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THIRD
SECTION
CASE OF
MONNAT v. SWITZERLAND
(Application
no. 73604/01)
JUDGMENT
STRASBOURG
21 September 2006
FINAL
21/12/2006
In the case of Monnat v. Switzerland,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Boštjan M. Zupančič,
President,
John Hedigan,
Luzius Wildhaber,
Lucius
Caflisch,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer, judges,
and Vincent Berger,
Section Registrar,
Having
deliberated in private on 31 August 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 73604/01) against the Swiss
Confederation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Swiss national, Mr
Daniel Monnat (“the applicant”), on 13 June 2001.
- The
applicant was represented by Mr C. Poncet, a lawyer practising in
Geneva. The Swiss Government (“the Government”) were
represented by their Agent, Mr P. Boillat, former Deputy Director of
the Federal Office of Justice in charge of the Human Rights and
Council of Europe Section.
- On
26 October 2004 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1951 and lives in Geneva.
- He
is a journalist with the Swiss Radio and Television Company. At the
material time he was responsible for the current affairs programme
Temps présent (“Present tense”).
- On
6 and 11 March 1997, as part of that programme, the Swiss Radio and
Television Company broadcast on its channel for French-speaking
Switzerland (TSR – Télévision suisse romande) a
report by the applicant entitled “Switzerland’s lost
honour”, concerning Switzerland’s position during the
Second World War.
The
report began by discussing the history of Switzerland during the
Second World War, as supposedly experienced by the people at the time
and taught for many years in schools. Switzerland had been portrayed
as a brave country which, despite its neutrality, had been on the
side of democracy and thus of the Allies. After this recounting of
the “myth”, the journalist stated: “There has been
a somewhat rude awakening.” The programme continued with severe
criticism of Switzerland’s position by prominent figures and
with contrasting opinions of Swiss citizens who had lived through the
war. The journalist said that historians had made efforts to uncover
a significant part of the truth. The programme then described the
attitude of Switzerland and its leaders, emphasising their alleged
affinity with the far right and their inclination towards
rapprochement with Germany. This was followed by an analysis of the
question of anti-Semitism in Switzerland and of the country’s
economic relations with Germany, focusing on the laundering of Nazi
money by Switzerland and on the role of Swiss banks and insurance
companies in the matter of unclaimed Jewish assets.
- The
programme provoked objections from groups of citizens, who filed
complaints under section 4 of the Federal Radio and Television Act
(see paragraph 19 below) with the Independent Complaints Authority
for Radio and Television (“the Complaints Authority”).
- In
the course of its investigation into the complaints, the Complaints
Authority interviewed two historians. It subsequently upheld the
complaints on 24 October 1997 and asked the Swiss Radio and
Television Company to inform it, within ninety days of being notified
of its decision, of the measures taken to redress the breach it had
found, in accordance with section 67(2) of the Federal Radio and
Television Act (see paragraph 20 below).
- The
Swiss Radio and Television Company appealed against the decision.
- On
1 December 1998 the Federal Court allowed the appeal, holding that
there had been a breach of the right to a hearing, quashed the
decision appealed against and referred the case back to the
Complaints Authority for a fresh decision.
- On
27 August 1999 the Complaints Authority, after holding a hearing with
the parties in private, again upheld the citizens’ complaints.
It
observed that “where the events in issue are part of history,
their presentation by journalists is bound to involve difficulties.
Witnesses are increasingly rare. Certain aspects of the social
context that might have explained the conduct of the time become
blurred ...”
The
Complaints Authority held that the programme had breached the
broadcasting regulations deriving from section 4 of the Federal Radio
and Television Act, by which current affairs programmes were bound by
a duty to report objectively in such a way as to reflect the
plurality and diversity of opinion. It pointed out that the second
subsection of section 4 also provided that personal views should be
identifiable as such. The Complaints Authority accordingly found
against the Swiss Radio and Television Company, requesting it to
indicate the measures taken to redress the breach, in accordance with
section 67 of the Federal Radio and Television Act.
- On
10 January 2000 the Swiss Radio and Television Company, the applicant
and a historian who had been involved in the report applied to the
Federal Court to have the decision of 27 August 1999 set aside.
- In
a judgment of 21 November 2000 (served on 15 December), the Federal
Court declared the application inadmissible in respect of the
applicant on the ground that, although he had produced the report, he
was not entitled to take part in the proceedings since he was not
personally a victim of the decision of 27 August 1999.
- In
respect of the Swiss Radio and Television Company, the Federal Court
considered the application on the merits. It held that, although
politically committed journalism was not prohibited in itself, it
should be identifiable as such. In the present case the journalist
had conveyed his support for one particular viewpoint through harsh
criticism. In short, the Federal Court did not object to the
programme’s content but rather to the fact that the method
used, namely politically committed journalism, had not been
identified as such. It pointed out that journalism of that nature was
subject to particularly stringent rules of diligence, which the
programme had not observed. The journalist should have informed
viewers that the report was not presenting an indisputable truth but
rather one possible interpretation of relations between Switzerland
and Germany. The Federal Court accordingly dismissed the Swiss Radio
and Television Company’s application. The relevant parts of the
judgment read as follows:
“5. (b) ...
The impugned programme concerns a historical subject –
Switzerland’s position during the Second World War –
which has returned to prominence on account of the issue of unclaimed
assets. By broadcasting a programme on a matter of public debate, the
Swiss Radio and Television Company was performing the role assigned
to it, and it has rightly not been criticised on that account.
Because of its historical aspect, the programme in issue was faced
with a problem regarding sources: witnesses to the events recounted
are becoming increasingly rare and certain elements that might have
explained the conduct of the time are becoming blurred, as was noted
in the decisions complained of. Accordingly, the explanation of
historical facts relies on hypotheses that may serve as a basis for
the construction of theories. In such circumstances, journalists must
test their hypotheses and, where appropriate, adjust them, even if
they are not expected to reveal an absolute truth. They must abide by
the rules of journalistic diligence. Accordingly, in this context
they must, in particular, indicate any persisting doubts, point out
contradictions between witness accounts and mention the differing
interpretations supported by some historians. On account of its
topical nature, the programme in issue contributes to a debate and
may be described as politically committed journalism in the sense
referred to above. It has to satisfy particularly stringent
requirements of journalistic diligence since it expresses criticism
that may be especially painful. It is necessary to assess whether the
rules of diligence applicable in the present case have been complied
with, bearing in mind that such an assessment must take into account
the situation obtaining at the time when the impugned programme was
broadcast.
