TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): recognised the distinction between religious and political speech, a distinction which was correctly relied on by the chamber in the TV vest case when it declined to apply the reasoning in Murphy to a ban on political advertising. The government makes great play
AP1 (Applicant): of the fact that in the domestic courts the applicant accepted that a ban on political advertising may be justified at election times. It goes on to say, if you accept it is justified
AP1 (Applicant): at election times, it is really just a matter of detail that the ban is extended to all times because you are recognising the special nature of broadcasting and the importance of its regulation. But that does not follow. It is right, and we accept, that the integrity
AP1 (Applicant): of the democratic process may require special protection, particularly at time of elections.
AP1 (Applicant): For example, the United Kingdom and many other countries place special restrictions on election expenditure in the promotion of the candidacy of someone at an election. The expenditure
AP1 (Applicant): that can be made on their campaign is limited by rules of statute. That is a perfectly proper
AP1 (Applicant): protection. But similar restrictions are not placed on expenditure beyond election times.
AP1 (Applicant): Campaigns outside the time of elections in the United Kingdom are outside the broadcast area completely unregulated. In the same way, if restrictions are placed as may be proper,
AP1 (Applicant): if restrictions are placed on political advertising during the time of an election, it does not follow that that justifies a ban on political advertising at all times for all purposes.
AP1 (Applicant): The ban is grossly over-inclusive. The United Kingdom makes great play of its concerns about
AP1 (Applicant): the difficulties in establishing and enforcing an alternative regulatory framework. Alternative
AP1 (Applicant): regulatory frameworks have been devised in a number of other Council of Europe states.
AP1 (Applicant): It is not suggested that the terrible results that the United Kingdom foresees for the removal of the ban in the United Kingdom have resulted in those states. What is relied on is a floodgates
AP1 (Applicant): argument which involves the spectre of rich interest groups seizing control of the political agenda by means of political advertising. That involves generalising from the very specific
AP1 (Applicant): experiences of the United States to the very different position in the United Kingdom and in other European states. These floodgates arguments are not on any analysis convincing,
AP1 (Applicant): and the fears that the United Kingdom relies on are overblown. The United Kingdom is not
AP1 (Applicant): the United States, and a relaxation of a proportionate form on the existing ban, particularly in relation to social advocacy groups, would not faithfully undermine the democratic process.
AP1 (Applicant): The ban, as I have said already, in its current form favours the political establishment.
AP1 (Applicant): Mr Chamberlain mentioned various bodies which had considered the ban and had decided it was the only way forward. They were part of the existing political process, and they were
AP1 (Applicant): not. The position is very different when it comes to social advocacy groups and NGOs.
AP1 (Applicant): As I have already said, groups such as Amnesty International and the RSPCA, who campaign on very well-known issues, supported the applicant in this case. The measure, we say, is really
AP1 (Applicant): aimed at preserving the political status quo, which is not a proper form of justification under Article 10. Can I just say something very briefly about the VGT and TV vest cases?
AP1 (Applicant): In these cases, chambers of the court held and confirmed that a total ban on political advertising is not necessarily a democratic society. There were some crucial points of
AP1 (Applicant): similarity between those cases and this one. First of all, in those cases, the respondent
AP1 (Applicant): government sought to justify a blanket ban in order to protect the public against powerful financial groups, exactly the same basis that the UK government advances in this case. Those
AP1 (Applicant): arguments were rejected in the two cases I mentioned. Secondly, as in the present case,
AP1 (Applicant): it was not said that the advertisements in question were offensive or lowered the quality of political debate, as in this case. And then, as in this case, the advertisers were
AP1 (Applicant): not powerful financial groups. The United Kingdom's attempt to distinguish those cases,
AP1 (Applicant): to say that they have no application, is misconceived. They are directly applicable in this case.
