Resolution CM/ ResDH (2011)302 [1]

Execution of the judgment s of the European Court of Human Rights

3 cases against Switzerland

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 “t he Convention” and “the Court”) [2] ,

Having regard to the judgments listed below, transmitted by the Court to the Committee once they had become final;

Case name (App. No.)

Judgment of

Final on

1Mengesha Kimfe (24404/05)

29/07/2010

29/10/2010

2Agraw (3295/06)

29/07/2010

29/10/2010

3Jusic (4691/06)

02/12/2010

02/03/2011

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute each of the judgments listed in the table above;

Having , in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention , examined the action report for each case provided by the government (see appendices) ;

Having noted that t he respondent state paid the a p plicant the just satisfaction , as provided in the judgment s;

DECLARES, that it has exe r cised its functions under Article 46, parag raph 2, of the Convention in the s e case s and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (20 11 ) 302

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

Mengesha Kimfe against Switzerland

Mengesha Kimfe against Switzerland

(Application No. 24404/05, judgment of 29 July 2010, final on 29 October 2010)

Action report by the Swiss Government

Translation

Introductory case summary

Violation of the right to family life of the applicant (rejected asylum-seeker from Ethiopia who was formally prevented from living together with her husband, also rejected asylum-seeker from Ethiopia) for more than five years, based on the refusal by the authorities to permit them changing from their canton to their husbands’ canton, a restriction which was deemed by the European Court to be not necessary in a democratic society (violation of Article 8).

A. On the individual level:

The applicant’s request for family reunion was granted on 1 July 2008, when she was issued with a residence permit in the Canton of Vaud on that ground (§ 31 of the judgment).

Informing of the Federal Administrative Court and of other directly concerned authorities (Federal Office for Migration, Canton of Vaud).

(done on 2 August 2010)

Payment of the just satisfaction.

(done on 19 November 2010)

Publication in the quarterly Report on the jurisprudence of the ECHR 3/2010 and dissemination of the summary of the judgment to all cantons and federal authorities in the three official languages (F/G/I):

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q3-f.pdf

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q3-i.pdf

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q3-d.pdf

B. On the general level:

Following the judgment of Mengesha Kimfe against Switzerland , the Federal Office for Migration changed its administrative practice. Henceforth, it will authorise a change of canton for those spouses whose case was definitely closed in the asylum procedure, in order to make it possible for them to live together. Amongst the conditions for authorisation is, in particular, the impossibility of the implementation of the removal order during a prolonged period of time and a minimal spirit of co-operation from the concerned persons.

Furthermore, the Swiss government assumes that the domestic authorities and courts will, as usual, give full effect to the said judgment (see the judgment of the Federal Court no. 8_C268/2010, consid . 6.2, delivered on 6 January 2011).

Conclusions of the respondent state:

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

Appendix t o Resolution CM/ ResDH (20 11 ) 302

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

Agraw against Switzerland

Agraw against Switzerland

(Application No. 3295/06, judgment of 29 July 2010, final on 29 October 2010)

Action report by the Swiss Government

Translation

Introductory case summary

Violation of the right to family life of the applicant (rejected asylum-seeker from Ethiopia who was formally prevented from living together with her husband, also rejected asylum-seeker from Ethiopia) for more than five years, based on the refusal by the authorities to permit them changing from their canton to their husbands’ canton, a restriction which was deemed by the European Court to be not necessary in a democratic society (violation of Article 8).

A. On the individual level:

The applicant’s request for family reunion was granted on 1 July 2008, when she was issued with a residence permit in the Canton of Vaud on that ground (§ 31 of the judgment).

Informing of the Federal Administrative Court and of other directly concerned authorities (Federal Office for Migration, Canton of Vaud).

(done on 2 August 2010)

Payment of the just satisfaction.

(done on 19 November 2010)

Publication in the quarterly Report on the jurisprudence of the ECHR 3/2010 and dissemination of the summary of the judgment to all cantons and federal authorities in the three official languages (F/G/I):

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q3-f.pdf

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q3-i.pdf

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q3-d.pdf

B. On the general level:

Following the judgment of Mengesha Kimfe against Switzerland , the Federal Office for Migration changed its administrative practice. Henceforth, it will authorise a change of canton for those spouses whose case was definitely closed in the asylum procedure, in order to make it possible for them to live together. Amongst the conditions for authorisation is, in particular, the impossibility of the implementation of the removal order during a prolonged period of time and a minimal spirit of co ‑ operation from the concerned persons.

Furthermore, the Swiss government assumes that the domestic authorities and courts will, as usual, give full effect to the said judgment (see the judgment of the Federal Court no. 8_C268/2010, consid . 6.2, delivered on 6 January 2011).

Conclusions of the respondent state:

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

Appendix to Resolution CM/ ResDH (20 11 ) 302

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

Jusic against Switzerland

Jusic against Switzerland

(Application No. 4691/06, judgment of 2 October 2010, final on 2 March 2011)

Action report by the Swiss Government

Translation

Introductory case summary

Unlawful detention of the applicant, a rejected asylum-seeker from Bosnia & Herzegovina, for 22 days (from 03-25/08/2005) in the Canton of Vaud with a view to his deportation, because the national authorities did not respect the criteria of Art. 13b para . 1 lit. c of the former federal law on stay and residence of foreigners, as there were no concrete indications that the applicant would avoid the return (violation of Article 5, paragraph 1).

A. On the individual level:

Informing of the Federal Court and of other directly concerned authorities.

(done on 2 December 2010)

Payment of the just satisfaction.

(done on 14 April 2011)

Publication in the quarterly Report on the jurisprudence of the ECHR 4/2010 and dissemination of the summary of the judgment to all cantons and federal authorities in the three official languages (F/G/I):

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q4-d.pdf

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q4-d.pdf

http://www.bj.admin.ch/content/dam/data/staat_buerger/menschenrechte/eurokonvention/ber-egmr-2010q4-i.pdf

B. On the general level:

The Swiss government assumes that the domestic authorities and courts will, as usual, give full effect to the said judgment. Thus no other measure is envisaged.

This notwithstanding, the Swiss governments stresses that the provisions of the relevant domestic legislation were amended with the entry into force, on 1st January 2008, of the federal law of 16 December 2005 on foreigners ( LEtr ). According to Article 74, al. 1 lit. b of the LEtr , the competent cantonal authority can order a foreigner not to leave the territory to which he was allocated or not to enter a specific area when

"the foreigner was issued a removal or expulsion order which entered into force and concrete elements give rise to doubts that he will not leave Switzerland within the prescribed deadline or he did not respect the deadline issued to him to leave the territory."

If the foreigner does not respect such an injunction, the cantonal authority can order his detention during the preparation of the decision on his stay (art. 75, al. 1 lit. b of the LEtr ) or in order to ensure the implementation of the removal (art. 76, al. 1 lit. b of the LEtr ).

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 by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.