Resolution CM/ResDH(2007)132[1]
Execution of the judgments of the European Court of Human Rights
Contardi and Spang against Switzerland
(Applications Nos 7020/02 and 45228/99, judgments of 12 July 2005 and 11 October 2005,
final on 12 October 2005 and on 11 January 2006)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violation of the Convention found by the Court in these cases concerns the unfairness of certain proceedings concerning civil rights and obligations before the administrative courts (Federal Insurance Court) on account of the failure to disclose some documents to the applicants with the consequence that they could not reply (violation of Article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Switzerland's obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2007)132
Information about the measures to comply with the judgments in the cases of
Contardi and Spang against Switzerland
Introductory cases summary
These cases concern the unfairness of certain proceedings concerning civil rights and obligations before an administrative court (Federal Insurance Court) on account of the failure to disclose some documents (comments made by a cantonal administrative court and certain social authorities in the case of Contardi, comments made by the Federal Social Insurance Agency in the case of Spang) to the applicants with the consequence that they could not reply. In the proceedings the applicant Contardi contested the assessment of his disability pension, while the applicant Spang contested the assessment of his reimbursement from the pension fund (violations of Article 6, paragraph 1).
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name
Application No
Non-pecuniary damage
Costs and expenses
Total
Paid on
Contardi
7020/02
3 230 €
3 230 €
01/12/2005
Spang
45228/99
2 000 €
3 500 €
5 500 €
17/02/2006
b) Individual measures
Under Swiss administrative law the applicants may request reopening of domestic proceedings following the European Court's judgment.
II.General measures
Stating that the principle of equality of arms is a basic element of fairness of proceedings and citing its case‑law, the European Court held that even where the documents had little or no impact on the decision, it was above all the litigant's confidence in the work of justice which was at stake. This confidence is based inter alia on the knowledge that he could have the opportunity to express his views on every document in the file (see paragraph 44).
These principles have been explicitly incorporated into Swiss law by judgments of the Federal Court of 28 December 2005 (1P.784/2005) and of 3 April 2006 (1P.59/2006), available under /index/juridiction demonstrating the direct effect of the European Court's judgments.
The judgments of the European Court were sent out to the authorities directly concerned and brought to the attention of the Cantons via a circular. Furthermore, the judgment of the European Court in the case of Contardi was published in Verwaltungspraxis der Bundesbehörden (Digest of Confederal Administrative Case-law), VPB 69.131, available via /deutsch/doc/69/69.131.html and mentioned in the yearly report of the Federal Council on the activities of Switzerland in the Council of Europe in 2005.
III.Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies
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