6. (a) The impugned programme,
entitled ‘Switzerland’s lost honour’, begins by
discussing the history of Switzerland during the Second World War, as
supposedly experienced by the people at the time and taught for many
years in schools. Switzerland had been depicted as a small, brave
country which had resisted the demoniac forces of Nazism. Despite
being neutral, in their hearts the Swiss had been on the side of
democracy, in other words the Allies. They had deterred the Nazis
from attacking them through their determination to resist, if
necessary with the help of the Réduit, a kind of impregnable
fortress in the Alps. They had displayed generosity by welcoming more
than 230,000 people who had fled the extermination camps and by
temporarily receiving child war victims. Switzerland had introduced
banking secrecy so that Jews could store their savings safely in the
country. After this recounting of the ‘myth’, the
journalist states: ‘There has been a somewhat rude awakening.’
The programme continues with severe criticism of Switzerland’s
position during the Second World War by prominent figures –
most of them Jewish – and with contrasting opinions of Swiss
citizens who lived through the period and young people who know about
it only through the ‘myth’. The journalist then asserts
that in the past twenty-five years, historians studying the period
have uncovered a significant part of the truth. Next, the programme
describes the attitude of Switzerland, and in particular its
political and military leaders, during the Second World War,
emphasising their alleged affinity with the far right and their
inclination towards rapprochement with Germany. The question of Swiss
anti-Semitism is then examined, along with the economic and financial
relations between Switzerland and Germany. The programme alleges that
the Réduit served Germany’s economic interests and
focuses on the laundering of Nazi money by Switzerland and on the
role of Swiss banks and insurance companies in the matter of
unclaimed Jewish assets. The journalist concludes by saying: ‘The
experts of the Volcker Commission and the historians of the Bergier
Commission will no doubt confirm that the Swiss political and
economic elite in this difficult period adapted to the circumstances
rather too well. Their biggest mistake was probably their failure to
acknowledge and come to terms with that attitude after the war; to
acknowledge that the Swiss were not heroes but normal people caught
up in events, who succeeded in taking advantage, for themselves and
their descendants, of the most appalling global crisis of the
twentieth century.’
(b) The Complaints Authority, which did not
criticise the content of the programme in issue, found that the Swiss
Radio and Television Company had breached section 4 of the Federal
Radio and Television Act by using a method, described as politically
committed journalism in the decisions under review, which had not
allowed viewers to form their own opinion. The company had not
observed the principles of journalistic diligence since it had never
suggested that there were differing views among the historians who
had distanced themselves from the ‘myth’ that had built
up with regard to Switzerland’s position during the Second
World War.
(c) The Swiss Radio and Television Company
disputes that the programme in issue can be regarded as politically
committed journalism, which is subject to particularly stringent
rules of diligence. It argues that, in any event, the programme
complied with such rules. The company also complains of a misuse of
discretionary power. It accuses the relevant authority of having
reaffirmed the conclusions of its decisions of 24 October 1997
despite the fact that the additional investigation had virtually
demolished the reasoning on which they were based, and of having
acted arbitrarily by assuming the role of the ultimate authority on
historical science.
7. (a) As the Complaints Authority
noted, the programme in issue sets the ‘myth’ against the
‘truth’ which historians have brought to light, without
indicating the disagreements existing between them. In various
spheres, such as the basis of Switzerland’s economic relations
with Nazi Germany, the purpose of the Réduit or the
explanation of Switzerland’s independence, it makes no
reference to differing views, despite the fact that opinion on these
matters is far from unanimous, as the Complaints Authority showed.
Similarly, the decisions under review observe that the programme in
issue merely provides one explanation for the conduct of a prominent
figure such as General Guisan, without mentioning that there are
other explanations that are just as valid, if not more so.
While accusing the Swiss authorities, at least
implicitly, of having deceived the population for some fifty years
with a ‘myth’, the impugned programme, without admitting
as much, also gives its own interpretation which is no less
categorical. This impression is, moreover, reinforced by interviews,
in which ordinary men and women who lived through the events under
discussion defend the ‘myth’, expressing their emotions
with varying degrees of articulacy, while historians, who are
expected to have a rigorous grasp of their subject, provide the
‘truth’. As the Complaints Authority rightly pointed out,
the programme in issue ridicules the wartime generation by showing
recollections that are incorrect or exaggerated or convey a misplaced
sense of self-satisfaction, contrasting with the cold logic of the
historians. This leaves the impression that the interpretation put
forward in the programme is corroborated by all specialists and thus
reflects the sole historical truth. There is therefore a risk that
one myth might be replaced by another, and only the observance of
strict rules of journalistic diligence can prevent such a lapse.
Furthermore, the programme does not always place the events it
describes in their historical context as precisely as is desirable.
It takes insufficient account of certain important aspects (for
example, the threats Switzerland faced as a result of being
surrounded by the Axis powers, and the position of other neutral or
even Allied powers) for viewers to be able to form an opinion, or
plays down their significance. Lastly, it does not always enable
facts to be distinguished from comment (see the speech given on 7 May
1995 by Kaspar Villiger).
(b) The Swiss Radio and Television Company
wrongly asserts that the Complaints Authority should have had regard
to its programmes as a whole in assessing whether the diversity of
opinions among historians had been reflected. It refers in that
connection to the special programme of 19 February 1997 on General
Guisan, ‘Switzerland in torment’, and the debate
broadcast on 21 May 1997, ‘Switzerland – neutral or
cowardly’; in addition, it announces that the programme in
issue will be followed up in the light of the findings of the
commissions set up by the Federal Council. It must be noted, however,
that the impugned programme appears to be self-contained. It does not
refer to the previous programme of 19 February 1997 or to the
subsequent one of 21 May 1997. Furthermore, these three programmes
were not advertised by the Swiss Radio and Television Company as
forming a coherent whole, and viewers of the programme in issue could
not have suspected that it was part of a series, if indeed it was.
(c) The impugned programme adopts an
extremely critical approach towards Switzerland’s position
during the Second World War, as is legitimate. However, it neglects
to mention that it is not revealing ‘the truth’ but one
of several different interpretations of relations between Switzerland
and Germany during that period. Accordingly, viewers are not provided
with all the material enabling them to form their own opinion.
Furthermore, the programme in issue lacks objectivity and
transparency in that it never mentions either the existence or the
essence of other interpretations of Switzerland’s position
during the Second World War, whereas the version it presents is not
unanimously supported by historians.
The Complaints Authority emphasised the cultural role
assigned to the Swiss Radio and Television Company, the autonomy it
enjoys and the conflicts that may arise between these two aspects. On
that basis, it reached the conclusion that the programme in issue had
not breached section 3(d) of the Federal Radio and Television Act.
