Resolution CM/ ResDH (2011)270 [1]

Execution of the judgment of the European Court of Human Rights

Scavuzzo -Hager and others against Switzerland

(Application No. 41773/98, judgment of 7 February 2006, final on 7 May 2006)

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 failure to conduct an effective inquiry into the death of a member of the applicants ’ family following his arrest ( violation of Article 2, procedural aspect );

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Switzerland ’ s obligation under Article 46, paragraph 1, of the Convention 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 applicant 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;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised 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)270

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

Scavuzzo -Hager and others against Switzerland

Introductory case summary

In July 1994, P., a member of the applicants ’ family, died after having been arrested by two police officers.

In its judgment, the Court considered that it could be concluded neither that P. ’ s death had been caused by the use of force on the part of the police, nor that the police officers had failed to discharge their obligation to protect his life (no substantive violation of Article 2).

The Court, on the other hand, observed that the police officers who had arrested P. had never been questioned. Furthermore, the authorities discontinued the proceedings on the sole ground that the level of intoxication of P. would in any event have caused his death. The authorities also failed to question experts to determine whether the force used by the police officers, even though not lethal in itself, had nevertheless caused or at least hastened P. ’ s death. Regard being had to the fact that P. had lost consciousness at the very moment when the police officers were using force to restrain him, the investigation should have covered that question. In this connection, the precise method by which P. had been restrained was not established. Moreover, the prosecuting authorities failed to consider whether the police officers could or could not have been aware of the P ’ s vulnerability.

In view of the above, the Court held that there had been a procedural violation of Article 2 in that the Swiss authorities had not conducted an effective investigation into the circumstances of the death of the applicants ’ relative.

I. Payment of just satisfaction and individual measures

Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

12 000 EUR

9 500 EUR

21 500 EUR

Paid on 06/06/2006

Individual measures

The Court awarded the applicants just satisfaction in respect of the non-pecuniary damage sustained due to the lack of an effective investigation.

As regards the applicants ’ interest in knowing about the exact circumstances of the death of their relative, or even to claim compensation, the authorities indicated that the Federal Tribunal ’ s case-law of 2005 mentioned below (see “General measures”), concerning the possibility to request an effective and in-depth official investigation in case of substantiated allegations of ill-treatment by the police, could apply to this case. However, the applicants have not made any request for a new investigation.

Moreover, the authorities noted that potential criminal proceedings against the police officers would, today, have to be ruled out, as the facts at issue in this case are clearly time-barred. Furthermore, the conclusion of the medical experts according to which the death had not been caused by the use of force on the part of the police, was neither put into question by the Court, nor did the Court find that the police officers had failed to discharge their obligation to protect the life of the applicants ’ relative. With a view to these findings, it would not be justified in this case to question legal certainty, i.e. the statute of limitations of the present case under the criminal law.

II. General measures

The judgment of the European Court was sent out to the judicial and police directorates of the Cantons. Furthermore, the judgment was published in the Digest of Confederal Administrative Case-law , VPB 70.105.

The authorities also underlined that according to the Federal Court ’ s case-law, the Convention is part of the Swiss legal system and that thus it must be applied directly by all judicial, administrative and police authorities, both at federal and cantonal levels. They added that it is for these authorities to ensure that investigations in similar cases are effective within the meaning of the Convention.

Finally, the Swiss authorities have indicated that the Federal Tribunal had recognised the right of applicants who consider they have substantiated allegations of police ill-treatment, to request an effective and in-depth official investigation as defined in the Convention in which they must be sufficiently and effectively involved, before the judgment of the European Court . Such a right was explicitly incorporated into Swiss law by the judgment of 6 October 2005.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

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