AP1 (Applicant): The reasoning is correct, and it should be followed. There is nothing said by the United
AP1 (Applicant): Kingdom which warrants departure by the Grand Chamber from those decisions. They represent
AP1 (Applicant): the correct analysis and application of the legal principles, and it's in the interests of both certainty and the development of the court's jurisprudence to follow them. The
AP1 (Applicant): court should dismiss the objections to those cases and reaffirm the decisions in VGT and TVVest. There is no doubt, Madam President, Members of the Court, that the applicants'
AP1 (Applicant): campaigns in relation to the treatment of animals, and specifically the treatment of primates in this case, contribute to debates of general interest. The applicant should
AP1 (Applicant): not be prevented from using the most effective campaigning tools which are available to it.
AP1 (Applicant): The democratic process is not best protected by a blanket ban. It is best protected by
AP1 (Applicant): a focused and proportionate set of measures which balance the interests of all and promote, rather than restrict, debate in the general interest. For those reasons, and for those
AP1 (Applicant): which are set out in our memorial, we invite the court to declare that the application is admissible and to find that there has been a breach of Article 10 of the Convention in this case.
Françoise Tulkens (JudgeP): Thank you very much, Mr. Tomlinson.
Françoise Tulkens (JudgeP): Now I would like to know and to invite the judge of the Grand Chamber to put any questions they may have to the parties.
Françoise Tulkens (JudgeP): So the floor is open to the judges.
Françoise Tulkens (JudgeP): No questions?
Françoise Tulkens (JudgeP): Everything is clear?
Françoise Tulkens (JudgeP): So if there is no question, just wait a little bit.
Françoise Tulkens (JudgeP): OK, well, if there is no question, I think we can immediately proceed to the reply.
Françoise Tulkens (JudgeP): So I will give the floor first to Mr. Chamberlain
Françoise Tulkens (JudgeP): for the reply, and we have 10 minutes for that.
Françoise Tulkens (JudgeP): So I call Mr. Chamberlain.
GR1 (Government): Madam President, members of the court, there are a number of points which were raised by Mr. Tomlinson in his speech, to which I
GR1 (Government): would like to respond.
GR1 (Government): The first was his suggestion that the United Kingdom government has not established that broadcast media are more potent and pervasive than other media.
GR1 (Government): In particular, he referred to the prominence in recent years of the internet.
GR1 (Government): Well, the answer to that is fourfold.
GR1 (Government): First, the unique potency and pervasiveness of the broadcast media have been recognized by this court on at least two occasions, in particular in the Yersilk case at paragraph 31, and in the Murphy case at paragraph 69.
GR1 (Government): In both of those cases, this court recognized that the broadcast media's potency and pervasiveness were a reason why special restrictions may be applicable to those media which are not applicable to other media.
GR1 (Government): The second response refers back to the evidence of the chief executive of the applicant organization herself.
GR1 (Government): She filed witness evidence in the domestic proceedings, and her witness evidence was to this effect.
GR1 (Government): She said, so far as we are concerned, the only effect of the ban is to prevent us from having access to what she called the most influential advertising option.
GR1 (Government): It is no accident that the applicant organization has brought this claim.
GR1 (Government): They want to have access to these particular media.
GR1 (Government): And the reason they want to have access to these media is because they recognize what this court has recognized, namely that these media have a special place in terms of their potency and pervasiveness.
GR1 (Government): And that is why Mr. Justice Ouseley in the divisional court
GR1 (Government): in the domestic proceedings in this case said that it was not really a matter of serious debate that broadcast media were more potent and pervasive than any other.
GR1 (Government): And that is why Lord Bingham, for a unanimous House of Lords, agreed.
GR1 (Government): The fourth point by way of response on potency and pervasiveness is this.
GR1 (Government): The applicant organization acknowledges that special restrictions may be applicable to broadcast media alone at election time.
GR1 (Government): Now, why is that?
GR1 (Government): It can only be because they recognize that these media, they're not suggesting for one moment that such restrictions may be applied to other media at election time.
GR1 (Government): And the reason for that is that they must recognize, they do recognize, that the broadcast media are special.
GR1 (Government): The second issue on which I need to reply concerns the cost of advertising in the broadcast media.
GR1 (Government): And Mr. Tomlinson suggested that there
GR1 (Government): was no evidence in these proceedings as to the relative cost of advertising in different media.
GR1 (Government): Well, first of all, there was, in fact, indicative evidence of the cost of TV advertising in the witness statement of Mr. Ramsay, which
GR1 (Government): was placed before the domestic courts in this case, and which is in the annexes to the United Kingdom's memorial.