The Complaints Authority then referred to the principles applicable
to the provision of information, laying particular emphasis on the
principle of journalistic diligence. It pointed out the difficulties
inherent in programmes dealing with historical subjects. It also gave
a precise definition of its power of review. Having thus delimited
the scope of its intervention, the Complaints Authority undertook an
analysis of the impugned programme. It examined the programme’s
structure and the method used to present the subject. In addition, it
conducted research into whether the diversity of views had been
reflected with sufficient accuracy. Following a thorough examination,
the Complaints Authority found that the programme in issue had
breached section 4 of the Federal Radio and Television Act. The
Complaints Authority did not exceed or misuse its discretionary
power. Indeed, it remained within the scope of the powers conferred
on it, being precluded, as it emphasised itself, from stating a
position on historical events and their interpretation or on the
validity of the views expressed by the historians appearing on the
programme in question. Its criticisms of the Swiss Radio and
Television Company, moreover, do not concern the content of the
programme but solely the manner in which it presented Switzerland’s
position during the Second World War to viewers. In the final
analysis, the Complaints Authority cannot be criticised for finding,
in accordance with federal law, that the programme in issue breached
section 4 of the Federal Radio and Television Act, by which Article
55 bis, paragraph 2, of the former Constitution is given
statutory expression.
Moreover, it is not surprising that the Complaints
Authority should have reached the same conclusions as in its previous
decisions of 24 October 1997. The additional investigations made it
possible to clarify some points regarding the content of the impugned
programme, without having any bearing on its form or style.
(d) The Swiss Radio and Television Company is
also wrong to complain that its independence has been undermined
(freedom of opinion, of the media and of science). It overlooks the
fact that the freedom it enjoys is not absolute but is limited by
section 4 of the Federal Radio and Television Act, which the
Complaints Authority is required to apply. The Complaints Authority’s
review of compliance with that provision cannot therefore in itself
undermine the company’s independence.
8. (a) The Swiss Radio and
Television Company alleges that the decisions complained of infringe
Article 10 of the European Convention on Human Rights (ECHR). This
provision guarantees freedom of expression, which includes freedom to
hold opinions and to receive and impart information and ideas
(Article 10 § 1 ECHR). This freedom is not absolute (Article 10
§ 2 ECHR).
(b) According to the case-law, restrictions
on the freedom of expression enshrined in this provision are
acceptable if they are prescribed by law, based on a legitimate aim
under Article 10 § 2 ECHR and necessary in a democratic society
to achieve that aim (see the unreported judgment of 12 January 1996
in the case of B. v. Direction générale de
l’Entreprise des PTT suisses, point 3 (b)).
Furthermore, with regard to freedom of expression,
Article 10 ECHR does not guarantee any greater protection than
unwritten constitutional law (ATF [Judgments of the Swiss Federal
Court] 119 Ia 71, point 3a, p. 73, 505, point 3a, p. 506; 117 Ia 472,
point 3b, p. 477). The Federal Court has also pointed out that
Article 10 ECHR does not afford more extensive protection than
section 5 of the Federal Radio and Television Act to broadcasters –
in so far as they are entitled to rely on it. The freedom it affords
to receive and impart information and ideas without interference by
public authority includes the freedom of radio and television
broadcasting, but this freedom is not unlimited (ATF 122 II 471,
point 4b, p. 479).
(c) The Swiss Radio and Television Company’s
complaint must be dismissed. The Complaints Authority’s
criticisms of the company pursue a legitimate aim under Article 10 §
2 ECHR, since they seek to protect the right of viewers to receive
objective and transparent information.
9. In the light of the foregoing, the
applications must be refused in so far as they are admissible.”
- In
a letter of 26 February 2001, the Swiss Radio and Television Company
informed the Complaints Authority of the measures taken in accordance
with section 67(2) of the Federal Radio and Television Act as a
result of the Complaints Authority’s decision of 27 August
1999, upheld by the Federal Court in its judgment of 21 November
2000.
“... Further to this procedure, two preliminary
remarks must be made. As a result of the procedure conducted in 1999
by the Complaints Authority following the Federal Court’s
judgment of 1 December 1998, the Swiss Radio and Television Company
had the opportunity to put forward its point of view and no factual
errors could be identified in the programme in question (see also the
Federal Court’s judgment of 21 November 2000, p. 15),
since the criticisms no longer related to the content of the
programme ... In addition ... the Complaints Authority emphasised the
critical function that broadcasters, by their very nature, are also
required to perform (as the Federal Court also confirmed in its
judgment of 21 November 2000, p. 14) and the difficulty inherent in
the genre of programmes on historical subjects ...
Further to the decisions by your authority, as upheld by
the Federal Court, we hereby give you formal notice of the following
measures taken in accordance with section 67, subsection (2), of the
Federal Radio and Television Act, as instructed in your decisions
...:
1. The decisions have been communicated to
the News Editors’ Conference, which has taken note of them.
2. The Conference has drawn attention to the
manner in which sensitive subjects of a highly emotive nature are to
be dealt with and to the need to take into account the public impact,
using as an example the procedure and decisions in question here.
...
4. It has also been specifically agreed that
in the coverage of sensitive subjects, as in the programme in
question, where there are ‘differing views’ among
historians or other participants (see the Federal Court’s
judgment of 21 November 2000, pp. 12-13, and the Authority’s
decisions, paragraphs 8.5 and 8.11), such differences are to be
appropriately indicated, although, as the Authority itself states in
its decisions (paragraph 8.4), this does not require the ‘tiniest
nuances ... to be taken into account’.
5. Lastly, the decisions have been
incorporated into all the Swiss Radio and Television Company’s
training courses ...”
- In
its reply of 26 March 2001, the Complaints Authority stated that it
found the measures taken to be adequate and would no longer propose
taking the measures referred to in section 67(3) of the Federal Radio
and Television Act. It thereby declared the procedure closed.
- On
10 May 2001 the competent bailiff of the city of Geneva drew up an
official report attesting that the broadcast had been “placed
under a legal embargo and that as a result it [was] not possible to
obtain a copy of it from the TSR sales department or from any
European or foreign television channel”.
II. RELEVANT DOMESTIC LAW
A. The Federal Constitution
- Article
93 of the Federal Constitution provides:
Article 93: Radio and television
“1. Legislation on radio and television
and on other forms of transmission of productions and information via
public telecommunications services shall fall within the jurisdiction
of the Confederation.
2. Radio and television shall contribute to
education and cultural development, to the free formation of opinion
and to entertainment. They shall take into account the
particularities of the country and the requirements of the cantons.
They shall portray events accurately and provide a fair reflection of
the diversity of opinions.
3. The independence of radio and television
and autonomy in programming shall be guaranteed.
4. The position and role of other media, in
particular the press, shall be taken into account.
5. Complaints about programmes may be
submitted to an independent authority.”
B. The Federal Radio and Television Act
- Section
4 of the Federal Radio and Television Act of 21 June 1991 provides:
Section 4: Principles applicable to the provision of
information
“(1) Programmes shall portray events
accurately. They shall fairly reflect the plurality of events and the
diversity of opinions.
(2) Personal
views and comments must be identifiable as such.”
- Sections
58 to 67 of the Act govern the Complaints Authority. They provide, in
so far as relevant:
Section 58: Composition, status
“(1) The Federal Council shall appoint
an authority responsible for examining complaints ..., composed of
nine members discharging their duties as a secondary activity ...
(2) The Complaints Authority shall rule on
complaints concerning radio and television programmes transmitted by
Swiss broadcasters.
(3) In performing its duties, the Complaints
Authority shall not be bound by any instructions from the Federal
Assembly, the Federal Council or the federal administration.
...”
Section 62: Complaint
“(1) Within thirty days from the
submission of the written opinion ..., a complaint about the
programme in question may be submitted in writing to the Complaints
Authority. The opinion of the mediation body must be attached to the
complaint.
(2) The complaint must give a brief
indication of the nature of the alleged breach of the regulations on
broadcasting as set out in this Act, in the provisions on its
implementation or in the licence.”
Section 67: Administrative measures
“(1) If the supervisory authority finds
a breach of the regulations, it may:
(a) order the licence-holder to redress the
breach or to take measures to prevent any further recurrence; the
licence-holder shall inform the authority of the measures taken;
(b) require the licence-holder to forfeit any
unlawful financial benefit to the Confederation;
(c) propose that the Department restrict,
suspend or revoke the licence or subject it to further conditions.
(2) If the Complaints Authority finds a
breach of the regulations, it shall inform the broadcaster. Within an
appropriate period, the broadcaster shall take measures to redress
the breach and to prevent any further recurrence. It shall inform the
Complaints Authority of the arrangements made.
(3) If the broadcaster has not made
sufficient arrangements within an appropriate period, the Complaints
Authority may propose that the Department take the measures provided
for in subsection (1)(c) above.”
- Sections
70 to 73 concern punitive measures. Section 70 provides, in so far as
relevant to the present case:
Section 70: Penalties
“(1) A fine of up to 5,000 francs shall
be imposed on anyone who:
...
(c) seriously or repeatedly breaches the
regulations on broadcasting as laid down in international agreements,
in this Act or the provisions on its implementation, or in the
licence, provided that the Complaints Authority seeks such a penalty.
...
(4) In less serious cases, the offender may
be exempted from the penalty referred to in subsection (1) above.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant alleged that the Swiss legislation on supervision of
broadcasting and the Complaints Authority’s decision of 27
August 1999, as upheld by the Federal Court on 21 November 2000, had
hindered the exercise of his freedom of expression as guaranteed by
Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
1. The parties’ submissions
(a) The Government
- The
Government rejected as wholly erroneous and unfounded the applicant’s
argument that the Complaints Authority’s decision of 27 August
1999 had effectively amounted to an absolute and permanent ban on
dissemination of his work in any form in the future. They further
maintained that under section 67 of the Federal Radio and Television
Act (see paragraph 20 above), the Complaints Authority was empowered
only to make findings and could not impose any kind of penalty. It
was limited to establishing whether the programme in issue had
breached broadcasting regulations and, if so, informing the
broadcaster, which was then required to take measures to redress the
breach and prevent any recurrence.
- The
Government further submitted that the “legal embargo”
which appeared to have been imposed on the video recording of the
programme in question had not resulted in any way from the decisions
of the Complaints Authority or the Federal Court and accordingly
could not engage the Government’s responsibility.
The
Government also took the view that in the instant case the
supervisory procedure for television and radio programmes had been
instituted solely in respect of the Swiss Radio and Television
Company as the licence-holder and the broadcaster of the programme in
issue. The finding of a breach of the licence was therefore directed
solely at the company as the broadcaster.
- The
Government further pointed out, as the Federal Court had, that the
applicant, as a journalist, could not incur personal liability but
was under the authority of his employer, the Swiss Radio and
Television Company. On that account, they were convinced that the
applicant had been mistaken in referring to section 70 of the Federal
Radio and Television Act (see paragraph 21 above). They pointed out
that his reference to that provision was entirely irrelevant since it
had not been applied in his case, it had remained a dead letter since
the entry into force of the Federal Radio and Television Act in 1992
and, moreover, there were plans to repeal it when the Act was next
amended.
- In
conclusion, the Government submitted that the complaint under Article
10 should be declared inadmissible since the applicant was not a
“victim” within the meaning of Article 34.
(b) The applicant
- The
applicant disputed the Government’s submissions. He was
persuaded that the measures taken against him had indeed amounted to
“blacklisting” him and imposing a de facto and de
jure ban on the programme in issue. In support of that argument,
he referred to the official report drawn up by the competent Geneva
bailiff on 10 May 2001, which stated that the programme had been
placed “under a legal embargo”.
- The
applicant was convinced that the legal consequences he now faced were
the direct result of the proceedings before the Federal Court. In
that connection he questioned whether the Swiss Radio and Television
Company was really independent, in particular because the appointment
of its director had to be approved by the Federal Government and most
of its resources came from a federal tax known as the “licence
fee”.
- As
to the contention that, as a journalist, he could not incur personal
liability, the applicant pointed out that under Swiss law persons
employed as journalists could incur “civil” liability
(Articles 41 et seq. of the Code of Obligations and Article 28 of the
Civil Code) or “criminal” liability for defamation
(Article 173 of the Criminal Code).
2. The Court’s assessment
- The
Court reiterates that it falls first to the national authorities to
redress any alleged violation of the Convention. In this regard, the
question whether an applicant can claim to be the victim of the
violation alleged is relevant at all stages of the proceedings under
the Convention (see Karahalios v. Greece (no. 1), no.
62503/00, § 21, 11 December 2003, and Malama
v. Greece (dec.), no. 43622/98, 25 November 1999).
- The
word “victim” in the context of Article 34 of the
Convention denotes the person directly affected by the act or
omission in issue, the existence of a violation of the Convention
being conceivable even in the absence of prejudice (see Brumărescu
v. Romania [GC], no. 28342/95, § 50, ECHR 1999 VII). An
applicant cannot claim to be a “victim” within the
meaning of Article 34 of the Convention unless he is or has been
directly affected by the act or omission in question or runs the risk
of being directly affected by it (see Otto-Preminger-Institut v.
Austria, 20 September 1994, § 39, Series A no. 295-A,
and Norris v. Ireland, 26 October 1988, §§ 30 et
seq., Series A no. 142). It is not therefore possible to claim to be
the “victim” of an act which is deprived, temporarily or
permanently, of any legal effect (see Benamar and Others v. France
(dec.), no. 42216/98, 14 November 2000). The Convention does
not institute for individuals a kind of actio popularis for
its interpretation and thus does not permit individuals to complain
against a law in abstracto simply because they feel that it
contravenes the Convention (see Norris, cited above, §
30, and Klass and Others v. Germany, 6 September 1978, §
33, Series A no. 28).
- Turning
to the circumstances of the present case, the Court considers that,
in so far as the applicant intended to complain that the supervision
of broadcasting under the Federal Radio and Television Act was
inappropriate, this complaint must be dismissed since it is directed
in abstracto at general legal arrangements alleged to be in
breach of the Convention.
- On
the other hand, the Court observes that the competent Geneva bailiff
certified on 10 May 2001 that it was no longer possible to purchase a
copy of the programme in issue, either from TSR or from other
European television channels, since it had been placed under a “legal
embargo”. The Court is not satisfied by the Government’s
argument that the “legal embargo” to which the video
recording of the programme was subject did not result in any way from
the Complaints Authority’s decision, as subsequently upheld by
the Federal Court. In this connection, it observes that the official
report dated 10 May 2001 was issued only a few months after the
Federal Court, in its judgment of 21 November 2000, had endorsed the
Complaints Authority’s decision of 27 August 1999 upholding the
citizens’ complaints. In the Court’s opinion, there is
clearly both a temporal and a material connection between the Swiss
authorities’ allowing the complaints and the suspension of
sales of the applicant’s report.
It
follows that the applicant, as the maker of the product in question,
was directly affected by the suspension of its sale and that at that
time he could therefore claim to be the “victim” of a
violation of the Convention, since even an act that has only
temporary legal effects may be sufficient for an applicant to be
recognised as a “victim” (see Benamar and Others,
cited above). Accordingly, the Court is not required to ascertain
whether the ban on the report is still in place, in the absence of
any evidence from the Government as to when the embargo was lifted.
It
should also not be overlooked that the upholding of complaints which
were, admittedly, directed against the applicant’s employer but
concerned a programme that he had made could have a significant
impact on his job security as a journalist (see, mutatis mutandis,
Groppera Radio AG and Others v. Switzerland, 28 March 1990, §
49, Series A no. 173).
- In
conclusion, the Court considers that the applicant can claim to be
the victim of the alleged violation.
It
follows that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. The Court notes,
moreover, that the complaint is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Whether there has been interference
- The
Government submitted, essentially for the same reasons they had
advanced in relation to the question of “victim” status,
that the act or omission in issue had not amounted to interference
with the applicant’s freedom of expression.
- The
Court observes that, in so far as the applicant intended to complain
of the inappropriate nature of broadcasting supervision, this
complaint has been declared inadmissible in that he lacked “victim”
status.
- On
the other hand, it follows, mutatis mutandis, from the
arguments submitted in relation to the question of “victim”
status that the relevant authorities’ decisions upholding the
complaints may be regarded as “interference” with the
exercise of the applicant’s freedom of expression.
2. Whether the interference was justified
- Such
interference will breach Article 10 unless it satisfies the
requirements of the second paragraph of that Article. It thus remains
to be determined whether the interference was “prescribed by
law”, pursued one or more legitimate aims under that paragraph
and was “necessary in a democratic society” to achieve
them.
(a) “Prescribed by law”
- The
Government pointed out that the activities of the Complaints
Authority were based on Article 93 of the Federal Constitution and
sections 58 et seq. of the Federal Radio and Television Act (see
paragraphs 18 and 20 above).
- The
Court observes that the applicant did not really dispute that the
interference with the exercise of his freedom of expression had been
based on a law in the strict sense, in particular on sections 4 and
58 et seq. of the Federal Radio and Television Act (see paragraphs 19
and 20 above). It sees no reason to conclude otherwise.
(b) Legitimate aim
- The
Government further maintained that the Complaints Authority’s
criticisms of the Swiss Radio and Television Company had indisputably
pursued a legitimate aim for the purposes of Article 10 § 2 of
the Convention since they had been intended to protect the right of
viewers to receive objective and transparent information. The measure
had therefore been justified by “the protection of ... the
rights of others” within the meaning of that provision.
- The
Court shares that view, which, moreover, is clearly apparent from the
Federal Court’s judgment of 21 November 2000 (point 8 (c)).
(c) “Necessary in a democratic
society”
(i) The parties’ submissions
(α) The applicant
- The
applicant did not share the Government’s view that a television
programme in today’s pluralistic audiovisual climate had a
special impact that the print media could not be said to have.
- He
therefore disputed the Government’s allegation that, in
watching his programme, viewers were exposed to a single point of
view. Even supposing that that had been the case, he argued that
placing restrictions on historical debate was highly problematic,
especially where the subject under discussion was Switzerland’s
role during one of the major events of the history of humanity.
- The
applicant pointed out that the programme to which the Government had
alluded, entitled “Nazi gold and Jewish money” (“Nazigold
und Judengeld”), had been broadcast on 3 July 1997, after
the programme he had made but well before the Complaints Authority’s
decision of 27 August 1999 in the present case. He inferred from this
that while debate on Switzerland’s role had been permitted
before the measures had been taken against him, that was no longer
the case. It also followed, in his submission, that it was dangerous
for anyone working for Swiss television to express a view on the
subject, since that would entail considerable occupational risk.
- The
applicant also submitted that subjecting a programme, which posed no
threat to national security, did not undermine the protection of the
personal rights of others, did not entail a criminal offence and did
not breach the legislation on unfair competition, to particular
scrutiny in order to ensure its “objectivity” was
tantamount to rendering Article 10 § 2 devoid of purpose and
imposing a legal requirement to toe the government line on a
television broadcaster which necessarily had a monopoly on the
provision of information at national level.
- Relying
on the judgment in Jersild v. Denmark (23 September 1994,
Series A no. 298), the applicant contended, firstly, that it was
wrong to maintain that the programme “Switzerland’s lost
honour” had been produced and presented in such a way as to
give viewers the impression that it reflected the “sole
historical truth” (citing the Federal Court’s judgment,
point 7 (a)). In his submission, Article 10 precluded the imposition
of sanctions based on an alleged duty for journalists, when
presenting facts or opinions, to stress that the viewpoint shown was
not their own, was not universally shared or was not the only
possible one.
- Having
regard to the foregoing, the applicant concluded that the upholding
of the complaints by the domestic authorities had not been necessary
in a democratic society for the purposes of Article 10 § 2.
