Resolution ResDH (2003)154

concerning the ju dgment of the European Court of Human Rights of 28 June 2001 (final on 28 September 2001) in the case of F.R. against Switzerland

(Adopted by the Committee of Ministers on 20 October 2003 at the 854th 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 F.R. case delivered on 28 June 2001 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. 37292/97) against Switzerland, lodged with the European Commission of Human Rights on 31 July 1997 under former Article 25 of the Co n vention by Mr F.R. , a Swiss national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaint related to a breach of the equality of arms in that the Federal Insurance Court in its judgment of 10 June 1997 had not considered a statement of his, that in these proceedings certain witnesses had not been heard and that he himself had not been properly heard;

Whereas in its judgment of 28 June 2001 the Court unanimously:

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

- held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 3 103,95 Swiss francs in respect of costs and expenses and that simple interest at an annual rate of 5% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed 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 28 June 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 23 October 2001, within the time-limit set, the government of the respondent state had paid the a p plicant the sum provided for in the judgment of 28 June 2001,

Declares, after having taken note of 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)154

Information provided by the Government of Switzerland during the examination of the F.R. case by the Committee of Ministers

As regards individual measures, the European Court of Human Rights’ judgment was forwarded to the applicant on 22 October 2001, enabling the latter to seek a review of the Federal Insurance Court’s judgment of 10 June 1997.

Concerning general measures, Section 110 of the Federal Judiciary Act of 16 December 1943, which sets out the rules governing exchanges of submissions following the lodging of appeals with the Swiss Federal Court, provides that the Federal Court may seek observations from the authority that took the decision in question. The act also allows a second exchange of submissions, enabling, inter alia , the appellant to set out his views on the observations submitted by the court concerned.

The Federal Court’s case-law has clarified the scope and conditions of application of this section of the act, taking account of the case-law of the Strasbourg organs concerning Article 6, paragraph 1, of the Convention.

Moreover, the judgment of the European Court was transmitted to the Federal Insurance Court on 29 June 2001, to the Courts-Martial Appeal Court and to the Federal Government Departments on 11 July 2001 and to the Cantonal Justice Departments on 11-12 July 2001 for the attention of the cantonal courts.  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.html .  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.

The Government of Switzerland believes that these measures will prevent any future occurrence of violations similar to that found in the present case and that Switzerland has therefore satisfied its obligations under Article 46 of the Convention.