INTERIM resolution DH (99) 110

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 29 August 1997 IN THE CASE OF A.P., M.P. and T.P. AGAINST Switzerland

(Adopted by the Committee of Ministers on 18 January 1999 at the 654th 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 A.P., M.P. and T.P. case delivered on 29 August 1997 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 19958/92) against Switzerland, lodged with the European Commission of Human Rights on 13 March 1992 under Article 25 of the Co n vention by Mrs A.P., Mr M.P. and Mr T.P. , Swiss nationals, and that the Commission declared admissible the complaints under Article 6, paragraphs 1, 2 and 3, that irrespective of any personal guilt, they had been convicted, as heirs, of an offence allegedly committed by a deceased person, and that they had not had a fair and public hearing by an independent and impartial tribunal established by law;

Recalling that the case was brought before the Court by the Commission on 28 May 1996;

Whereas in its judgment of 29 August 1997 the Court:

- held, by seven votes to two, that Article 6, paragraph 2, was applicable in the present case and had been violated;

- held, unanimously, that it was not necessary to consider the applicants' allegations of violations of Article 6, paragraphs 1 and 3, of the Convention;

- held, unanimously, that the respondent State was to pay the applicants, within three months, 7 000 Swiss francs in respect of costs and expenses incurred in the proceedings before the bodies of the Convention; that simple interest at an annual rate of 5% should be payable on that sum from the expiry of the above-mentioned three months until settlement;

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 29 August 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 and measures envisaged to prevent 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 31 October 1997, within the time-limit set, the government of the respondent State paid the a p plicants the sum provided for in the judgment of 29 August 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 its first meeting in 2001.

Appendix to Interim Resolution DH (99) 110

Information provided by the Government of Switzerland during the examination of the A.P., M.P. and T.P. case

by the Committee of Ministers

The judgment of the European Court of Human Rights in the case of A.P., M.P. and T.P. against Switzerland has been published and circulated to the cantonal authorities competent for tax matters.

By a judgment of 24 August 1998, the Federal Court, pursuant to Article 139 a of the Federal Act on the Judiciary, revised the judgment that had been censured by the European Court of Human Rights. Following this revision the cantonal tax authorities were obliged to reimburse the fine imposed on the applicants, with interests accruing to the sum.

Generally speaking, the Government of Switzerland recalls that the judgments of the European Court of Human Rights have direct effect in Swiss law (see Resolution DH (94) 77 in the case of F. against Switzerland and the cases cited therein). The domestic courts will therefore apply immediately the Court's judgment so that heirs will not be sanctioned for tax offences committed by a deceased person.

Furthermore, general measures are being undertaken at cantonal and federal level in order to bring about the necessary modifications in the relevant texts. The Federal Direct Tax Administration has issued a circular to the cantonal authorities inviting them to revise the provisions falling within their competence. At federal level, a sub-committee of the Conseil des Etats has proposed the abrogation of Article 179, paragraph 2, of the Federal Taxation Act of 14 December 1990. This amendment is, however, part of a global reform that may take two or three years to carry out.

In the light of the above, the Government of Switzerland considers that the necessary measures have been taken so that the violation found in the Court’s judgment will not recur. It proposes that the Committee of Ministers resumes consideration of the question of implementation when the legislative reforms have been carried out or, at the latest, at its first meeting in 2001.