Resolution CM/ ResDH (2009)95 [1]

Execution of the judgments of the European Court of Human Rights

Ressegatti and Kessler against Switzerland

( Ressegatti , application No. 17671/02, judgment of 13 July 2006, final on 13 October 2006

Kessler, application No. 10577/04, judgment of 26 July 2007, final on 26 October 2007)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the infringement of the principle of equality of arms in that the applicants had not had an opportunity to have knowledge of and comment on the observations submitted by the opposing party (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 judgments;

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 plicants the just satisfaction provided in the judgments (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 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

- 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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2009)95

Information about the measures to comply with the judgments in the cases of

Ressegatti and Kessler against Switzerland

Introductory case summary

These cases concern the violation of the applicants ’ right to a fair trial on account of the failure to maintain equality of arms (violation of Article 6§1). In 2001 in civil proceedings ( Ressegatti case) and in 2003 in criminal proceedings (Kessler case), the applicants had had no opportunity to have knowledge of or comment on the observations submitted by the opposing party.

Recalling its own case-law on the subject, the European Court considered that, even where these observations had little impact on the judgment, in order to guarantee litigants ’ confidence in the workings of justice the parties had to have the opportunity to express their views on every document in the file (§ 32 of the Ressegatti case and § 30 of the Kessler case).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Ressegatti (17671/02)

-

-

2 500 euros

2 500 euros

Paid on 5/12/2006

Kessler (10577/04)

-

-

1 500 euros

1 500 euros

Paid on 30/11/2007

b) Individual measures

1) Ressegatti case : the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. As regards to the measures which could be taken at national level to erase the consequences of the violation found, it is worth noting that re-opening the civil proceedings at issue does not appear to be an appropriate measure in this case. 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. Moreover, it does not seem that the violation found by the Court had a decisive impact on the outcome of the proceedings (§ 30 of the Court ’ s judgment).

In these circumstances, taking into account in particular the principle of legal certainty, no individual measure appears to be required in this case.

2) Kessler case: the applicant did not ask for any pecuniary or non-pecuniary damages before the European Court . As far as the criminal proceedings at issue are concerned, the applicant could ask for revision of the domestic judgment according to the Federal Law on the Federal Court of 17 June 2005, entered into force on 1 January 2007. This law permits revision of Federal Court judgments following a judgment of the European Court finding of a violation of the Convention. The applicant did not make use of this possibility. In these circumstances, no individual measure appears to be required in this case.

II. General measures

Certain measures to facilitate the direct application by Swiss courts of the principles affirmed by the European Court on fairness of proceedings and, in particular equality of arms, have been already adopted, particularly in the context of the Contardi case, judgment of 12/07/2005, and Spang , judgment of 11/10/2005, examination of which was closed by Resolution CM/ ResDH (2007)132. Furthermore, in two judgments of 2 March 2004 (judgments 5P.446/2003/rov and 5P.18/2004/rov), the Federal Court explicitly acknowledged the breach of the right to be fairly heard in the meaning of Article 6§1 of the Convention in situations in which, as in the cases at issue, a court failed to communicate in good time the observations submitted by the opposing party.

The European Court ’ s judgments have been transmitted to the competent courts – which give direct effect to the Convention, so that they may take it into account in their future case-law. The Kessler judgment has been summarised and published in the Annual Report of the Federal Council on the activities of Switzerland in the Council of Europe in 2007. This report was published on the Internet site of the Ministry of Foreign Affairs ( http://www.eda.admin.ch/eda/de/ho m e/recen t /media.html ), on 23 May 2008, then in the Feuille fédérale (official publication of the Federal Chancellery) No. 23 of 10 June 2008.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent other 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 30 September 2009 at the 1065 th meeting of the Ministers’ Deputies