CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (No. 2)
Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (ratione materiae);Remainder inadmissible;Violation of Art. 10
Snejana Botoucharova
4. The applicant association is dedicated to animal protection, campaigning in particular against animal experiments and battery farming. 5. In response to various advertisements produced by the meat industry, the applicant association made a television commercial lasting fifty-five seconds, consisting of two scenes. The first scene showed a sow building a shelter for her piglets in the forest. With soft music playing in the background, the voiceover referred, among other things, to the pigs’ sense of family. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The voiceover compared the conditions in which pigs were reared to concentration camps, and added that the animals were pumped full of medicines. The film concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!” 6. Permission to broadcast the commercial on the channels of the Swiss Radio and Television Company (Schweizerische Radio- und Fernsehgesellschaft) was refused on 24 January 1994 by the company responsible for television advertising (the Commercial Television Company (AG für das Werbefernsehen), now called Publisuisse SA) and, at final instance, by the Federal Court, which dismissed an administrative-law appeal by the applicant association on 20 August 1997. In respect of the applicant association’s complaint under Article 10 of the Convention, the Federal Court found that the prohibition of political advertising laid down in section 18(5) of the Federal Radio and Television Act pursued various aims; in particular, it was designed to prevent financially powerful groups from obtaining a competitive political advantage, to protect the formation of public opinion from undue commercial influence, to bring about a certain equality of opportunity among the different forces of society, and to contribute towards the independence of radio and television broadcasters in editorial matters. 7. On 13 July 1994 the applicant association lodged an application with the European Commission of Human Rights under former Article 25 of the Convention. 8. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 9. In a decision of 6 April 2000 the Court declared the application partly admissible. 10. In a judgment of 28 June 2001 the Court held that the refusal by the relevant Swiss authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by Article 10 of the Convention (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001VI). The Court found that the measure taken had been “prescribed by law” and had pursued a legitimate aim for the purposes of Article 10 § 2. As to whether the measure had been “necessary in a democratic society” within the meaning of that provision, the Court noted, in particular, that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster’s independence, unduly influencing public opinion or endangering equality of opportunity among the different forces of society. On the contrary, it had simply intended to participate in an ongoing general debate on the protection and rearing of animals. Accordingly, in the Court’ The Court also found that there had been no violation of Articles 13 and 14 of the Convention. As to the application of Article 41, it ordered Switzerland to pay 20,000 Swiss francs (CHF – approximately 12,160 euros (EUR) today) for costs and expenses. However, it made no award to the applicant association for non-pecuniary damage. 11. Subsequently, the applicant association again applied to Publisuisse SA for permission to broadcast an amended version of the commercial. In a letter of 30 November 2001 Publisuisse SA refused the application. 12. On 1 December 2001, on the basis of the Court’s judgment, the applicant association applied to the Federal Court for the final judgment given at domestic level to be reviewed, in accordance with section 139a of the former Federal Judicature Act (see “Relevant domestic law and practice”, paragraph 19 below). 13. In their respective observations of 10 January and 15 February 2002, which were duly transmitted to the applicant association, the Federal Department of Environment, Transport, Energy and Communication and the Swiss Radio and Television Company submitted that the application to reopen the proceedings should be dismissed. 14. In a judgment of 29 April 2002 the Federal Court dismissed the application to reopen the proceedings. It held that the applicant association had not provided a sufficient explanation of the nature of “the amendment of the judgment and the redress being sought”, a formal requirement imposed by section 140 of the former Federal Judicature Act (see “Relevant domestic law and practice”, paragraph 20 below). It observed, in particular, that the applicant association had been unable to show how redress was possible only through the reopening of the proceedings. It further noted that the association had not sufficiently shown that it still had an interest in broadcasting the original commercial, which now appeared out of date almost eight years after it was initially intended to have been broadcast. Lastly, the Federal Court considered that the fact that Publisuisse SA, the competent authority in such matters, had again refused to sign an agreement to broadcast an amended version of the commercial should have formed the subject of separate proceedings. 15. On 3 March 2003 the Federal Office of Communication dismissed an appeal by the applicant association against Publisuisse SA’s decision of 30 November 2001 refusing permission to broadcast the amended version of the commercial. 16. The Committee of Ministers of the Council of Europe, which had not been informed either by the applicant association or by the Swiss Government that the Federal Court had dismissed the application for review, concluded its examination of application no. 24699/94 on 22 July 2003 by adopting Resolution ResDH(2003)125, the relevant parts of which read: “... Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; ... Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution; ... Declares, after having taken note of the information supplied by the Government of Switzerland, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case. Appendix to Resolution ResDH(2003)125: Information provided by the Government of Switzerland during the examination of the VGT Verein gegen Tierfabriken case by the Committee of Ministers As regards individual measures, the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court’s judgment of 20 August 1997. Concerning general measures, the judgment has been sent out to the Federal Office of Communication, the Federal Department for Environment, Transport, Energy, and Communication and to the Federal Court. In addition, the Court’s judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération n.65/IV(2001), and can be consulted on the following website: ... The judgment has also been mentioned in the Federal Council Annual report on the Swiss activities at the Council of Europe in 2001, which has been published in the Feuille fédérale n.8/2002. The Government of Switzerland considers that, given the information mentioned above, there will no longer exist a risk of a repetition of the violation found in the present case and, consequently, Switzerland has satisfied its obligations under Article 46 § 1 of the Convention.” 17. In a letter of 12 December 2003 the applicant association informed the Council of Europe’s Directorate General of Human Rights of the Federal Court’s refusal to review the judgment of 20 August 1997 following the Court’s finding of a violation of Article 10. 18. On 12 January 2005 the Council of Europe’s Directorate General of Human Rights informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the Court’s consideration of the application lodged in July 2002 in the present case. 19. Sections 136 et seq. of the former Federal Judicature Act, which was in force until 31 January 2006, concerned, inter alia, the review of judgments of the Federal Court. Section 139a provided: 1. A decision of the Federal Court or of a lower court may be reviewed if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has granted an individual application on account of a breach of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and redress is possible only through such a review. 2. If the Federal Court determines that a review is called for, but a lower court has jurisdiction, it shall refer the case to the lower court to reopen proceedings in the matter. 3. The cantonal court shall then also decide on the request for a review if cantonal law does not envisage such a ground for the reopening of proceedings.” 20. Section 140 of the Act provided: The application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time; it must also state the nature of the amendment of the judgment and the redress being sought.” 21. On 2 March 1999, on the basis of that provision, the Federal Court granted, at least in part, an application for review of one of its judgments, after the Court had found a violation in the case of Hertel v. Switzerland (judgment of 25 August 1998, Reports of Judgments and Decisions 1998VI). It held: “... The judgment of the European Court of Human Rights may afford the applicant satisfaction and, through the award of CHF 40,000, financial compensation for the cost of the proceedings. But it does not remove the restrictions imposed on the applicant by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994. These restrictions may be upheld only within the bounds of necessity as defined by the European Court. Since those restrictions may be lifted or limited only by means of an appeal to the Federal Court, the requirement of section 139a of the Federal Judicature Act is met ...” 22. Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, reproduces section 139a of the former Federal Judicature Act. It provides: An application for review of a judgment of the Federal Court on account of a violation of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (ECHR) may be submitted if the following conditions are satisfied: (a) the European Court of Human Rights, in a final judgment, has found a violation of the ECHR or its Protocols; (b) compensation cannot remedy the effects of the violation; (c) the review is necessary to remedy the effects of the violation.”