GR1 (Government): Mr. Ramsay pointed out in paragraph 35 of his statement
GR1 (Government): that figures provided by the government's Central Office of Information state that the average production costs of a television commercial range between a quarter of a million pounds and half a million pounds, with more expensive advertisements costing up to two million pounds.
GR1 (Government): And that is just the production costs.
GR1 (Government): The cost of airtime is also very significant.
GR1 (Government): A peak time 30-second spot, for example, during a popular program such as Coronation Street, a soap opera, which is broadcast in the United Kingdom, can cost up to 85,000 pounds, although daytime spots can cost significantly less.
GR1 (Government): Now, in any event, as the domestic courts held, it doesn't really matter.
GR1 (Government): It's not an important part of the United Kingdom's case to say that the cost of advertising in the broadcast media is much higher than the cost in other media.
GR1 (Government): It is sufficient to note that the cost makes advertising in the broadcast media out of reach to many groups who wish to participate in the public debate.
GR1 (Government): And again, I would refer back to the evidence of Ms.
GR1 (Government): Creamer, the chief executive of the applicant organization, who said this.
GR1 (Government): She said, at the outset of any campaign, we tend to be in debate with powerful industries with huge financial advantages over us.
GR1 (Government): The advertising spending power of these industries in one day is more than the nonprofit sector can put together in a year.
GR1 (Government): That is the position as she was advancing it to the court.
GR1 (Government): And it is, in my submission, a correct analysis of the cost of advertising in this expensive medium.
GR1 (Government): The third point raised by Mr. Tomlinson
GR1 (Government): is that the ban, the PPA, in its current form was put in place by the political establishment and benefits the political establishment to the detriment of alternative voices in civil society, such as the applicant organization.
GR1 (Government): Well, there are several answers to that.
GR1 (Government): First, it's an extraordinary suggestion that the PPA benefits politicians as a class.
GR1 (Government): Experience in the United States and elsewhere shows that if political advertising in the broadcast media is unregulated, candidates and parties whose policies appeal to big business stand to benefit hugely.
GR1 (Government): Taking away this ban will not be to the detriment of politicians as a class.
GR1 (Government): It will be to the benefit of some politicians whose policies happen to benefit those with the deepest pockets.
GR1 (Government): Second, it's quite possible to establish a political party.
GR1 (Government): Even very small ones with very little prospect of returning any candidates in an election have in the past fielded enough candidates to qualify for free party political party election broadcasts.
GR1 (Government): Examples from recent years include parties such as the Pro-Life Alliance, the British National Party, the Scottish Socialist Party, the English Democrats.
GR1 (Government): None of these parties are ones which have succeeded in obtaining representation in the United Kingdom Parliament or who have any realistic prospect of doing so.
GR1 (Government): Yet they have all had party political and election broadcasts.
GR1 (Government): Third, and in any event, there is no evidence that the prohibition on political advertising has had any adverse impact on these alternative voices in civil society.
GR1 (Government): The United Kingdom has a thriving third sector, as it's known, and its NGOs are internationally known and respected.
GR1 (Government): Fourthly, the suggestion that's been put across by Mr. Tomlinson that the broadcast media in the United
GR1 (Government): Kingdom contains no discussion of controversial political issues is entirely misplaced.
GR1 (Government): There is, of course, on the broadcast media in the United Kingdom plenty of discussion of controversial issues, such as those relating to animal welfare.
GR1 (Government): And there is every opportunity for animal welfare groups to ventilate their views and for those views to be reported by the broadcast media.
GR1 (Government): The way it's done in the United Kingdom is that this is mediated through a broadcast media which has a statutory obligation of impartiality.
GR1 (Government): So cases that have been raised, not just in relation to the issues which the applicant organization itself is concerned about, but in relation to other issues, issues about the international situation in Syria, for example, are well reported in the broadcast media in the United Kingdom.
GR1 (Government): They are reported through a media which has obligations of impartiality.
GR1 (Government): And that is the method by which the United Kingdom ensures a proper respect for different viewpoints in its broadcast media.
