Resolution ResDH(2000)122

concerning the judgment of the European Court of Human Rights of 25 August 1998 in the case of Hertel against Switzerland

(Adopted by the Committee of Ministers on 2 October 2000 at the 721 st 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 Hertel case delivered on 25 August 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 25181/94) against Switzerland, lodged with the European Commission of Human Rights on 13 September 1994 under former Article 25 of the Co n vention by Mr Hans Ulrich Hertel , a Swiss national, and that the Commission declared admissible the applicant's complaints that Articles 10, 8 and 6, paragraph 1, of the Convention had been breached on account of the fact that he had been prohibited from publishing his research results about the hazardous effects of microwave ovens on human health;

Recalling that the case was brought before the Court by the applicant on 29 May 1997 and thereafter by the Commission and the Government of the Switzerland on 3 June and 15 July 1997 respectively;

Whereas in its judgment of 25 August 1998 the Court:

- held, by six votes to three, that there had been a violation of Article 10 of the Convention;

- held, unanimously, that it was unnecessary to consider the complaints under Article 6, paragraph 1 and Article 8 of the Convention;

- held, by eight votes to one, that the Government of the respondent State was to pay the applicant, within three months, 40 000 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, unanimously, the remainder of the claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of former Art i cle 54 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 25 August 1998, having regard to Switzerland’s obligation under Article 53 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 20 October 1998, within the time-limit set, the Government of the respondent State paid the a p plicant the sum provided for in the judgment of 25 August 1998;

Having noted that the applicant has brought before the European Court of Human Rights a new application (No. 53440/99) concerning the restrictions still applicable after the retrial judgment ( arrêt en révision ) by the Federal Court of 2 March 1999 (see notably the appended information submitted by the Government) and that the Court remains competent to assess the compatibility with the Convention of such restrictions,

Considers that it is not necessary, in the circumstances of the present case, that the Committee of Ministers itself continue to examine this last issue, in the context of the present execution control procedure,

Declares, in the light of the above considerations and having taken note of the information supplied by the Government of the Switzerland, that it has exe r cised its functions under former Article 54 of the Convention in this case.

Appendix to Resolution ResDH(2000)122

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

by the Committee of Ministers

The Hertel judgment of 25 August 1998 was brought to the attention of the Federal Court and excerpts were published notably in the « Journal des tribunaux – Droit européen » (No. 52, October 1998, pages 188-190).

In order to erase the consequences of the violation found by the European Court of Human Rights, the applicant filed an application for retrial before the Swiss Federal Court in conformity with Article 139.a.1 of the Swiss Federal law on judicial organisation, providing for review of judicial proceedings in order to give effect to judgments from the Strasbourg Court. In its judgment of 2 March 1999, the Federal Court took note of the violation of the applicant’s freedom of expression found by the European Court of Human Rights and, accordingly, modified the challenged decision by clarifying its content and softening the scope of the restrictions imposed on Mr Hertel.

As a result, it has now been clarified that the restrictions to the applicant’s freedom to express himself on the harmful effects of microwave ovens only apply in case the applicant would address a large public, stating that the harmful effects of microwave ovens on human health are a scientifically proven fact without referring to the controversial nature of the issue. The Government of the Switzerland considers that the Federal Court judgment has remedied the violation of Article 10, as regards the applicant’s situation.

The Government also considers that these measures will prevent in the future the risk of new violations similar to the one found in this case and that Switzerland has thus fulfilled its obligations under Article 53 in this case.