Resolution ResDH (2004)17

concerning the judgment of the European Court of Human Rights of 5 November 2002 (final on 5 February 2003) in the case of Müller against Switzerland

(Adopted by the Committee of Ministers on 22 April 2004 at the 879th 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 Müller case delivered on 5 November 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. 41202/98) against Switzerland, lodged with the European Commission of Human Rights on 2 April 1998 under former Article 25 of the Co n vention by Mr Josef Müller , a Swiss national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints relating to the excessive length of certain proceedings concerning civil rights and obligations before the Federal Assessment Commission and the Federal Court;

Whereas in its judgment of 5 November 2002 the Court:

- held unanimously that there had been a violation of Article 6, paragraph 1 of the Convention;

- held by six votes to one that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

- held unanimously that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 2 000 euros, to be converted into the national currency at the rate applicable at the date of the payment, in respect of non-pecuniary damage and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;

- dismissed unanimously the remainder of 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 5 November 2002, having regard to Switzerland’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 drew the Committee’s attention to the fact that, on account of the specific circumstances of the case, new similar violations of the Convention could be avoided for the future by informing the authorities concerned of the requirements of the Convention, and that it has provided information, which appears in the appendix to this resolution, concerning the measures adopted;

Having satisfied itself that on 17 April 2003, within the time-limit set, and subsequently on 3 June 2003, the government of the respondent state sent the a p plicant money orders in the defendant state’s national currency, of amounts corresponding to the sum provided for in the judgment of 5 November 2002; having noted that the applicant rejected both of them; having noted that, in the light of this situation, the Swiss government put the sum in question at the applicant’s disposal at the departments of the Federal Office of Justice and informed the applicant about it by a letter, of which the applicant acknowledged receipt; considering that, consequently, the respondent state has fulfilled its obligations concerning the payment of the sum provided for in the judgment of 5 November 2002;

Having noted that the applicant submitted several requests to the Committee of Ministers, seeking additional sums to these allocated by the Court (on different grounds), a hearing before the Committee of Ministers, or the use of Article 52 of the Convention ; considering these measures as being ill-founded as regards the execution of the Court’s judgment;

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

Appendix to Resolution ResDH (2004)17

Information provided by the Government of Switzerland during the examination of the Müller case

by the Committee of Ministers

Concerning general measures, the European Court’s judgment was disseminated on 6 November 2002 to the Federal Assessment Commission for the 10th district and on 7 November 2002 to the Federal Court. It has also been published in the journal Jurisprudence des autorités administratives de la Confédération Nr. 66/IV (2002) and may be consulted on the following Internet site: http://www.vpb.admin.ch/franz/doc/67/67.139.html . The judgment was also mentioned, inter alia , in the report of the Federal Council ( Conseil Fédéral ) concerning the activities of Switzerland at the Council of Europe in 2002, that was published in booklet Nr. 4/2004 of the Feuille fédérale ( http://www.admin.ch/ch/f/ff/2003/413.pdf ).

Concerning individual measures, the European Court’s judgment was forwarded to the applicant on 4 March 2003, so that he could lodge a request for revision of the Federal Court’s judgment of 17 September 1997. In fact, Mr. Müller lodged such an appeal on 3 January 2003, and it was rejected by a judgment of 22 January 2003.

Concerning the payment of just satisfaction, the documents submitted to the Committee of Ministers testify to the fact that the amount corresponding to the sum provided for in the judgment of 5 November 2002 reached the applicant, in money order form, within the time limit set by the Court; this money order having been refused, a second money order was sent the applicant. Thus, the latter’s arguments (who refused twice to take possession of the amount in question), according to which the payment was late, the amount incorrect and the address incorrect, are ineffective. Afterwards, the sum in question was put at the applicant’s disposal at the departments of the Federal Office of Justice, the applicant having been duly informed of this situation by letter of 25 June 2003, for which he acknowledged receipt on 1 July 2003.

The Swiss Government considers that, in these circumstances, it has met its obligations under Article 46, paragraph 1 of the Convention and that this case can be closed.