Resolution CM/ ResDH (2019)319 Execution of the judgment of the European Court of Human Rights Glor against Switzerland

(Adopted by the Committee of Ministers on 5 December 2019 at the 1362 nd meeting of the Ministers ’ Deputies)

Application No.

Case

Judgment of

Final on

13444/04

GLOR

30/04/2009

06/11/2009

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the information provided by the government indicating the measures adopted to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see Appendix);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH ( 2019)319

Information about the measures to comply with the judgment

in the Glor case against Switzerland

Case summary

The case concerns the discrimination against the applicant on the ground of his disability on account of being required to pay a tax for exemption from military service from which he had been excused on medical grounds, although he wished to perform his military service (violation of Article 14, in combination with Article 8). The Court noted that the Swiss legislation did not provide for an exemption from this tax for persons who, like the applicant, were below the 40 % disability threshold and who have modest incomes. Neither did the Swiss legislation provide for appropriate forms of military or civil service for those who find themselves in a similar situation like the applicant.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Paid on

Glor , No. 13444/04

-

-

EUR 3 650

EUR 3 650

07/12/2009

b) Other individual measures

The applicant did not seek any award from the Court, for pecuniary damage or non-pecuniary damage. By letter of 15 July 2010 to the Federal Department of Defence, the applicant ’ s father requested the reimbursement of the tax in question. By letter of 24 July 2010, the competent authorities responded that this would require a formal revision of the Federal Court ’ s decision which was at the origin of the violation. The Swiss authorities indicated that according to the applicable legislation, a request for revision can be submitted to the Federal Court for a violation of the Convention, at the latest 90 days after the judgment of the European Court has become final. However, no such a request was submitted by the applicant within the deadline. Therefore, no further individual measure is possible.

II. General measures

The Swiss authorities submitted that following this judgment of the Court, the administrative practice was changed with immediate effect in the following manner: if called-up persons deemed unfit for military service and subject to the exemption tax express their wish to perform their service (military or civil), their files are transmitted to the Federal Department of Defence, Civil Protection and Sport (DDPS) to re-examine the aptitude of these persons, taking also into account possibilities for special forms of service, adapted to the needs of these persons.

Two years after the judgment of the Court was given, the Swiss authorities were able to provide a positive assessment, demonstrating that the administrative practice had indeed changed: by April 2011, the authorities registered a total of 55 requests for “personal” military service. Of these: 13 requests were withdrawn; 3 persons were declared fit to perform military service; 3 persons were declared fit for service in civil protection; 4 persons were exempted from the exemption tax due to their worsening state of health; 13 requests were still pending while another 12 requests had been received but were not yet “formally” pending; and lastly, 7 requests had been temporarily “suspended” because the persons in question were not fit to perform military service but did not fulfil the conditions to be exempted from the exemption tax as well. However, in view of the planned introduction of a new type of aptitude for military service, they could qualify for such service in the future and were thus asked to complement their requests accordingly.

In November 2012, the Federal Council approved the revision of the Ordinance of 24 November 2004 on medical evaluation of aptitude for military service (, VMBM, RS 511.12), resulting also in the revision of three other Ordinances. These changes entered into force on 1 January 2013 and were aimed at the consolidation of those already adopted in practice after the European Court ’ s judgment.

Henceforth, persons willing to perform military service who until now were declared unfit, from a medical point of view, to perform military or civil service, but whose ground for inaptitude was not sufficient to exempt them from paying the tax, can now be declared “Fit for military service in specific functions only, with conditions” by a special commission, provided they fulfil the psychological and physical requirements of military service.

Furthermore, the Swiss authorities consider that the relevant authorities will, according to their usual practice, give full effect to the judgment of the Court in this case. For these purposes, the judgment of the Court was also disseminated to the Federal Court and to the authorities directly concerned, as well as published in the quarterly Report on the jurisprudence of the ECHR 2/2009 in the three official languages. The Swiss authorities indicated that by April 2011, 6 judgments and decisions had been delivered by federal or cantonal authorities specifically referring to the judgment of the European Court in the present case.

III. Conclusions of the respondent State

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention in this case.