Resolution ResDH (2003)177

concerning the judgment of the European Court of Human Rights of 29 March 2001 in the case of D.N. against Switzerland

(Adopted by the Committee of Ministers on 6 January 2004 at the 863rd 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 final judgment of the European Court of Human Rights in the D.N. case delivered on 29 March 2001 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 27154/95) against Switzerland, lodged with the European Commission of Human Rights on 20 April 1995 under former Article 25 of the Co n vention by Ms D.N. , a Swiss national, and that the Commission declared admissible the complaint relating to the lack of impartiality of the Administrative Appeals Commission of the Canton of St. Gall, which in 1994 dismissed the applicant’s request for release from a psychiatric clinic; the juge rapporteur having been beforehand invited to prepare an opinion as a psychiatric expert;

Recalling that the case was brought before the Court by the Commission on 28 October 1999 and the government of the respondent state on 16 December 1999;

Whereas in its judgment of 29 March 2001 the Court:

- held, by twelve votes to five, that there had been a violation of Article 5, paragraph 4, of the Convention;

- held, unanimously, that the government of the respondent state was to pay the applicant, within three months, 3 000 Swiss francs in respect of non-pecuniary damage and 3 500 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, 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 29 March 2001, 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 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 7 May 2001, within the time-limit set, the government of the respondent state had paid the a p plicant the sums provided for in the judgment of 29 March 2001,

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 (2003)177

Information provided by the Government of Switzerland during the examination of the D.N. case

by the Committee of Ministers

Following the judgment of the European Court of Human Rights, the practice of the Administrative Appeals Commission of the Canton of St Gall has changed: the specialised judge will continue to carry out the interview of the person concerned, he will submit his findings to the Commission and he will participate in the hearing. However, he will no longer participate in the deliberations and the taking of the decision. The specialised judge can, thus, give his opinion from the beginning of the proceedings, as his function is clearly separate from that of the judge who takes the decision.

Moreover, the judgment of European Court has been disseminated to the cantonal departments of justice, to the Administrative Appeals Commission of the Canton of St Gall and to the Federal Court. It was published in the journal Jurisprudence des autorités administratives de la Confédération , No. 65/IV(2001) and may be consulted (in French) at the following website: http://www.vpb.admin.ch/franz/cont/heft/654som.htlm . The judgment was also mentioned, inter alia , in the Federal Council’s annual report on Swiss activities at the Council of Europe in 2001, which was published in the Feuille fédérale No. 8/2002.

Concerning individual measures, the Government of Switzerland informed the Committee of Ministers that the judgment was sent to the applicant in order to allow her to seek, if she wishes, a review of the Federal Court’s judgment of 3 April 1995.

The Government of Switzerland considers that, given the developments mentioned above, there no longer exists a risk of new violations similar to that found in the present case and, consequently, that Switzerland has satisfied its obligations under Article 46, paragraph 1, of the Convention.