Resolution CM/ResDH(2012)61[1]
Execution of the judgment of the European Court of Human Rights
Gsell against Switzerland
(Application No. 12675/05, judgment of 8 October 2009, final on 8 January 2010)
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 judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the applicant’s right to freedom of expression because he was refused entry to the Davos World Economic Forum in 2001 (violation of Article 10) (see details in Appendix);
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
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 applicant the just satisfaction provided in the judgment (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 judgment, 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
- of general measures, preventing similar violations;
Recalling that new issues relating to the aspect of a fair hearing before the Federal Court are examined by the Committee of Ministers within the context of more recent judgments;
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(2012)61
Information about the measures to comply with the judgment in the case of
Gsell against Switzerland
Introductory case summary
The case concerns the unjustified interference with the right to freedom of expression of the applicant, a journalist with a good-food magazine, because the prohibition to enter the Davos World Economic Forum (WEF) in 2001 had not been prescribed by law (violation of Article 10).
On 27 January 2001, when the applicant was on his way to the WEF, and more specifically to the Public Eye on Davos event being staged by anti-globalisation organisations, the police subjected the passengers of the bus in which he was travelling to an identity check. Despite showing his press card, he was prohibited from entering Davos by the police, who had put in place numerous security measures in view of the announcement of an unauthorised demonstration and of disturbances. The authorities relied on the general police clause enshrined in the Federal Constitution, which could be invoked to deal with “emergency situations” in the absence of other legal means of averting a “clear and present danger”.
While the Court acknowledged the difficulty for the authorities of making a precise assessment of the risks inherent in the WEF, it did not consider that the scale of the demonstrations had been unforeseeable, in view of past experience and the findings of a previous report on security at the WEF. Further, according to the case-law of the Swiss Federal Court, measures to restrict freedom of assembly were to be taken solely in respect of those persons who were creating a disturbance, which had not been the case with the applicant. Consequently, the Court found that, in the absence of a specific legal basis, the authorities had not been entitled to make use of the general police clause in order to prohibit the applicant from entering Davos.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
1026 EUR
-
7000 EUR
8026 EUR
Paid on 03/03/2010
b) Individual measures
The Court awarded the applicant just satisfaction in respect of pecuniary damage for loss of two days’ salary and for costs related to a train ticket and meals. As regards non-pecuniary damage, it held that the finding of a violation constitute sufficient just satisfaction in this respect.
In view of the above, no further individual measure was deemed necessary by the Committee of Ministers.
II.General measures
On 28/11/2001, the Cantonal Parliament of Graubünden adopted a new regulation on the cantonal police whose Article 8a filled the legal void existing at the time of the events in question (see § 59 of the judgment). This provision was subsequently replaced by Article 12 of the law on the police of the Canton of Graubünden of 20/10/2004 (in force since 01/07/2005; see §35 of the judgment).
The Swiss authorities indicated that the particular situation from which the case arose at the World Economic Forum 2001 was unique for Switzerland and that they were not aware of similar situations in other cantons or at the federal level where the legal basis for similar measures was missing or held to be insufficient. If, however, a comparable future situation should be brought to the attention of cantonal or federal authorities or courts, it is clear that the case-law of the European Court with regard to the requirement of a legal basis would apply directly.
In addition, the Swiss authorities provided examples in a non-exhaustive way of the relevant legal basis from four other Cantons with large cities (Geneva, Zurich, Berne, Basel).
Lastly, the judgment of the Court was also sent out to the Federal Court and to the authorities directly concerned, and published in the quarterly Report on the jurisprudence of the ECHR 4/2009 in the three official languages.
III.Conclusions of the respondent state
The government considers that no individual measure is required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention in the present case.
[1] Adopted by the Committee of Ministers on 8 March 2012 at the 1136th Meeting of the Ministers’ Deputies.
Full & Egal Universal Law Academy