Resolution ResDH (2004)41

concerning the judgment of the European Court of Human Rights of 17 October 2002 (final on 17 January 2003) in the case of Stambuk against Germany

(Adopted by the Committee of Ministers on 20 July 2004 at the 891st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Stambuk case delivered on 17 October 2002 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 37928/97) against Germany, lodged with the European Commission of Human Rights on 30 August 1997 under former Article 25 of the Co n vention by Mr Miro Stambuk , a German national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaint that disciplinary punishment imposed on the applicant for having participated in a press article on his work violated his right to freedom of expression;

Whereas in its judgment of 17 October 2002 the Court unanimously:

- held that there had been a violation of Article 10 of the Convention;

- dismissed the applicant’s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 17 October 2002, having regard to Germany’s obligation under Article 46, paragraph 1, of the Conve n tion 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;

Declares, after having examined the information supplied by the Government of Germany, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2004)41

Information provided by the Government of Germany during the examination of the Stambuk case

by the Committee of Ministers

The Government recalls that the Land of Baden-Württemberg has amended the Baden-Württemberg Act on the Councils for the Medical Professions of 16 March 1995, with Article 1, paragraph 4, of a law dating from 25 February 2003, to allow for the possibility of reopening proceedings following a conviction. Under the amended Act a convicted person or the President of the Baden-Württemberg professional medical body may ask for the reopening of a case closed by a final judgment by referring to Article 359 of the Code of Criminal Procedure. The applicant has accordingly been informed of his right to request reopening of proceedings before the Disciplinary Appeals Court for Medical Practitioners ( Landesberufsgericht für Ärzte ).

To avoid similar violations of the Convention in the future, copies of the judgment of the European Court of Human Rights have been sent out to the Ministries of Health of the Länder together with a circular letter in which it is suggested in particular that the judgment should be further disseminated to the professional medical bodies and Labour Courts of the Länder . The Court’s judgment has moreover been published in the 2002 volume of Europäische Grundrechte Zeitschrift (pp. 589-593) and in No. 7 of Neue Juristische Wochenschrift 2003 (pp. 497-499).

The Government considers that, in view of the above developments and the fact that direct effect is given to judgments of the European Court by German courts, there no longer exists any risk of the repetition of the violation found in the present case and that Germany has thus fulfilled its obligations under Article 46 in this case both as regards general and individual measures.