CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 30 juin 2009

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page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s915B8526 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s76CF415B { page-break-before:always; clear:both } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }     GRAND CHAMBER             CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v.   SWITZERLAND (No. 2)   (Application no. 32772/02)                     JUDGMENT     STRASBOURG   30 June 2009       In the case of Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2), The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President ,   Christos Rozakis,   Françoise Tulkens,   Josep Casadevall,   Corneliu Bîrsan,   Anatoly Kovler,   Alvina Gyulumyan,   Ljiljana Mijović,   Egbert Myjer,   Dragoljub Popović,   Isabelle Berro-Lefèvre,   Päivi Hirvelä,   Giorgio Malinverni,   András Sajó,   Ledi Bianku,   Ann Power,   Mihai Poalelungi, judges , and Erik Fribergh, Registrar , Having deliberated in private on 9 July 2008 and on 27 May 2009, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 32772/02) 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 an association registered in Switzerland, Verein gegen Tierfabriken Schweiz (VgT) (“the applicant association”), on 25 July 2002. 2.     The applicant association was represented by Mr R.W. Rempfler, a lawyer practising in St. Gall. The Swiss Government (“the Government”) were represented by Mr F. Schürmann of the Federal Office of Justice. 3.     The applicant association alleged, in particular, that the continued prohibition on broadcasting a television commercial, after the Court had found a breach of its freedom of expression, constituted a fresh violation of this right under Article 10 of the Convention. 4.     The application was allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court), and subsequently to the Fifth Section. Within that Section, the Chamber that would consider the case (Article 27 §   1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     On 18 January 2005 the President of the Chamber decided to give notice of the application to the Government. It was also decided that the merits of the application should be examined at the same time as its admissibility (Article 29 § 3 of the Convention and Rule 54A). 6.     On 4 October 2007 the Chamber, composed of Snejana Botoucharova, Luzius Wildhaber, Karel Jungwiert, Volodymyr H. Butkevych, Margarita Tsatsa-Nikolovska, Javier Borrego Borrego and Renate Jaeger, judges, and Claudia Westerdiek, Section Registrar, delivered a judgment in which it unanimously declared inadmissible the complaint under Article 6, dismissed the Government’s preliminary objection of failure to exhaust domestic remedies in respect of the complaint under Article 10, joined to the merits the Government’s argument as to the application of Article 10 and, accordingly, declared admissible the complaint under that Article. The Chamber held by five votes to two that Article 10 of the Convention was applicable in the case and that there had been a violation of that Article. The dissenting opinion of Judge Jaeger joined by Judge Borrego Borrego was annexed to the judgment. 7.     On 19 December 2007 the Government requested under Article 43 of the Convention and Rule 73 that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted that request on 31 March 2008. 8.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 9.     The applicant and the Government each filed observations on the merits. 10.     In addition, third-party comments were received from the Czech Government, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 11.     A hearing took place in public in the Human Rights Building, Strasbourg, on 9 July 2008 (Rule 59 § 3). The President of the Grand Chamber granted leave to the president of the applicant association, Mr E. Kessler, to present the case on the association’s behalf under Rule 36 § 3.   There appeared before the Court: (a)     for the Government Mr   F. Schürmann , Head of the Human Rights and Council of     Europe Section, Federal Office of Justice, Federal     Department of Justice,   Agent , Mr   A. Scheidegger , Deputy Head of the Human Rights and     Council of Europe Section, Mr   F. Zeller, Legal Adviser to the Director, Federal Office of     Communication, Federal Department of Environment,     Transport, Energy and Communication, Ms   C. Ehrich , Legal Officer, Human Rights and Council of     Europe Section,   Advisers ; (b)     for the applicant association Mr   E. Kessler , President of the applicant association, Ms   C. Zeier Kopp , Deputy Director of the applicant     association,   Advisers .   The Court heard addresses by Mr Kessler and Mr Schürmann and their replies to questions from its members. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Application no. 24699/94 and the Court’s judgment of 28 June 2001 12.     The applicant association is dedicated to animal protection, campaigning in particular against animal experiments and battery farming. 13.     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 advertisement concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!” 14.     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. 15.     On 13 July 1994 the applicant association lodged an application with the European Commission of Human Rights under former Article 25 of the Convention. 16.     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). 17.     In a decision of 6 April 2000, the Court declared the application partly admissible. 18.     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 2001 ‑ VI). 