Resolution CM/ ResDH (2009)14 [1]

Execution of the judgment of the European Court of Human Rights

Wettstein against Switzerland

(Application No. 33958/96, judgment of 21 December 2000, final on 21 March 2001)

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 an infringement of the applicant ’ s right to a hearing before an impartial tribunal in that two part-time alternate judges from the Administrative Tribunal of the Canton of Zurich before which the applicant brought a dispute had been involved before, as advocates in other proceedings brought against the applicant (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 Switzerland ’ s 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)  and considering the decision taken at the 798 th meeting of the Ministers ’ Deputies (24 June 2002), 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 (2009)14

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

Wettstein against Switzerland

Introductory case summary

The case concerns a violation of the applicant ’ s right to a hearing before an impartial tribunal in that two part-time alternate judges from the Administrative Tribunal of the Canton of Zurich before which the applicant brought a dispute had been involved before, as advocates in other proceedings brought against the applicant (violation of Article 6§1).

The applicant ’ s public-law appeal before the Federal Court against the decision of the Administrative Tribunal of the Canton of Zurich was dismissed on 29 April 1996.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

9 000 CHF

9 000 CHF

Paid on 07/05/2001

b) Individual measures

The Swiss authorities conveyed the European Court ’ s judgment to the applicant on 2 April 2001.

On 29 June 2001, the applicant lodged a request for revision under the terms of Article 139a of the former Judicial Organisation Act (present Article 122 of the Federal Court Act of 17 June 2005).

On 22 October 2001, the Federal Court approved the applicant ’ s request for revision, admitted his appeal against its decision of 29 April 1996 and remitted his case to an administrative tribunal of which the composition satisfied Article 6§1 of the Convention and national law.

II. General measures

Article 34 of the 1959 Administrative Justice Act (( Verwaltungsrechtspflegegesetz ) of the Canton of Zurich was amended in 1997, i.e. before the European Court gave judgment in this case. It now provides as follows:

“1. Full-time membership of the Administrative Tribunal is compatible neither with the exercise of any other full-time professional activity nor with the professional representation of third parties before judicial or administrative bodies.

2. Full-time membership of the Administrative Tribunal is not compatible with the professional representation of third parties before the Administrative Tribunal.”

In addition, the European Court ’ s judgment was published in the journal Jurisprudence des autorités administratives de la Confédération , volume 65/IV(2001) ; it also appears in the report on the activities of Switzerland at the Council of Europe Feuille fédérale dated 26 February 2002, Volume No. 8/2002, pages 1554 et seq.

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 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies