Resolution CM/ ResDH (2010) 114 [1]

Execution of the judgment of the European Court of Human Rights

Jäggi against Switzerland

(Application No. 58757/00, judgment of 13 July 2006, final on 13 October 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 execut ion 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 breach of the applicant ’ s right to respect for his private life due to the failure by the domestic courts to allow him to obtain DNA analyse from the remains of his alleged father to establish his paternity with certainty (violation of article 8) (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 by the Court in its judgments, 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 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 (2010)114

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

Jäggi against Switzerland

Introductory case summary

The case concerns a violation of the right of the applicant, born in 1939, to respect for his private life due to the Swiss courts ’ refusal to authorise him to obtain DNA analyse from the remains of his alleged father to establish his paternity with certainty (violation of Article 8).

A paternity action against his alleged father, A.H., brought on behalf of the applicant shortly before his birth by a state-appointed guardian was dismissed at first instance in 1948. The applicant, throughout his life, tried to obtain reliable information as to whether A.H. was his father. During his lifetime A.H. always refused to undergo tests to establish his paternity. In 1997, the applicant, paying the fees, renewed the lease for A.H. ’ s tomb until 2016. In 1999, he unsuccessfully sought the revision of the 1948 judgment, requesting a DNA test on the remains of A.H.

The European Court stated that an individual ’ s interest in discovering his parentage did not disappear with age and that the protection of legal certainty alone was no sufficient ground to deprive the applicant of his right to discover his parentage. Furthermore, in opposing the DNA test, A.H. ’ s family did not invoke any religious or philosophical reasons against this relatively unintrusive measure nor would such a test constitute an interference with the right to private life of the deceased within the meaning of Article 8. Moreover, the right to rest in peace enjoyed temporary protection as without the applicant ’ s extension of the lease, the body of A.H. would already have been exhumed in 1997.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

4 299 EUR

4 299 EUR

Paid on 5/12/2006

b) Individual measures

The European Court held that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

In January 2007 the applicant lodged an application for revision with the Federal Court, seeking first to quash the 1999 domestic decisions by which he was refused a DNA test on the remains of his alleged father and secondly the authorisation to proceed with the same test at his own expense. On 30/07/2007, the Federal Court admitted the application and quashed its own previous decision of 1999. However it excluded the possibility for the applicant to invoke the European Court ’ s judgment directly to obtain from the Federal Court itself the authorisation to proceed with the DNA test, because this fell within the competence of a first-instance court.

Subsequently, the applicant asked the Geneva first-instance court for authorisation to proceed with the DNA test. On 12/01/2009, this court authorised him to order a DNA test on the body of his alleged father, with a view to proving whether or not he was his ascendant. Subsequently, the test was carried out and, in September 2009, the applicant was informed of its results confirming that A.H. was his father.

Consequently, no other individual measure appears necessary.

II. General measures

In July 2006 the European Court ’ s judgment was sent out to the authorities directly concerned and was brought to the attention of the Cantons via a circular of November 2006. Furthermore, it was published in Verwaltungspraxis der Bundesbehörden (Digest of Confederal Administrative Case-law, VPB 70.116, available via http:// w ww.vpb.a d min.ch/ d eutsch/doc/70/70.1 16.html and was mentioned in the Federal Council ’ s annual report on the activities of Switzerland in the Council of Europe in 2006. The judgment has also been commented (inter alia: Regina E. Aebi-Müller , EGMR-Entscheid Jäggi c. Suisse: Ein Meilenstein zum Recht auf Kenntnis der eigenen Abstammung, Jusletter 02/10/2006, Rz . 8 ).

Furthermore, the Swiss Federal Court, in a judgment delivered on 28/02/2008 concerning the protection of identity and the right of children of age to know their ancestry (ATF 134 III 241), referred to the Jäggi judgment. It is also presented as a reference judgment ( Leiturteil ) in the Collection of the Federal Court ’ s judgments.

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 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 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies