DISSENTING OPINION OF JUDGE POWER

I voted with the minority in this matter for two reasons. Firstly, I am of the view that the complaint in relation to the ongoing refusal to broadcast the commercial in question is inadmissible ratione materiae having regard to the provisions of Article 35 § 2 (b). Secondly, in so far as there has been a fresh interference in the applicant association ’ s right to freedom of expression by the refusal to broadcast its additional comment and criticisms, there has been a failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

To the extent that this application concerns the ongoing refusal to broadcast a particular television commercial I cannot but conclude that this complaint is “substantially the same” (in terms of parties, facts and complaints) as the matter which has already been examined by this Court in its judgment of 28 June 2001 and in which a violation of Article 10 of the Convention has already been found [1] . I do not share the majority ’ s view that the Federal Court ’ s rather brief comment on the applicant association ’ s current interest in broadcasting the commercial which was made in the context of its dismissal of an application to reopen proceedings for failure to comply with the requirements of domestic law was, in itself, sufficient to constitute a fresh interference with the applicant association ’ s freedom of expression. To my mind, the Federal Court ’ s comment did not raise an essentially “new” issue and does not constitute a sufficiently solid basis for this Court ’ s examination of the original complaint for a second time.

In so far as the refusal to reopen proceedings may raise an issue under Article 46, it is clear that the Convention confers no jurisdiction upon this Court in relation to the execution of its own judgments.

To the extent that there is any “new” element to this application (and I am wholly satisfied that there is) , I am bound to conclude that the applicant association has not exhausted domestic remedies in relation thereto. In October 2001, it applied to Publisuisse SA for permission to broadcast the same television commercial which had been the subject of this Court ’ s judgment of 28 June 2001. However, in addition thereto, the applicant association also sought permission to impart to the public additional and important information in respect of which there can be little doubt but that the public had an interest in receiving. This additional information consisted of a comment informing the public of this Court ’ s judgment together with the applicant association ’ s criticisms of the conduct of the Swiss Radio and Television Company and the Swiss authorities (see paragraph 19 of the judgment). That application was refused on 30 November 2001. The next day, the applicant association applied to the Federal Court for a reopening of its earlier judgment of 20 August 1997 which had dealt, solely, with the original refusal to broadcast the commercial.

By any standards, it can be argued that the refusal to broadcast the applicant association ’ s comment and criticisms constituted an additional or “new” interference with its right to freedom of expression and comprised sufficient grounds for raising a new claim of a violation of Article 10 of the Convention. The applicant association was entitled to know what, if any, legitimate aim was being pursued in restricting its right to impart this information to the public and what, if any, “pressing social need” existed which could possibly justify such a serious interference with its right to freedom of expression. However, the Convention lays down clear rules on admissibility, one of which provides that this Court may only deal with a matter after all domestic remedies have been exhausted (Article 35 § 1). The principle of subsidiarity recognises that the Strasbourg Court is a supervisory body of last resort and that the primary responsibility for remedying violations of the Convention lies with the Contracting Parties. Thus, in so far as there was a second and serious interference with the applicant association ’ s freedom of expression it ought to have instituted fresh proceedings in relation thereto and it was obliged, legally, to exhaust all domestic remedies within such proceedings before raising its complaint before this Court.

It would appear that the applicant association did, in fact, institute separate proceedings by lodging an appeal with the Federal Office of Communication. However, instead of awaiting the outcome thereof, it sought to have its complaint concerning this second interference in its freedom of expression examined by having it subsumed, retrospectively, into a review of the Federal Court ’ s earlier judgment. I accept the respondent State ’ s argument that it is self-evident that the reopening procedure in relation to the original refusal to broadcast the commercial was not an appropriate context for determining whether this further refusal by Publisuisse SA to broadcast new and additional information was consistent with the applicant association ’ s right to freedom of expression. In its decision of 29 April 2002 , the Federal Court noted that the appeal before the Federal Office of Communication was “still pending”. The applicant association , nevertheless, proceeded to lodge its complaint before this Court on 25 July 2002 some eight months prior to the delivery of the decision of the Federal Office of Communication and certainly before the domestic courts had any opportunity to rule on the “ new ” interference. It thus failed to exhaust domestic remedies, as required. Accordingly, having regard to the provisions of Article 35 § 1, this complaint has to be declared inadmissible.

[1] 1. VgT Verein gegen Tierfabriken v. Switzerland , no. 24699/94, ECHR 2001 ‑ VI.