14
GRA STIFTUNG GEGEN RASSISMUS UND
ANTISEMITISMUS v. SWITZERLAND JUDGMENT
2. The Court’s assessment
(a) Whether there was an interference
44. It is not in dispute between the parties that the domestic courts’
finding against the applicant organisation constituted an interference with its
right to freedom of expression. Such interference will breach the
Convention if it fails to satisfy the criteria set out in the second paragraph of
Article 10. The Court must therefore determine whether the interference
was “prescribed by law”, pursued one or more of the legitimate aims listed
in that paragraph and was “necessary in a democratic society” in order to
achieve the aim sought.
(b) Whether it was prescribed by law
45. The applicant argued that Article 28 of the Swiss Civil Code had
lacked foreseeability in view of its general lack of unspecific wording.
According to the Government, the impugned measures had a sufficient legal
basis in Swiss law.
46. The Court accepts that the interference in the present case was based
on Article 28 of the Swiss Civil Code (see paragraph 14 above) and that that
provision was accessible. The parties’ views, however, diverge on its
foreseeability. The Court must thus examine whether the provisions in
question fulfill the foreseeability requirements.
47. A norm cannot be regarded as a “law” unless it is formulated with
sufficient precision to enable individuals to regulate their conduct: they
must be able – if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given
action may entail. Those consequences need not be foreseeable with
absolute certainty: experience shows this to be unattainable. Again, whilst
certainty is highly desirable, it may entail excessive rigidity and the law
must be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser extent, are
vague and whose interpretation and application are a question of practice
(see Karácsony and Others v. Hungary [GC], no. 42461/13, § 124,
ECHR 2016 (extracts), and Delfi AS v. Estonia [GC], no. 64569/09, § 121,
ECHR 2015).
48. Turning to the present case, the Court finds no ambiguity in the
content of the provisions of domestic law relied on by the national courts.
As the Government submitted, the said provision has been in force since
1985 and the Federal Supreme Court has developed ample jurisprudence in
relation to it. What is more, Article 28a of the Civil Code enumerates the
possible measures that a court can take if it finds that there has been an
unlawful infringement of an individual’s personality rights. While it is
primarily for the national authorities, notably the courts, to interpret and
apply domestic law (see, among other authorities, Centro Europa 7 S.r.l.
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