Resolution CM/ ResDH (2011)269 [1]

Execution of the judgment of the European Court of Human Rights

Ziegler against Switzerland

(Application No. 33499/96, judgment of 21 February 2002, final on 21 May 2002)

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicants ’ right to a fair hearing in that they had not having been given the opportunity to comment on the submissions of the lower court and of the opposing party in proceedings before the Federal Court (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate:

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

- of general measures, preventing similar violations;

Recalling that new issues relating to the aspect of a fair hearing before the Federal Court are being examined by the Committee of Ministers in the context of more recent judgments;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)269

Information about the measures to comply with the judgment in the case of

Ziegler against Switzerland

Introductory case summary

In 1994 the applicants announced their intention to construct an underground garage. The neighbours complained, arguing that certain prescribed boundary distances between their properties had not been respected. Their objection was dismissed in first instance and on appeal. In the judgment of the Cantonal Court seized on appeal, the latter noted the applicants ’ commitment not to make any amendment on a strip of fifty centimetres of length starting from the border separating their properties. However, the Cantonal Court ordered the applicants to pay costs and expenses (in the amount of 11 450,50 Swiss francs), stating that the applicants ’ plans had been incomplete, even incorrect, and that the terms used were vague which incited the appellants to retain their objection. The Cantonal Court found that the uncertainties, which arose due to the applicants ’ behaviour of bad faith, were in fact at the roots of the two proceedings. The applicants filed a public law appeal with the Federal Court, which asked the Cantonal Court and the neighbours (the applicants ’ opponents) for observations. The Federal Court communicated the different observations gathered to the applicants ’ lawyer but refused them the possibility to respond. It subsequently dismissed their public law appeal.

The European Court found a violation of the applicants ’ right to a fair hearing on account of not having been given the opportunity to comment on the submissions of the lower court and of the opposing party in the proceedings before the Federal Court (Article 6, paragraph 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

4 500 Swiss francs

4 500 Swiss francs

Paid on 23/02/2002

b) Individual measures

As regards to the measures which could be taken at national level to ease the consequences of the violation found, it is worth noting that the re-opening of the civil proceedings at issue does not appear to be an appropriate measure in this case. First, these proceedings opposed the applicants to a third party of good faith and their possible re-opening could prejudice that third party ’ s vested rights. Secondly, it should be noted that the applicants ’ claim before the Federal Court concerned mainly the fact that they had been ordered to pay court expenses which, in their view, were disproportionate since the Cantonal Court rejected the appellants ’ claim. The European Court held that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage suffered by the applicants. As regards pecuniary damages, the applicants did not submit any claim to this effect.

In view of the above, no further individual measure appears necessary.

II. General measures

The Federal Court changed its case-law in 2005: when a court informs a party of the observations of the opposing side, that party needs to react if it wants to submit its own comments to said observations. If it does not react, the court can assume that the party has renounced its right to reply (see the judgment of the Federal Court of 22 November 2005, ATF 132 I 42, considerations 3.3.3; see also § 20 of the judgment of the European Court in the case of Schaller- Bossert against Switzerland, application No. 41718/05). Subsequent judgments confirmed this jurisprudence (see e.g. ATF 133 I 99; ATF 133 I 100).

The judgment of the European Court was published in the Decisions of administrative authorities of the Confederation (No. 66/IV (2002)) and sent out to the authorities directly concerned.

New issues relating to the aspect of a fair hearing before the Federal Court are being examined by the Committee of Ministers in the context of two more recent judgments ( Elles and others, application No. 12573/06; and Schaller- Bossert , application No. 41718/05).

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, and 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 the present case.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies