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R. AGAINST SWITZERLAND

Doc ref: 17771/91 • ECHR ID: 001-49523

Document date: September 11, 1995

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Cited paragraphs: 0
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R. AGAINST SWITZERLAND

Doc ref: 17771/91 • ECHR ID: 001-49523

Document date: September 11, 1995

Cited paragraphs only

The Committee of Ministers, under the terms of Article 32

(art. 32) of the Convention for the Protection of Human Rights and

Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the report drawn up by the European

Commission of Human Rights in accordance with Article 31 (art. 31)

of the Convention relating to the application lodged on

28 January 1991 by Mr R. against Switzerland

(Application No. 17771/91);

Whereas on 28 October 1993 the Commission transmitted the said

report to the Committee of Ministers and whereas the period of

three months provided for in Article 32, paragraph 1 (art. 32-1),

of the Convention has elapsed without the case having been brought

before the European Court of Human Rights in pursuance of

Article 48 (art. 48) of the Convention;

Whereas in his application, as declared admissible by the

Commission on 12 October 1992, the applicant complained that in

proceedings before the Federal Court concerning the adoption of the

applicant's child:

a. he could not request the taking of evidence;

b. he did not have an oral hearing; and

c. he could not comment on the statement of the opposing

party;

Whereas in its report adopted on 9 September 1993, the

Commission expressed, unanimously, the opinion that there had been

a violation of Article 6, paragraph 1 (art. 6-1), of the Convention

as a result of all three complaints raised;

Whereas, at the 514th meeting of the Ministers' Deputies, held

on 9 June 1994, the Committee of Ministers, agreeing with the

opinion expressed by the Commission, held, having voted in

accordance with the provisions of Article 32, paragraph 1

(art. 32-1), of the Convention, that there had been in this case a

violation of Article 6, paragraph 1 (art. 6-1), of the Convention;

Having regard to Interim Resolution DH (95) 28, adopted at the

534th meeting of the Ministers' Deputies, whereby the Committee of

Ministers decided to make public, in the present case, its decision

under Article 32, paragraph 1 (art. 32-1), of the Convention,

adopted on the Deputies' 514th meeting, as well as the report of

the Commission;

Whereas the Committee of Ministers examined the proposals made

by the Commission when transmitting its report as regards just

satisfaction to be awarded to the applicant, proposals supplemented

by a letter of the President of the Commission dated 3 March 1995;

Whereas, at the 536th meeting of the Deputies, held on

5 May 1995, the Committee of Ministers decided, in accordance with

Article 32, paragraph 2 (art. 32-2), of the Convention, that the

Government of Switzerland was to pay the applicant as just

satisfaction, within three months, 2 000 Swiss francs in respect of

non-pecuniary damage and 2 000 Swiss francs in respect of costs and

expenses, namely a total sum of 4 000 Swiss francs;

Whereas the Committee of Ministers invited the Government of

Switzerland to inform it of the measures taken following its

decisions of 9 June 1994 and 5 May 1995, having regard to

Switzerland's obligation under Article 32, paragraph 4 (art. 32-4),

of the Convention to abide by them;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Switzerland gave the Committee

information about the measures taken in consequence of the

Committee's decisions, which information appears in the appendix to

this resolution;

Whereas the Committee of Ministers satisfied itself that

on 27 July 1995, that is within the time-limit set, the Government

of Switzerland paid the applicant the total sum of 4 000 Swiss

francs as just satisfaction,

Declares, having taken note of the measures taken by the

Government of Switzerland, that it has exercised its functions

under Article 32 (art. 32) of the Convention in this case.

Appendix to Final Resolution DH (95) 199

Information provided by the Government of Switzerland

during the examination of the case of R.

by the Committee of Ministers

By judgment of 17 December 1992 the Swiss Federal Court

declared without effect the interpretative declaration concerning

Article 6 (art. 6) of the Convention, as it had been amended by the

Federal Council following the judgment of the European Court of

Human Rights in the Belilos case.

Subsequently, the canton of Zürich adopted, on 17 March 1993,

an ordinance "concerning judicial review in cases relating to

family law or the law of persons". This ordinance entered into

force on 1 April 1993. It provides that cases concerning

guardianship will henceforth be brought, in first instance, before

the cantonal court. The procedure before this court provides the

guarantees laid down in Article 6, paragraph 1 (art. 6-1), of the

Convention, in particular the right to request the taking of

additional evidence and the right to an oral hearing. The entry

into force of this ordinance has, accordingly, remedied the

situation which was the basis of the two first complaints that

there had been a violation of Article 6, paragraph 1 (art. 6-1), of

the Convention.

As regards the finding of the violation with respect to the

third complaint, it will be for the Federal Court to draw the

necessary conclusions in the cases submitted to it.

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