(β) The Government
- The
Government disputed the arguments put forward by the applicant. They
took the view that the supervision of radio and television programmes
remained essential in several respects. Firstly, it was justified by
the concern to protect the public from inappropriate influences, an
aspect of particular importance in a direct democracy. Television had
a stronger influence on opinion than other media. On that account
special rules, distinct from those applicable to the print media,
were necessary. Supervision of the content of programmes was also
justified, in the Government’s submission, by the fact that the
Swiss Radio and Television Company enjoyed a special status since it
was the sole licence-holder for public service television. As such,
special rights and obligations were conferred on it, such as the
entitlement to nearly all the proceeds from the radio and television
licence fee. It was only natural that the manner in which it
performed its function for the benefit of the public at large should
be subject to scrutiny.
- The
Government further emphasised that the possibility of repeating the
programme, even on one of the Swiss Radio and Television Company’s
channels, could not be excluded outright provided that it was
accompanied by an appropriate introduction making clear that it
sought to convey a particular argument.
- With
regard to the applicant’s allegation that the administrative
measures taken in the instant case had effectively made the free
circulation of opinions and information on a particular topic
impossible, the Government observed that the requirement to portray
events accurately in accordance with section 4 of the Federal Radio
and Television Act (see paragraph 19 above) did not in any way
preclude the expression of political or historical opinions on a
given subject. The only condition laid down in Swiss law was that
opinions of this kind should be identified as such.
- The
fact that supervision of programmes did not hinder the free
circulation of ideas was clearly illustrated, in the Government’s
submission, by the example of the report on “Nazi gold and
Jewish money”, broadcast on 3 July 1997 by the German-speaking
Swiss television channel SF-DRS, which was part of the Swiss Radio
and Television Company. The report had given rise to a large number
of complaints to the Complaints Authority, but they had all been
dismissed on the ground that the report had been presented in such a
way as to make clear to viewers that it was conveying a particular
message.
- Lastly,
the Government argued that the frequent references in the applicant’s
memorial to the Court’s findings in Jersild (cited
above) were irrelevant since, firstly, the applicant had not been the
subject of criminal proceedings and, secondly, the programme in issue
lacked transparency and did not indicate that it was presenting the
applicant’s own views and not an objective historical truth.
- In
conclusion, the Government submitted that the measures taken by the
relevant authorities had been necessary in a democratic society
within the meaning of Article 10 § 2 of the Convention.
(ii) The Court’s assessment
(α) Principles established by the Court
- The
main issue to be determined is whether the interference was
“necessary in a democratic society”. The fundamental
principles relating to this issue are well established in the Court’s
case-law and have been summarised as follows (see, for example,
Hertel v. Switzerland, 25 August 1998, § 46, Reports
of Judgments and Decisions 1998-VI; Jersild, cited above,
§ 31; and Steel and Morris v. the United Kingdom, no.
68416/01, § 87, ECHR 2005 II):
“(i) Freedom of expression constitutes
one of the essential foundations of a democratic society and one of
the basic conditions for its progress and for each individual’s
self-fulfilment. Subject to paragraph 2 of Article 10, it is
applicable not only to ‘information’ or ‘ideas’
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no ‘democratic society’.
As set forth in Article 10, this freedom is subject to exceptions,
which ... must, however, be construed strictly, and the need for any
restrictions must be established convincingly ...
(ii) The adjective ‘necessary’,
within the meaning of Article 10 § 2, implies the existence of a
‘pressing social need’. The Contracting States have a
certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with European supervision, embracing
both the legislation and the decisions applying it, even those given
by an independent court. The Court is therefore empowered to give the
final ruling on whether a ‘restriction’ is reconcilable
with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising
its supervisory jurisdiction, is not to take the place of the
competent national authorities but rather to review under Article 10
the decisions they delivered pursuant to their power of appreciation.
This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably,
carefully and in good faith; what the Court has to do is to look at
the interference complained of in the light of the case as a whole
and determine whether it was ‘proportionate to the legitimate
aim pursued’ and whether the reasons adduced by the national
authorities to justify it are ‘relevant and sufficient’
... In doing so, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they
relied on an acceptable assessment of the relevant facts ...”
(β) Application of the above principles
in the present case
The public interest inherent in the television
programme
- In
the present case, complaints were filed by citizens against the
applicant, who had produced a historical report shown on a national
television channel as part of a current affairs programme. As a
result, the channel was obliged to take measures to redress the
breach of broadcasting regulations. The decision to uphold the
viewers’ complaints was justified by the relevant authorities
on the ground that the method used in the report, namely politically
committed journalism, had not been identified as such. The applicant
should have informed viewers, according to the Complaints Authority
and the Federal Court, that the report was not presenting an
indisputable truth but rather one possible interpretation of
relations between Switzerland and Germany.
- The
Court reiterates that it is an integral part of freedom of expression
to seek historical truth, but considers that it is not called upon to
settle the issue of the role actually played by Switzerland in the
Second World War, which is part of an ongoing debate among historians
(see, mutatis mutandis, Chauvy and Others v. France,
no. 64915/01, § 69, ECHR 2004 VI, and Lehideux and
Isorni v. France, 23 September 1998, § 47, Reports
1998 VII). Instead, its task is to consider whether in the
instant case the measures taken were proportionate to the aim
pursued. To that end, it is required to weigh the need to protect the
right of viewers to receive objective and transparent information
against the applicant’s freedom of expression (see, mutatis
mutandis, Vérités Santé Pratique Sarl v.
France (dec.), no. 74766/01, 1 December 2005).
- The
Court would also point out that there is little scope under
Article 10 § 2 of the Convention for restrictions on
political speech or on debate of questions of public interest (see
Wingrove v. the United Kingdom, 25 November 1996, § 58,
Reports 1996 V; Lingens v. Austria, 8 July 1986, §
42, Series A no. 103; Castells v. Spain, 23 April 1992, §
43, Series A no. 236; and Thorgeir Thorgeirson v. Iceland,
25 June 1992, § 63, Series A no. 239). The most careful scrutiny
on the part of the Court is called for when, as in the present case,
the measures taken or sanctions imposed by the national authorities
are capable of discouraging the participation of the media in debates
over matters of legitimate public concern (see Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR
1999 III, and Jersild, cited above, § 35).
That
being so, the Court notes that the present case is to be seen in the
context of a public debate on Switzerland’s role during the
Second World War. Accordingly, as the Federal Court also found, the
programme in issue undoubtedly raised a matter of extremely serious
public concern and the broadcasting of information about it forms an
integral part of the task assigned to the media in a democratic
society (see, mutatis mutandis, Radio France and Others v.
France, no. 53984/00, § 34, ECHR 2004 II).
- The
Court further reiterates that in exercising its supervisory
jurisdiction, it must look at the impugned interference in the light
of the case as a whole, including the content of the remarks held
against the applicant and the context in which he made them (see
Lingens, cited above, § 40, and Chauvy and Others,
cited above, § 70). Accordingly, it emphasises that the
programme in issue was broadcast as part of a public debate on a
subject that had received much coverage in the Swiss media and had
deeply divided public opinion in the country. Discussions on the
position adopted by those in authority during the Second World War,
as the Federal Court itself noted (in point 5 (b) of its judgment),
were particularly heated at the time when the applicant’s
programme was broadcast in early 1997, especially because of the
matter of unclaimed funds.
- It
should also be borne in mind that the limits of acceptable criticism
are wider for politicians and civil servants acting in an official
capacity than for private individuals (see Oberschlick v. Austria
(no. 2), 1 July 1997, § 29, Reports 1997-IV, and
Janowski v. Poland [GC], no. 25716/94, § 33, ECHR
1999 I). In the instant case the criticism expressed in the
programme in issue was not directed at the Swiss people and their
attitude during the Second World War but at the country’s
leaders during that period. The Swiss courts therefore had a narrower
margin of appreciation in the matter.
- In
view of the foregoing and of what was at stake, namely freedom of
expression in the context of a television programme raising a matter
of major public concern, the Swiss authorities had only a limited
margin of appreciation in determining whether there was a “pressing
social need” to take the measures in question against the
applicant. Consequently, the Court will examine in scrupulous detail
whether those measures were proportionate to the legitimate aim
pursued under Article 10 § 2 (see Radio France and Others,
cited above, § 34).
The authorities’ interest in taking action
against the programme
- It
must be noted at the outset that no complaints by any of the persons
referred to in the programme in issue or their descendants appear to
have been lodged with the Swiss courts on the basis of alleged
breaches of their right to protection of their personality or
reputation, as appropriate. Nor have the Government argued that the
applicant’s allegations were likely to undermine Switzerland’s
security or the foundations of the rule of law or democracy. In
addition, there was no question of disclosure of information received
in confidence within the meaning of Article 10 § 2. In short,
the Complaints Authority did not actually criticise the content of
the report in issue (see the Federal Court’s judgment, points 6
(b) and 7 (c)).
- In
the Court’s view, the fact that a number of viewers who had
been displeased or surprised by the programme filed complaints after
the report had been broadcast does not in itself constitute a
sufficient reason to justify taking action. It reiterates in this
connection that freedom of expression is applicable not only to
“information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb; such are the demands
of that pluralism, tolerance and broadmindedness without which there
is no “democratic society” (see Lehideux and Isorni,
cited above, § 55, and Murphy v. Ireland, no. 44179/98, §
72, ECHR 2003-IX). This also applies, as in the present case, to
historical debate, “in a sphere in which it is unlikely that
any certainty exists” (see, mutatis mutandis, Hertel,
cited above, § 50, and Vérités Santé
Pratique Sarl, cited above) and in which the dispute is
still ongoing (see Lehideux and Isorni, cited above, §
55).
- The
Court further notes that the historical events discussed in the
programme in issue had occurred more than fifty years previously.
Even though remarks such as those by the applicant are always likely
to reopen the controversy among the public, the lapse of time makes
it inappropriate to deal with such remarks, fifty years on, with the
same severity as ten or twenty years before. That forms part of the
efforts that every country must make to debate its own history openly
and dispassionately (ibid.; see also, mutatis mutandis,
Editions Plon v. France, no. 58148/00, § 53, ECHR
2004 IV, in which the Court reiterated the principle that the
passage of time must be taken into account in assessing whether a
measure such as banning a book is compatible with freedom of
expression).
Journalists’ “duties and
responsibilities”
- The
main reason the complaints were upheld by the Complaints Authority
and the Federal Court was that the report did not give a sufficiently
clear indication of the “subjective” nature of its
content. In this connection, the Court reiterates that people
exercising freedom of expression, including journalists, take on
“duties and responsibilities”, the scope of which depends
on their situation and the technical means they use (see, mutatis
mutandis, Handyside v. the United Kingdom, 7 December
1976, § 49 in fine, Series A no. 24), perhaps all the
more so, as here, in the case of public service television
broadcasting.
- Accordingly,
while recognising the vital role played by the media in a democratic
society, the Court considers that it must be borne in mind that
journalists cannot, in principle, be released from their duty to obey
the ordinary criminal law on the basis that Article 10 affords them
protection. Indeed, paragraph 2 of Article 10 defines the boundaries
of the exercise of freedom of expression. This applies even with
respect to press coverage of serious matters of legitimate concern
(see Bladet Tromsø and Stensaas, cited above, §
65).
- The
Court thus reiterates that by reason of the “duties and
responsibilities” inherent in the exercise of freedom of
expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith and provide reliable and
precise information in accordance with the ethics of journalism (see
Fressoz and Roire v. France [GC], no. 29183/95, §
54, ECHR 1999 I).
- Where
the “duties and responsibilities” of journalists are
concerned, the potential impact of the medium of expression involved
is an important factor in assessing the proportionality of the
interference. In this context, the Court has acknowledged that
account must be taken of the fact that the audiovisual media have a
more immediate and powerful effect than the print media (see Jersild,
cited above, § 31; Murphy, cited above, § 69; and
Radio France and Others, cited above, § 39). Accordingly,
the domestic authorities in principle have a broader margin of
appreciation where a television report is concerned, as in the
present case.
Nevertheless,
the Court considers it essential to point out that Temps présent
is a current affairs programme with a serious reputation. It
therefore doubts whether the maker of the programme, a journalist who
is reasonably well known in the French-speaking part of Switzerland,
could really have been required to make it any clearer that the
programme reflected his own “subjective” views and not
the “sole historical truth” – which, in any event,
does not exist in relation to historical debate, as the Federal Court
also observed (see point 7 (a) and (c) of its judgment). It cannot
therefore be argued that the applicant, whose report was indisputably
based on historical research, failed to discharge his duty to act in
good faith (see, mutatis mutandis, Radio France and Others,
cited above, § 37 in fine).
- Having
regard to the foregoing, the Court is not satisfied that the grounds
given by the Federal Court were “relevant and sufficient”,
even with regard to information imparted in a report broadcast on a
State-owned television channel, to justify upholding the complaints
about the programme “Switzerland’s lost honour”.
Proportionality of the interference
- The
Court reiterates that the nature and severity of the penalties
imposed are also factors to be taken into account when assessing the
“proportionality” of the interference in issue (see, for
example, Chauvy and Others, cited above, § 78).
