resolution DH ( ) 128

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 16 DECEMBER 1997 IN THE CASE OF CAMENZIND AGAINST SWITZERLAND

(Adopted by the Committee of Ministers on 19 February 1999 at the 659th 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 Camenzind case delivered on 16 December 1997 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 21353/93) against Switzerland, lodged with the European Commission of Human Rights on 2 October 1992 under Article 25 of the Co n vention by Mr Bruno Camenzind , a Swiss national, and that the Commission declared admissible the applicant's complaint that the search of his house carried out in connection with administrative criminal proceedings against him and the lack of an effective remedy before a national authority infringed Articles 8 and 13 of the Convention;

Recalling that the case was brought before the Court by the Commission on 28 October 1996 and by the Government of the Swiss Confederation on 14 January 1997;

Whereas in its judgment of 16 December 1997 the Court:

- held, by eight votes to one, that there had been no violation of Article 8 of the Convention;

- dismissed, unanimously, the government's preliminary objection concerning the fact that the Commission had examined of its own motion the complaint under Article 13, taken together with Article 8 of the Convention;

- held, unanimously, that there had been a violation of Article 13 taken together with Article 8 of the Convention;

- held, unanimously, that the judgment constituted in itself sufficient just satisfaction in respect of the alleged non-pecuniary damage;

- held, unanimously, that the Government of the respondent State was to pay the applicant, within three months, 8 000 Swiss francs for costs and expenses, less 9 184 French francs to be converted into Swiss francs at the rate applicable on the date delivery of the present judgment and that simple interest at an annual rate of 5% should be payable from the expiry of the above-mentioned period until settlement;

- dismissed, unanimously, the remainder of the applicant's 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 16 December 1997, 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 January 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 16 December 1997,

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

Appendix to Resolution DH (99) 128

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

by the Committee of Ministers

The government notes that, in conformity with a well-established practice, the present judgment was brought to the attention of the competent authorities, in particular the Federal Court and the Federal Communication Office, by circular letters explaining its content, and it was published in the JAAC (jurisprudence of the administrative authorities of the Confederation). Moreover, the Federal Council's report on the activities of Switzerland at the Council of Europe also mentioned the Court's judgment.

The government is of the opinion that the Indictment Division of the Federal Court will not fail, given the direct effect enjoyed by the Convention and the case law of the European Court of Human Rights, to interpret the national law in conformity with the Court's judgment, notably as regards the requirement of a present interest and practice to contest the legality and justification on the merits of an investigative measure. Moreover, it should be noted that a person affected by a coercive measure (such as a house search) ordered within the framework of administrative criminal proceedings, can request, within ten days of being notified of the order of the authorities in criminal proceedings, a preliminary ruling on the legality of the said measure (Sections 21 and 72 of the Federal Administrative Criminal Law Act; see paragraph 24 of the Camenzind Judgment).

The Government of Switzerland is of the opinion that these measures will prevent new violations similar to the one found in the present case and that Switzerland has therefore complied with its obligations under Article 53 of the Convention.