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’s opinion, the authorities had not demonstrated in a “relevant and sufficient” manner why the grounds generally advanced in support of the prohibition of political advertising could also serve to justify the interference in the particular circumstances of the case (ibid., § 75). 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 the sum of 20,000 Swiss francs (CHF) (approximately 13,300 euros (EUR) today) for costs and expenses. However, it made no award to the applicant association for non-pecuniary damage. B.     Subsequent proceedings before the Swiss authorities 19.     On 31 October 2001 the applicant association again applied to Publisuisse SA for permission to broadcast 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. 20.     In a letter of 30 November 2001, Publisuisse SA refused the application. 21.     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 139(a) of the former Federal Judicature Act (see paragraph 28 below). The application was worded and substantiated as follows: Application for review “In the case of Verein gegen Tierfabriken Schweiz (VgT), 9546 Tuttwil, v. Swiss Radio and Television Company, Publisuisse SA and the Federal Department of Environment, Transport, Energy and Communication (DETEC) : I hereby request on behalf of VgT that the Federal Court’s judgment of 20 August 1997 be reviewed and that the administrative-law appeal of 18 June 1996 be allowed. Reasons : In its judgment of 28 June 2001, the European Court of Human Rights upheld an application challenging the Federal Court judgment of which I am seeking a review (see Annex 1). The judgment was served on 25 October 2001 (see Annex 2); this application for review has therefore been lodged in time. Yours faithfully ...” 22.     The Federal Department of Environment, Transport, Energy and Communication and the Swiss Radio and Television Company submitted in their respective observations of 10 January and 15 February 2002, which were duly transmitted to the applicant association, that the application to reopen the proceedings should be dismissed. 23.     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 sufficiently detailed 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 paragraph 29 below). It observed, in particular, that the applicant association had been unable to show that 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 fresh refusal by Publisuisse SA, the competent authority in such matters, to sign a new agreement to broadcast the commercial should have formed the subject of separate proceedings. The relevant passages of the judgment read as follows: “... 3.1     Section 140 of the Federal Judicature Act provides that an 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 is not enough simply to claim that the ground exists; it is also necessary to explain why, and to what extent, the operative provisions must be amended as a result (Elisabeth Escher, ‘Revision und Erläuterung’, note 8.28, in Geiser/Münch, Prozessieren vor Bundesgericht , 2nd ed., Basle 1998). 3.2     The application to reopen the proceedings in the instant case does not meet these formal requirements. The applicant association has sought the review of the Federal Court’s judgment without explaining the extent to which this is necessary following the European Court’s judgment of 28 June 2001. VgT evidently assumes that the Strasbourg Court’s decision against Switzerland in itself makes the reopening of the proceedings necessary, but that is not the case. The mere fact that the Court, ruling on an individual application, has found a violation of the Convention does not mean that the Federal Court judgment in issue must automatically be reviewed in accordance with domestic law (see judgment 2A.363/2001 of 6 November 2001 in the Boultif case, point 3a/cc; Martin Philip Wyss, ‘EMRK-Verletzung und bundesrechtliche Revision nach Art. 139a OG’, in recht 1999 , p. 100; Schürmann, op. cit., p. 100; Hottelier, op. cit., p. 749; BBl 1991 II 465, p. 529). Being a subsidiary remedy, reopening is justified only if it appears to remain necessary notwithstanding the compensation awarded by the European Court of Human Rights and constitutes the only means of obtaining redress (see Schürmann, op. cit., p. 102; Wyss, op. cit., p.   99). The application to reopen the proceedings must give at least a broad indication of how redress may be obtained only by this means (see judgment 2A.363/2001 of 6   November 2001 in the Boultif case, point 3b/cc). 3.3 ... Publisuisse SA evidently once again refused to conclude an advertising agreement with VgT, which appealed against the refusal to the Federal Office of Communication; the proceedings are still pending. By taking this action, VgT itself proves that it is not continuing to suffer any practical adverse effects that can only be redressed by reopening the proceedings. It does not claim that it still has an interest in having the original commercial broadcast; it is, moreover, unlikely that this is the case, since VgT’s primary objective is no longer (solely) to encourage a decline in meat consumption and to denounce the conditions in which animals are reared (which are also likely to have changed in the almost eight years since the commercial was intended to have been broadcast), but to publicise the Court’s finding of a violation of its freedom of expression. It is thus no longer the same commercial that is under discussion today. The consequences of the Convention violation committed at the time were redressed as a result of the judgment against Switzerland and the award of just satisfaction under Article 41 of the Convention; the new agreement which VgT now wishes to conclude must form the subject of separate proceedings. ... 4.2     In its judgment of 20 August 1997, the Federal Court held that VgT’s commercial was subject to the public-law prohibition on political advertising set forth in section 18(5) of the Federal Radio and Television Act and could provide the Swiss Radio and Television Company, or rather Publisuisse SA, with a valid reason for not concluding the advertising agreement. The European Court of Human Rights did not share this view and held that there was no justification in a democratic society for refusing to broadcast a commercial on the ground that it constituted political advertising, which was banned on television. The Court did not express an opinion on whether and to what extent Switzerland, by not ensuring that the commercial could be broadcast, had breached any positive obligations resulting from the extension of the Convention safeguards to relations between private entities (see paragraph 46 of the Court’s judgment). The subject of the Federal Court’s judgment was the finding by the authorities that VgT’s commercial could be considered ‘political’ within the meaning of the Radio and Television Act and that the refusal to broadcast it could be justified on this public-law ground alone. The judgment did not deal with the question whether the Swiss Radio and Television Company had boycotted VgT, whether the company dominated the advertising market and whether, on that account, it would have been under an obligation to conclude an advertising agreement. These (civil law) aspects of an obligation to contract must be addressed in the appropriate form of civil proceedings (concerning cartel law, competition law or the general law relating to personality rights) and not under the law governing trading licences. This argument, which Switzerland put forward, was not contested by the European Court. 4.3     In this connection, by enacting the relevant (civil) legislation and establishing judicial remedies to implement it, Switzerland has complied with its positive obligation under Article 10 of the Convention to ensure the appropriate realisation among private entities of the rights guaranteed by the Convention. The rules of competition and cartel law or the possibility of asserting a civil-law obligation to contract are intended to encourage a means of implementing fundamental rights that is fair and strikes a balance between the various interests at stake in the sphere of economic relations between private entities. VgT is free to use this legal remedy in seeking to have its commercial broadcast, provided that, contrary to what has been said above, it still has a real interest in the broadcast; in that eventuality, due regard will have to be had in the proceedings to its constitutional rights and the principles enshrined in Article 10 of the Convention (see Article 35 of the Federal Constitution). The judgment of the European Court of Human Rights does not conflict with this view; however, all that can be inferred from the judgment is that the classification of the commercial as ‘political advertising’ did not justify refusing to broadcast it, or that the broadcasting of the commercial by the Swiss Radio and Television Company, on the basis of Article   10 of the Convention, should not have had any consequences for the broadcaster under the law relating to trading licences. The Swiss Radio and Television Company rightly points out that the judgment cannot be construed as requiring it to broadcast the commercial in issue in breach of the existing legal rules (such as the provisions of the Federal Unfair Competition Act), since the European Court did not address the corresponding questions, limited itself to examining the issue of ‘political’ advertising and did not state any position on the Swiss Radio and Television Company’s ‘negative’ freedom of expression. Since the Court’s judgment simply finds that the prohibition of political advertising on television must not stand in the way of broadcasting the commercial, VgT must seek to have it broadcast through recourse to the civil courts and not through the reopening procedure, should the Swiss Radio and Television Company, or rather Publisuisse SA, still refuse to broadcast it (see Ulrike Preissler, Die Zulässigkeit ideeller Werbung im Fernsehen , dissertation, Bonn 1994, pp. 113 et seq.; Martin Dumeruth, ‘Rundfunkrecht’, in Koller/Müller/Rhinow/ Zimmerli (eds.), Schweizerisches Bundesverwaltungsrecht , Basle 1996, note 126; Rolf H. Weiss, ‘Rechtliche Grundlagen für Werbung und Sponsoring’, in SMI 1993, pp.   213 et seq., in particular p. 226, footnote 58). 4.4     The Swiss Radio and Television Company cannot be directly ordered to broadcast the commercial in issue, since the Federal Court has no power in public law to give such an order. The applicant association had requested the Federal Office of Communication to issue a declaratory order to the effect that, under Article 10 of the Convention, VgT was entitled to have its commercial broadcast (‘right to broadcast advertising’). The Federal Court acknowledged from a procedural point of view that a right to have such an order issued existed (section 25 of the Federal Administrative Procedure Act in conjunction with Article 13 of the Convention) but ruled in the instant case – wrongly in the European Court’s view – on the basis of section 18(5) of the Federal Radio and Television Act that there was no right of access to television for political advertising. If the Federal Court had decided in the same way as the European Court, it would have had to limit itself to finding that the