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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