Françoise Tulkens (JudgeP): Thank you very much, Mr. Chamberlain. Now, I call Mr. Tomlinson for the defendant.
AP1 (Applicant): Madam President, members of the court, thank you very much.
AP1 (Applicant): I'll be brief in my response.
AP1 (Applicant): The first point I make in response to Mr. Chamberlain
AP1 (Applicant): is this.
AP1 (Applicant): He says, and he said this at the outset of his address to the court, and he made the point on a number of occasions, that the power of the broadcast media means that in the interests of democracy, it requires some form of regulation.
AP1 (Applicant): We agree with that.
AP1 (Applicant): It is not and never has been the applicant's position that the alternative to the present position must be a wholly unregulated regime for political advertising.
AP1 (Applicant): Where we part company is on his next statement, which is that the present regime allows for a wide range of viewpoints.
AP1 (Applicant): Those were his words.
AP1 (Applicant): And they are not borne out by what, in fact, happens because there is an impartiality requirement.
AP1 (Applicant): But that does not necessarily mean that anybody who puts a viewpoint forward will have it reported at all.
AP1 (Applicant): He then says there are free party political broadcasts.
AP1 (Applicant): I've already made the point about that.
AP1 (Applicant): They apply only to parties who have a certain number of candidates.
AP1 (Applicant): But they don't apply at all to social advocacy groups.
AP1 (Applicant): And then he says, rather curiously, that the prohibition on political advertising, the third element, is part of the regime which encourages a wide range of viewpoints.
AP1 (Applicant): That is obviously wholly unsustainable.
AP1 (Applicant): The second point that he makes, and he made, again, a great play of, is that it is, I think his point was it was really beyond human devising.
AP1 (Applicant): It was impossible to work out a coherent regulatory system which wasn't a blanket prohibition.
AP1 (Applicant): We make two points in relation to that.
AP1 (Applicant): The first is that the difficulties he identifies are greatly exaggerated and overblown.
AP1 (Applicant): We see from the EPROS survey that we've attached to our memorial, and has been referred to on a number of occasions, that many different regimes exist which provide for coherent and appropriate regulation of political advertising.
AP1 (Applicant): But in any event, we make the point, and the point is made at paragraph 93 of our memorial, that as this grand chamber said in the case of Hearst and the United Kingdom, it is not for the court or the applicant to devise a new scheme if a scheme is found to be in breach of convention rights.
AP1 (Applicant): Perfectly properly, if this court declares that there is a violation of Article 10, it is a matter for the national authorities to devise a proper and appropriate way of dealing with that decision of the court, of implementing the court's judgment in accordance with local conditions.
AP1 (Applicant): That's perfectly proper and sensible.
AP1 (Applicant): So we say that that second point about practical difficulties is not a good one.
AP1 (Applicant): Thirdly, Mr. Chamberlain says, and I
AP1 (Applicant): think I noted his words, I hope I noted his words down correctly, it would be a very strong thing indeed for the court to say that the ban in this case was outside the margin of appreciation.
AP1 (Applicant): That he asked this grand chamber to say, well, because the United Kingdom authorities have considered the matter carefully, then the court should say we will accept that way of approaching things.
AP1 (Applicant): And because there's not a European consensus, we should therefore accept the way that the United Kingdom does things.
AP1 (Applicant): Now, that is not the correct approach.
AP1 (Applicant): And it's not the correct approach because he says, look at the strength and importance of the interests at stake.
AP1 (Applicant): He raises the specter of a removal of the advertising ban, destabilizing the political process, destabilizing democracy.
AP1 (Applicant): We say that that is completely overblown.
AP1 (Applicant): But it's also, we can turn it around and look at the importance of the interests at stake from the other side.
AP1 (Applicant): We are here talking about the very highest and most important form of political speech, the form that has the strongest protection under Article 10, political expression, debates on matters of general interest.
AP1 (Applicant): And we are talking about prior restraint.
AP1 (Applicant): Now, in that situation, it is not a very strong thing indeed for the chamber, the grand chamber, to take a different view from the United Kingdom.
