Final Resolution ResDH(2004)57

concerning the judgment of the European Court of Human Rights

of 26 September 1997

in the case of R.M.D. against Switzerland

(Adopted by the Committee of Ministers on 12th October 2004

at the 897th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the R.M.D. case delivered on 26 September 1997 and transmitted the same day to the Committee of Ministers under former Article 54;

Recalling that the case originated in an application (No. 19800/92) against Switzerland, lodged with the European Commission of Human Rights on 26 March 1992 under former Article 25 of the Convention by Mr R.M.D., a Swiss national, and that the Commission declared admissible the complaint that the applicant could not obtain a review of the lawfulness of his detention pending trial because he was repeatedly transferred from one canton to another, so that the courts of the transferring canton no longer had jurisdiction to decide the lawfulness of his detention;

Recalling that the case was brought before the Court by the Commission and the applicant, under Protocol No. 9, on 4 July and 29 July 1996 respectively;

Whereas in its judgment of 26 September 1996 the Court, unanimously:

- joined the government's preliminary objection to the merits, and dismissed it after considering the merits;

- held that there had been a violation of Article 5, paragraph 4, of the Convention;

-  held that the government of the respondent state was to pay the applicant, within three months, 5 000 Swiss francs in respect of non-pecuniary damage and 15 000 Swiss francs in respect of costs and expenses and that simple interest at an annual rate of 5% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the claim for just satisfaction;

Having regard to Interim Resolution DH (99) 678, adopted by the Committee of Ministers on 8 October 1999 at its 680th meeting during which the Committee indicated, in the light of information given by the government of the respondent state, that it has provisionally exercised its functions under former Article 54 of the Convention;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11, these Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 26 September 1997, having regard to Switzerland's obligation under former Article 53 of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the Appendix to this Resolution;

Having satisfied itself that on 2 December 1997, within the time-limit set, the government of the respondent state paid the applicant the sums provided for in the judgment of 26 September 1997,

Declares, after having examined the information supplied by the Government of Switzerland, that it has exercised its functions under former Article 54 of the Convention in this case.

Appendix to Final Resolution ResDH(2004)57

Information provided by the Government of Switzerland

during the examination of the R.M.D. case

by the Committee of Ministers

The Government of Switzerland recalled that the European Convention on Human Rights and the judgments of the European Court of Human Rights have direct effect in Swiss law (see among others Resolutions DH (94) 77 in the case of F. against Switzerland and DH (2000) 122 in the case of Hertel against Switzerland). Thus, cantonal Courts will provide, as both the Convention and the Court's judgment require, a full and effective examination of each application lodged with them challenging the lawfulness of an individual's detention on remand, when the person concerned is transferred to another canton before the end of the proceedings (not least on account of the respect owed by the receiving canton's courts to the decisions of the courts of the canton of origin). The Federal Court, as final instance of appeal, ensures compliance with this requirement of Article 5, paragraph 4, of the Convention.

In order to ensure the direct application of the present judgment, it has been published in the journal Jurisprudence des autorités administratives de la Confédération (JAAC, 1997, No. 102) and sent to the Federal Court, to cantonal departments of justice and to cantonal courts. In addition, the report of the Conseil fédéral on the activities of Switzerland within the Council of Europe in 1997 (Feuille fédérale 1998, p.505 ss., p.511) mentions the judgment.

Furthermore, in 2002 the Federal Department of Justice consulted the cantons in order to determine whether similar cases had occurred since the judgment of the European Court and it was found that no new, similar or identical case had occurred.

In the light of the above, the Government of Switzerland considers that there is no risk that the violation found in the present case will recur and that it has thus met its obligations under former Article 54 of the Convention.