Swiss Radio and Television Company had not been entitled to refuse to broadcast the commercial on the ground that it was political in nature, or rather that reliance on this ground for the refusal was contrary to Article 10 of the Convention. On the other hand, given the lack of legal basis, the Federal Court could not have ordered the Swiss Radio and Television Company to broadcast the commercial in the context of proceedings governed by broadcasting legislation (see Dumermuth, op. cit., note 491). VgT is now seeking such an order solely by way of the reopening procedure, but it cannot obtain it in relation to the decision to be reviewed. The Federal Court cannot make an order, following a judgment of the Strasbourg Court, that it was not empowered to make in the original proceedings (see judgment 2A.232/2000 of 2 March 2001 in the Amann case, point   3b/bb, published in EuGRZ 2001, p. 322). ...” 24.     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 commercial featuring the additional comment. C.     Resolution of the Committee of Ministers of the Council of Europe of 22 July 2003 25.     The Committee of Ministers of the Council of Europe, which had not been informed either by the applicant association or by the 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 § 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 § 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 no. 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 no. 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.” 26.     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. 27.     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. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Relevant domestic law and practice 28.     Sections 136 et seq. of the former Federal Judicature Act, which was in force until 31 December 2006, concerned, inter alia , the review of judgments of the Federal Court. Section 139(a) provided: Breach of the European Convention on Human Rights “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 decide on the application for a review even if cantonal law does not envisage such a ground for the reopening of proceedings.” 29.     Section 140 of the Act provided: Application for review “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.” 30.     Thus, on the basis of section 140, the Federal Court on 2 March 1999 partly revised one of its judgments after the Court had found a violation in Hertel v. Switzerland (25 August 1998, Reports of Judgments and Decisions 1998 ‑ VI). It held, in particular: “... 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 139(a) of the Federal Judicature Act is met ...” 31.     Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, reproduces the content of section 139(a) of the former Federal Judicature Act. It provides: Breach of the European Convention on Human Rights “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 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 Convention or its Protocols; (b)     compensation cannot remedy the effects of the violation; (c)     the review is necessary to remedy the effects of the violation.” 32.     In a judgment of 18 July 2008 the Federal Court granted an application to reopen the proceedings following the Court’s finding of a violation of Article 8 of the Convention in Emonet and Others v. Switzerland (no. 39051/03, 13 December 2007), and set aside its judgment of 28 May 2003. The relevant parts of the Federal Court’s judgment read as follows: “As to the law: 1.     By virtue of section 122(a) of the Federal Court Act, an application for review of a judgment of the Federal Court on account of a violation of the Convention may be submitted if the European Court, in a final judgment, has found a violation of the Convention or its Protocols. In such an event, the application for review must be lodged with the Federal Court no later than 90 days after the European Court’s judgment has become final within the meaning of Article 44 of the Convention (section 124(1)(c) of the Federal Court Act). Having been parties to the proceedings that resulted in the impugned judgment, the applicants have locus standi . The judgment became final on 13   March 2008; the application has therefore been lodged in time. The application also states the ground relied on for reopening the proceedings and the nature of the amendment of the judgment being sought; it should therefore be considered on the merits. The submission that the Confederation should be ordered to pay the applicants the sums awarded by the European Court in respect of non-pecuniary damage and costs and expenses cannot, however, be dealt with in the present review proceedings. Accordingly, it is inadmissible. 2.     The basis in section 122 of the Federal Court Act for reopening the proceedings is subject to several conditions. Thus, an individual application must have been upheld by the European Court in a final judgment finding a violation of a right guaranteed by the Convention (subsection (a)); compensation cannot remedy the effects of the violation (subsection   (b)); and the review must be necessary to remedy the effects of the violation (subsection (c)). The conditions laid down in this provision are similar to those which applied under the Federal Judicature Act (section 139(a)), with the result that, in principle, the case-law under the previous legislation retains its full force. 