10
GRA STIFTUNG GEGEN RASSISMUS UND
ANTISEMITISMUS v. SWITZERLAND JUDGMENT
authorities, Vučković and Others v. Serbia (preliminary objection) [GC],
nos. 17153/11 and 29 others, § 72, 25 March 2014, and Gherghina
v. Romania (dec.) [GC], no. 42219/07, §§ 84-87, 9 July 2015).
26. It is not necessary for the Convention right to be explicitly raised in
domestic proceedings provided that the complaint is raised “at least in
substance” (see Fressoz and Roire v. France [GC], no. 29183/95, § 39,
ECHR 1999-I, and Azinas v. Cyprus [GC], no. 56679/00, § 38,
ECHR 2004-III). If the applicant has not relied on the provisions of the
Convention, he or she must have raised arguments to the same or like effect
on the basis of domestic law, in order to have given the national courts the
opportunity to redress the alleged breach in the first place
(see Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010, and
Karapanagiotou and Others v. Greece, no. 1571/08, § 29,
28 October 2010).
27. In the present case, the applicant organisation’s principal argument
before the Federal Supreme Court was that the publication of a text which
had put B.K.’s statements in the category of “verbal racism” had been
wrongly classified by the second-instance court as an infringement of his
personality rights. The Federal Supreme Court, for its part, acknowledged
that the applicant had relied on matters relating to freedom of the press and
reviewed the case from the aspect of freedom of expression. It further
emphasised that the rights to freedom of expression and freedom of the
press had to be taken into consideration when interpreting Article 28 of the
Swiss Civil Code, which was relied on in the case before it.
28. In those circumstances, the Court is satisfied that through the
arguments it raised before the Federal Supreme Court, the applicant
organisation did complain, albeit only implicitly, about its right to freedom
of expression. In doing so, it raised, at least in substance, a complaint under
Article 10 of the Convention before the Federal Supreme Court and the
court examined that complaint. It follows that the applicant provided the
national authorities with the opportunity which is in principle intended to be
afforded to Contracting States by Article 35 § 1 of the Convention, namely
of putting right the violations alleged against them (see Muršić v. Croatia
[GC], no. 7334/13, § 72, ECHR 2016). The Government’s objection
concerning a failure to exhaust domestic remedies must therefore be
dismissed.
29. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
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