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CASE OF F. AGAINST SWITZERLAND

Doc ref: 11329/85 • ECHR ID: 001-55598

Document date: October 19, 1994

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CASE OF F. AGAINST SWITZERLAND

Doc ref: 11329/85 • ECHR ID: 001-55598

Document date: October 19, 1994

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 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 F. case delivered on 18 December 1987 and to the

interim resolution DH (89) 9, adopted by the Committee of Ministers

at their 424th meeting, held on 2 March 1989, in the same case;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of the

Convention;

Having invited the Government of Switzerland to inform it of

the measures which had been taken in consequence of the judgment of

18 December 1987, having regard to its obligation under Article 53

(art. 53) of the Convention to abide by it;

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

judgment, which information appears in the appendix to this

resolution,

Declares, after having taken note of the information supplied

by the Government of Switzerland, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (94) 77

Information provided by the Government of Switzerland

during the examination of the F. case

by the Committee of Ministers

The Government recalls that the Court affirmed, in

paragraph 43 of its judgment, that the Convention did not give it

the power to enjoin Switzerland to change its legislation.

Nevertheless, the Swiss Government has invited, in accordance

with the declaration made in the appendix to the Interim

Resolution DH (89) 9, the expert commission engaged in the reform

of the Swiss law of divorce to examine the legislative consequences

of the judgment.

The draft submitted by the expert commission proposes that

Article 150 of the Swiss Civil Code be deleted. In 1992, this

draft was the object of a consultation procedure involving the

cantons, the political parties and other interested parties. In

general, the draft was well received and the abrogation of the

waiting period prescribed in Article 150 of the Civil Code was not

contested. The Federal Administration is at present preparing an

explanatory memorandum to this draft reform. The draft and the

memorandum will in all likelihood be submitted to Parliament before

the end of 1994. The new Swiss law on divorce is planned, with all

due reservations, to enter into force in 1998. The delay in the

progress of the legislative work (in 1989 the Swiss Government

indicated that the reform would probably enter into force in 1995)

is due, inter alia, to the difficulties connected with the entry

into force of the federal legislation on professional insurance,

numerous provisions of which have a direct bearing on the planned

reform of the law of divorce.

Despite these delays as far as the legislative reforms are

concerned, Article 150 of the Civil Code is no longer applied in

Swiss law.

In fact, since the judgment of the Court until today, the

Federal Court has never again been called upon to deal with an

appeal directed against a prohibition of remarriage. In this

context, it should be recalled that after the delivery of the

judgment in the F. case, the Head of the Federal Department of

Justice and Police immediately contacted all cantonal courts and

justice departments in order to bring the Court's judgment, and the

consequences of an application of Article 150 of the Civil Code, to

their attention.

Even if a new case concerning the application of Article 150

of the Civil Code were to arise today, there could be no question

of applying this article in view of the established case-law of the

Federal Court with regard to the status of the Convention and of

the decisions of the Convention organs in Swiss law. Thus, the

Federal Court has declared itself on several occasions to be under

an obligation to apply the Convention and to follow the

jurisprudence of the Court (see, e.g., ATF (judgments of the

Federal Court) 114 Ia 84, 88: "The Federal Court considers that it

is important to follow this severe case-law of the European Court";

ATF 114 Ia 88, 92: "In applying Article 5, paragraph 4 (art. 5-4),

of the Convention, the Federal Court must abide by the case-law

developed by the European Court"). The Federal Court has confirmed

this case-law also in cases where there has been a conflict between

the Convention and federal legislation (see, e.g., ATF 111

Ib 68, 71: "If the exclusion of the administrative right of appeal

in certain cases were to take away the possibility of appealing

effectively against a violation of the rights and freedoms

guaranteed by the European Convention on Human Rights, there could

be no question of applying the domestic provisions at the basis of

this exclusion").

In the light of these developments of the practice and the

case-law, the Swiss Government considers that Switzerland has

fulfilled its obligations under Article 53 (art. 53) of the

Convention.

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