2.1     In the instant case the European Court found that the severing of the mother-child relationship following the child’s adoption by her mother’s partner constituted, in the particular circumstances of the case, unjustified interference with the applicants’ right to respect for family life and, on that account, a violation of Article 8 of the Convention. The European Court’s judgment has, moreover, been final since 13   March 2008 (section 122(a) of the Federal Court Act). Furthermore, it is clear that no award of compensation can afford redress for the loss of the mother-child relationship as a result of the adoption (section 122(b) of the Federal Court Act). The first two conditions in section 122 of the Federal Court Act are therefore satisfied. 2.2.     It remains to be ascertained whether a review of the Federal Court’s judgment is necessary to remedy the effects of the violation of Article 8 of the Convention (section   122(c) of the Federal Court Act). The mere fact that there has been a breach of the Convention does not mean that the decision referred to the European Court has to be reviewed. This follows from the very nature of the reopening procedure, which is an extraordinary remedy. Accordingly, if there is another ordinary remedy that could afford redress, that remedy should be used first. The answer to this question depends on the nature of the Convention violation that has been found. Where only material interests remain at stake, the proceedings cannot in principle be reopened. However, where the unlawful situation persists despite the European Court’s finding of a violation of the Convention, a review is possible. The proceedings are then reopened within the limits of the relevant ground (see, with reference to the Federal Judicature Act, judgment 2A.232/2000 of 2 March 2001, point 2b/bb, published in: Pra 2001 no. 92, p. 538, and the judgments cited; and, with reference to the Federal Court Act, Elisabeth Escher, in Basler Kommentar BGG , Basle 2008, note   6 on section 122; judgment 1F_1/2007 of 30 July 2007, point 3.2). The European Court held on this point that the annulment of the adoption for lack of consent would not be able to remedy the effects of adoption at the origin of the dispute. An action to that end could not, according to the European Court’s case-law, be regarded as an effective remedy on the basis of which a plea of inadmissibility could be raised against the applicants for failure to exhaust domestic remedies. The European Court also held that the adopter and the adopted person’s mother could not be required to marry in order to restore the adopted person’s relationship with her mother. In the Court’s view, it is not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wish to adopt. The concept of family under Article 8 of the Convention is, moreover, not confined to marriage-based relationships. Accordingly, unless the mother-daughter relationship is restored and an amendment to that effect is made to the civil-status register, it must be acknowledged that the unlawful situation will persist. Accordingly, the application for review should be allowed and the judgment of 28   May 2003 should be set aside. ...” B.     Relevant international law and practice 1.     Execution of the Court’s judgments 33.     On 19 January 2000, at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights : “The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’); Noting that under Article 46 of the Convention ... the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (‘the Court’) in any case to which they are parties and that the Committee of Ministers shall supervise its execution; Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention ( restitutio in integrum ); Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum , taking into account the means available under the national legal system; Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum ; I.     Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum ; II.     Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i)     the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii)     the judgment of the Court leads to the conclusion that (a)     the impugned domestic decision is on the merits contrary to the Convention, or (b)     the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of. Explanatory memorandum ... 8.     Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum . The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist. ...” 34.     Paragraph 35 of the Report by the Parliamentary Assembly of the Council of Europe on execution of judgments of the European Court of Human Rights (doc. 8808, 12 July 2000) reads as follows: “Since the Court does not tell States how to apply its decisions, they must consider how to do so themselves. The obligation to comply with judgments is an obligation to produce a specific result – to prevent further violations and repair the damage caused to the applicant by the violation. ...” 35.     On 10 May 2006, at the 964th meeting of the Ministers’ Deputies, the Committee of Ministers adopted Rules for the supervision of the execution of judgments and of the terms of friendly settlements: “ Rule 1 1.     The exercise of the powers of the Committee of Ministers under Article 46 §§ 2 to 5 and Article 39 § 4 of the European Convention on Human Rights is governed by the present Rules. ... Rule 6: Information to the Committee of Ministers on the execution of the judgment 1.     When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46 § 2 of the Convention, the Court has decided that there has been a violation of the Convention or its Protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46 § 1 of the Convention. 2.     When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46 § 2 of the Convention, the Committee of Ministers shall examine: (a)     whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and (b)