INTERIM resolution DH (99) 678

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 26 September 1997 IN THE CASE OF R.M.D. AGAINST Switzerland

(Adopted by the Committee of Ministers on 8 October 1999 at the 680th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of 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 R.M.D. case delivered on 26 September 1997 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 19800/92) against Switzerland, lodged with the European Commission of Human Rights on 26 March 1992 under Article 25 of the Co n vention by Mr R.M.D. , a Swiss national, and that the Commission declared admissible the complaint that the applicant could not have a review of the lawfulness of his detention pending trial because he was successively transferred from one canton to another, so that the courts of the transferring canton no longer had jurisdiction to decide the lawfulness of his detention;

Recalling that the case was brought before the Court by the Commission and the applicant, under Protocol No. 9, on 4 July and 29 July 1996 respectively;

Whereas in its judgment of 26 September 1997 the Court unanimously:

- joined to the merits the government’s preliminary objection, and dismissed it after considering the merits;

- held, that there had been a violation of Article 5, paragraph 4, of the Convention;

- held, that the Government of the respondent State was to pay the applicant, within three months, 5 000 Swiss francs for non-pecuniary damage and 15 000 Swiss francs for costs and expenses; that simple interest at an annual rate of 5% should be payable from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of 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 26 September 1997, having regard to Switzerland’s obligation under Article 53 of the Conve n tion to abide by it;

Considering that High Contracting Parties are required to take the necessary measures to conform herewith, notably by preventing new violations of the Convention similar to those found in the Court's judgments ;

Whereas the Government of the respondent State provided the Committee of Ministers with information about the measures taken so far to this effect (this information appears in the appendix to this resolution);

Having satisfied itself that on 2 December 1997, within the time-limit set, the Government of the respondent State paid the a p plicant the sums provided for in the judgment of 26 September 1997;

Declares, after having taken note of the information supplied by the Government of Switzerland, that it has provisionally exe r cised its functions under Article 54 of the Convention in this case,

Decides to resume consideration of this case as far as general measures are concerned when the legislative reforms have been carried out or, at the latest, at one of its meetings in the autumn of 2001.

Appendix to Interim Resolution DH (99) 678

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

by the Committee of Ministers

The Government of Switzerland recalls that the European Convention on Human Rights and the judgments of the European Court of Human Rights have direct effect on Swiss law (see notably Resolution DH (94) 77 in the case of F. against Switzerland).  The Swiss courts will therefore, by basing themselves directly on the judgment in question, entitle detainees who are transferred from one canton to another pending trial to take proceedings by which the lawfulness of their detention is reviewed in accordance with Article 5, paragraph 4, of the Convention.

In order to ensure direct application of the present judgment, it has been published in the journal "Jurisprudence des autorités administratives de la Conféderation" (JAAC, 1997, No. 102) and sent to the Federal Court, the cantonal departments of justice and the cantonal courts.  In addition, the report of the Conseil fédéral on the activities of Switzerland within the Council of Europe mentions the judgment (the report is submitted to Parliament).

Furthermore, changes are being made to the relevant legal texts in the context of a global reform of criminal procedure.  The Federal Parliament has notably agreed to revise the provisions of the Federal Constitution concerning the organisation of the judiciary, court procedure and the administration of justice.  The aim of these reforms is to unify the rules of criminal procedure within the Confederation and notably to ensure that the legislation clearly provides for a possibility for all detainees, including those who are transferred from one canton to another, to have access to a court to review the lawfulness of their detention.  The group of experts working on the unification of the Code of Criminal Procedure has received a copy of the judgment to ensure that it is duly taken into account.

In the light of the above, the Government of Switzerland considers that there is no serious risk that the violation will recur.  It proposes that the Committee of Ministers resumes consideration of the implementation of the judgment when the legislative reforms have been carried out or, at the latest, at one of its meeting in autumn of 2001.