Resolution CM/ ResDH ( 2016) 240 Execution of the judgment of the European Court of Human Rights Borer against Switzerland

Application No.

Case

Judgment of

Final on

22493/06

BORER

10/06/2010

10/09/2010

(Adopted by the Committee of Ministers on 14 September 2016 at the 1264 th meeting of the Ministers ’ Deputies)

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 in order to give effect to the judgment, and noting that no award of just satisfaction was made by the Court in the present case (see details in 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 ( 2016) 240

Information on the measures taken to comply with the judgment in the case of Borer against Switzerland

Introductory case summary

This case concerns the applicant ’ s unlawful deprivation of liberty between 6 January and 28 April 2006 after having served his prison sentence and while awaiting the final outcome in proceedings replacing psychotherapeutic measures with preventive detention (violation of Article 5, paragraph 1). The European Court found that there was no sufficient legal basis, as there were no such provisions in the cantonal procedural code of Bale-Ville, nor could the case-law by the Federal Court serve as a sufficient legal basis.

I. Individual measures

The arbitrary detention of the applicant as found by the Court ended on 28 April 2006, and thus the violation at issue ceased at that time.

No just satisfaction has been awarded by the European Court as the applicant did not claim any pecuniary or non-pecuniary damages and did not submit any evidence for his alleged costs and expenses.

In these circumstances, the Swiss authorities consider that no individual measures are necessary in the present case.

II. General measures

Since the facts of this case have occurred, a comprehensive reform of the criminal procedural law took place in Switzerland. There are no longer any cantonal procedural codes for criminal matters. Instead a national code was adopted to unify the procedural provisions for the entire territory. The new Federal Criminal Procedure Code of 5 October 2007 entered into force on 1 January 2011. Its chapter 3 sections 4 to 8 (Articles 220-240) provides a comprehensive legal basis for pre-trial detention ( Untersuchungshaft / détention provisoire ) and detention during trial ( Sicherheitshaft / détention pour des motifs de sûreté ), including an appeal procedure. The kind of detention at issue in the present case is nowadays covered by the provisions relating to detention during trial ( Sicherheitshaft / détention pour des motifs de sûreté ). Consequently, Swiss law today provides for a sufficient legal basis to cover situations similar to the applicant ’ s in the present case.

Furthermore, the European Court ’ s judgment was transmitted on 15 June 2010 to the Federal Court and to other authorities directly concerned. A summary was published in the Quarterly Report on the ECHR case-law 2/2010 and disseminated to all cantonal and federal authorities. This report was also published on the Internet site of the Federal Office of Justice (https://www.bj.admin.ch) in three languages (French, German and Italian).

III. Conclusions of the respondent State

The government considers that no individual measures are required and that the general measures taken will prevent other similar violations and that Switzerland has therefore complied with its obligations under Article 46, paragraph 1, of the Convention.