemnation. The new demands go beyond the original commercial, which dealt with the conditions of pig farming. As the Federal Court concluded, the applicant association wanted to publicise the fact that the Court had found that its freedom of expression rights had been violated, which in the view of the Federal Court turned the commercial into a different one (see point 3.3 of the Federal Court decision, quoted in paragraph 23 of the judgment). The Federal Court evaluated the facts, finding that it was no longer the same commercial that was under discussion. Generally, national courts are better placed to evaluate facts, and there is no reason to depart from the finding of the national court in the present case.

Even if Publisuisse SA, acting for Switzerland, were bound not to violate Article 10 of the Convention as indicated in the original judgment, it does not follow that it was bound to grant permission to have the amended commercial broadcast in the context of the changed broadcasting market and debate of 2001. If the applicant association complains that its Article 10 rights were violated, this is a complaint that partly concerns a fresh interference. Even in the case of the original, unaltered commercial there would have been cause for consideration by Publisuisse SA, given the impact of the changes in the broadcasting market. Seven years had passed since the original request had been made. In seven years the political context and the context of the debate may have changed; the broadcasting market may have become more or less diverse, with more or fewer opportunities to communicate ideas, as a result of which the commercial interests of broadcasters would have changed accordingly. In the context of mandated broadcasting of commercials, special considerations apply which require independent judgment and judicial scrutiny. The duty to broadcast commercials imposed on private entities imposes restrictions on the private property and informational interests of broadcasters. “Must carry” rules impinge on the core of freedom of expression. Editorial freedom may suffer through the imposition of a “must carry” duty in a changed environment. Given that the imposed broadcasting of commercials, even (and in particular) with political content, is a far-reaching interference with the freedom of expression of the broadcaster/editor for the alleged sake of other people ’ s commercial and expressive interests, the utmost care is needed. Here, contrary to a court order to execute a pecuniary obligation, automaticity cannot be the rule. The positive obligations of the State with regard to the enforcement of Article 10 have to be construed with the utmost care when it comes to the imposition of an obligation to broadcast commercials of any nature, notwithstanding the laudable intent to diminish the difference between “powerful” and “weak” speakers. It will be for the State, the most powerful speaker, and, for that matter, a non-neutral one, to determine who is the favoured “weak” speaker, or which position demands preferential access. The obligation to broadcast is, per se , not only an interference with the right to speak but in fact it is a form of constrained speech, even if the indication that this is a commercial allows, in principle, some distinction to be drawn between the broadcaster ’ s position and the viewpoint of the commercial that was broadcast.

To my mind the refusal to reopen the proceedings does not amount to a violation of the State ’ s obligations under the Convention as regards the execution of the Court ’ s judgment, as the original declaratory judgment did not specify a particular remedy. The State has the choice of finding the appropriate remedy, subject to the supervision system established under the Convention. As discussed in the dissenting opinion of Judge Malinverni joined by Judges Bîrsan, Myjer a nd Berro-Lefèvre , States are free to choose, at least in respect of certain types of judgments, how to carry out their obligations regarding execution.