It
observes that in the instant case the decisions by the relevant
authorities to uphold the viewers’ complaints did not, strictly
speaking, prevent the applicant from expressing himself, since they
were taken after the report “Switzerland’s lost honour”
had been broadcast (see, by contrast, Observer and Guardian v.
the United Kingdom, 26 November 1991, § 60, Series A no.
216). The decisions in question nevertheless amounted to a form of
censorship tending to discourage him from making criticisms of that
kind again in future (for a similar finding, see Cumpănă
and Mazăre v. Romania [GC], no. 33348/96, § 114, ECHR
2004 XI). In the context of debate on a matter of major public
concern, such a sanction may well deter journalists from contributing
to public discussion of issues affecting the life of the community.
By the same token, it is liable to hamper the media in performing
their task as a purveyor of information and public watchdog (see,
mutatis mutandis, Barthold v. Germany, 25 March 1985, §
58, Series A no. 90, and Lingens, cited above, §
44).
Moreover,
the censorship was subsequently given practical effect when the
competent Geneva bailiff issued the official report placing the
broadcast “under a legal embargo”, thereby formally
prohibiting the sale of the product in question.
Conclusion
- In
the light of the circumstances of the case as a whole, the Court
considers that, having regard in particular to the interest of a
democratic society in ensuring and maintaining freedom of expression,
to the limited margin of appreciation regarding information of public
concern, to the fact that the criticism in the instant case concerned
the actions of senior government officials and politicians, and to
the serious nature of the report in question and the research on
which it was based, the Swiss authorities’ upholding of the
complaints was not a measure that was reasonably proportionate to the
legitimate aim pursued.
There
has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant alleged that he had not had a public hearing before the
Swiss authorities, as required by Article 6 § 1 of the
Convention, which provides, in so far as relevant:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a ... public hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
- The
Government first noted that the applicant had not exhausted domestic
remedies in that he had not submitted any allegations concerning
Article 6 of the Convention, even in substance, before the domestic
authorities. He should, they argued, have used the remedies available
in ordinary law, such as actions deriving from the right to
protection of personality, from the Code of Obligations, from
criminal law, or from legislation on unfair competition.
- The
Government further asserted that the application was inadmissible as
Article 6 was not applicable to the instant case. In that connection,
they considered it relevant to point out that the Complaints
Authority was limited to finding a breach of broadcasting regulations
and had no power to impose sanctions. Accordingly, Article 6 was not
applicable in its “criminal” aspect.
- The
applicant disputed the Government’s arguments. He pointed out
that as the maker of the programme in issue he was the sole person
entitled to disseminate his work, for example, via radio, television
or other similar media. He further contended that the proceedings
before the authorities had indeed concerned a right and that there
had been a genuine dispute (“contestation”) within
the meaning of the Court’s case-law, the outcome of which had
been decisive for the right in question. Those conditions were
indisputably satisfied since the dispute had solely concerned the
lawful or unlawful use of the applicant’s work in the past,
present and future.
B. The Court’s assessment
- The
Court does not consider that it is required to determine whether the
guarantees deriving from Article 6 apply in the instant case, seeing
that this complaint is to be declared inadmissible on other grounds.
- It
reiterates the principle that each complaint to be submitted to the
Court must first have been made to the appropriate national courts,
at least in substance, in accordance with the formal requirements of
domestic law and within the prescribed time-limits (see Ankerl v.
Switzerland, 23 October 1996, § 34, Reports 1996-V).
- It
has to be noted that the applicant did not in any way raise the
complaint under Article 6 § 1 of the Convention before the
domestic authorities, even in substance.
- It
follows that this complaint must be rejected for failure to exhaust
domestic remedies, pursuant to Article 35 §§ 1 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant did not seek an award for pecuniary damage.
- In
respect of non-pecuniary damage, he merely sought the lifting of the
alleged ban on his programme.
- The
Government contended that in their observations of 7 March 2005 they
had provided sufficient evidence that no such ban existed.
- The
Court does not consider it necessary to ascertain the truth of the
applicant’s allegation that the ban on the programme is still
in place. It reiterates that, except where violations result from a
systemic situation, a consideration that cannot apply in the instant
case (see Broniowski v. Poland [GC], no. 31443/96, §§
188-94, ECHR 2004 V), the respondent State remains free, subject
to monitoring by the Committee of Ministers of the Council of Europe,
to choose the means by which it will discharge its legal obligation
under Article 46 of the Convention, provided that such means are
compatible with the conclusions set out in the Court’s judgment
(see Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR
2006-II).
In
other words, the Court cannot request the respondent State to lift
the ban on the sale of the report in issue, assuming that it is still
in place. Furthermore, the Court considers that the non-pecuniary
damage sustained by the applicant as a result of the decisions
upholding the complaints is sufficiently made good by the finding of
a violation of Article 10 of the Convention.
B. Costs and expenses
- The
applicant sought 2,000 Swiss francs (CHF) for the costs incurred. He
also made a claim in respect of seventy-four hours of work performed
by his lawyer and twenty-seven hours of work by the lawyer’s
staff.
- The
Government were persuaded that the applicant had not satisfied the
requirement to submit itemised particulars of his claims, together
with the relevant supporting documents. Accordingly, they argued, his
claims should be dismissed out of hand on the basis of Rule 60 §§
2 and 3 of the Rules of Court. In any event, the Government urged the
Court not to award the opposing party a sum exceeding CHF 5,000 as
reimbursement of costs and expenses.
- The
Court reiterates that where it finds a violation of the Convention it
may award applicants the costs and expenses they have incurred before
the national courts for the prevention or redress of the violation
(see Zimmermann and Steiner v. Switzerland, 13 July 1983, §
36, Series A no. 66, and Hertel, cited above, § 63).
It must also be shown that the costs were actually and necessarily
incurred and that they are reasonable as to quantum (see Bottazzi
v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V, and
Linnekogel v. Switzerland, no. 43874/98, § 49, 1 March
2005).
- In
the instant case, the Court considers that regard should be had to
the fact that the applicant’s complaints were partly declared
inadmissible (see Olsson v. Sweden (no. 2), 27 November 1992,
§ 113, Series A no. 250, and Linnekogel, cited
above, § 50).
- In
the light of the evidence before it and the criteria established in
its case-law, the Court, ruling on an equitable basis, awards the
applicant an aggregate sum of 3,500 euros.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 10
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500 (three thousand
five hundred euros) in respect of costs and expenses, plus any tax
that may be chargeable, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in French, and notified in writing on 21 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan
M. Zupančič
Registrar President