AP1 (Applicant): On the contrary, it will be a very strong thing indeed for the chamber, the grand chamber, to defer to the United Kingdom's assessment without subjecting it to the strictest scrutiny.
AP1 (Applicant): And we say that the scrutiny that the chambers of this court subjected similar bans to in VGT and TVVest, and the approach that was taken in those two decisions is the one that the grand chamber should take in this case.
AP1 (Applicant): And it should declare that the prohibition is that the margin of appreciation does not help the United Kingdom, and declare that the prohibition, as it applies in the circumstances of this case, to an NGO engaged in proper, reasonable social advocacy, it's a breach of Article 10 to prevent it from doing that.
AP1 (Applicant): Madam President, I thank you.
Françoise Tulkens (JudgeP): So, we have now come to the end of the hearing.
Françoise Tulkens (JudgeP): I thank very much the parties for their interventions.
Françoise Tulkens (JudgeP): The court will now deliberate on the admissibility and merits.
Françoise Tulkens (JudgeP): The judgment will be delivered late, and the party, of course, will be informed of the date of the delivery.
Françoise Tulkens (JudgeP): So I declare the hearing closed, and I wish you all a very good day.
Päivi Hirvelä (JudgeP): Please be seated.
Päivi Hirvelä (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Nasr and Ghali versus Italy.
Päivi Hirvelä (JudgeP): The application was lodged with the court on 6th August 2009 under Article 34 of the Convention by two Egyptian nationals, Mr. Osama Mustafa Nasr and Mrs. Nabila Ghali.
Päivi Hirvelä (JudgeP): The application was allocated to the fourth section of the court pursuant to Rule 52, Paragraph 1 of the Rules of the Court.
Päivi Hirvelä (JudgeP): The application was communicated to the government on 22nd November 2011.
Päivi Hirvelä (JudgeP): The defending government are represented by their co-agents, Mrs. Accardo and Mr. Pellegrini,
Päivi Hirvelä (JudgeP): assisted by Mrs. Incutti, advisor,
Päivi Hirvelä (JudgeP): Mr. Giannuzzi, counsel, and by Mr. Di Taranto,
Päivi Hirvelä (JudgeP): expert of the Ministry of Justice.
Päivi Hirvelä (JudgeP): The applicants are represented by Mr. Bauccio, counsel,
Päivi Hirvelä (JudgeP): and assisted by Mr. Scambia and Mr. Favero, counsels.
Päivi Hirvelä (JudgeP): I welcome the representatives in the name of the court.
Päivi Hirvelä (JudgeP): In addition, I wish to welcome the visitors of the court.
Päivi Hirvelä (JudgeP): Having consulted the agent of the government and the representatives of the applicants, I have determined the order of addresses as follows.
Päivi Hirvelä (JudgeP): Mrs. Incutti and Mr. Giannuzzi for the government
Päivi Hirvelä (JudgeP): will speak first, and then Mr. Bauccio for the applicants.
Päivi Hirvelä (JudgeP): And I would explain that in addition to interpreting in the two official languages of the court, English and French, I have authorized the applicants representatives to plead in Italian.
Päivi Hirvelä (JudgeP): And then I call Mrs. Incutti.
GR1 (Government): Madam President, distinguished members of the court, ladies and gentlemen, before getting into the matters set by the questions posed by the court, which concern the merits of the application, this government wishes to reiterate its inadmissibility claim for non-exhaustion of domestic remedies.
GR1 (Government): This honorable court often states that the rule of exhaustion of domestic remedies is an expression of the principle of subsidiarity and an indispensable part of its functioning.
GR1 (Government): Well, if it is so, then the assessment of the respect of the rule under Article 35 should be considered of utmost importance and should be examined very closely, attentively, and strictly applied.
GR1 (Government): Now, in the present case, the non-exhaustion of domestic remedies by the applicants emerges per tabulas.
GR1 (Government): It cannot be easily disregarded that the application was lodged before this court on August 4th, 2009, while the first instance trial was still pending and mostly way before the rendering of the first instance decision by the judge of the criminal court of Milan on November 2009.
GR1 (Government): Thus, the application was lodged at the very beginning of this judicial history and was communicated to this government only in the year 2011.