Resolution ResDH(2006)55
concerning the judgment of the European Court of Human Rights
of 5 April 2001 (final on 5 July 2001)
in the case of H.B. against Switzerland
(Adopted by the Committee of Ministers on 2 November 2006,
at the 976th meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 46, paragraph 2, 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 H.B. case delivered on 5 April 2001 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;
Recalling that the case originated in an application (No. 26899/95) against Switzerland, lodged with the European Commission of Human Rights on 17 March 1995 under former Article 25 of the Convention by Mr H.B., a Swiss national, and that the Commission declared admissible the complaints concerning the violation of the applicant's right to liberty and security of person, due, first, to the failure to inform him of the reasons for his detention and, secondly, to the role of the investigating magistrate of the canton of Solothurn who decided to arrest the applicant and place him in detention on remand, in view of the possibility that this same magistrate could intervene on the prosecution side in subsequent criminal; as well as the lack of effective remedy whereby the applicant might complain of his detention;
Recalling that the case was brought before the Court on 1 November 1999, under Article 5, paragraph 3, of Protocol No. 11 to the Convention;
Whereas in its judgment of 5 April 2001 the Court unanimously:
- held that there had been no violation of Article 5, paragraph 2, of the Convention;
- held that there had been a violation of Article 5, paragraph 3, of the Convention;
- held that it was not necessary to examine the applicant's complaint under Article 13 of the Convention;
- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 2 000 Swiss francs in respect of non-pecuniary damage and 10 000 Swiss francs in respect of costs and expenses and that simple interest at an annual rate of 5% would be payable on those sums from the expiry of the above-mentioned three months until settlement;
- dismissed the remainder of the applicant's claim for just satisfaction;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;
Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 5 April 2001, having regard to Switzerland's obligation under Article 46, paragraph 1, of the Convention to abide by it;
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken, first, so that the applicant might obtain integral reparation for the violation found (restitutio in integrum) and, secondly, to prevent new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;
Having satisfied itself that on 17 August 2001, within the time-limit set, the government of the respondent state had paid the applicant the sums provided for in the judgment of 5 April 2001,
Declares, after having examined the information supplied by the Government of Switzerland, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.
Appendix to Resolution ResDH(2006)55
Information provided by the Government of Switzerland
during the examination of the H.B. case
by the Committee of Ministers
Individual measures:
The judgment of the European Court was transmitted on 6 July 2001 to the applicant, so that he might lodge an application for a review of the final criminal judgment which had been delivered in the proceedings at issue in this case (judgment of the Federal Tribunal of 13 April 1999).
General measures:
The judgment of the European Court was sent out on 12 April 2001 to the Federal Tribunal and to the relevant authorities of the canton of Solothurn (Department of justice and constructions). On 9 and 10 May, the judgment was sent to the other cantonal Departments of justice.
Having thus been informed of the European Court's judgment, the authorities of the Solothurn canton immediately took measures to avoid new, similar violations. According to these measures, which were not legislative but consisted of a practice, an investigating magistrate may no longer remand someone in custody who is involved in proceedings conducted by the same judge, the power to remand having been transferred to another judge.
Subsequently, a legislative reform was adopted in the same direction. The relevant legislative provisions were adopted by the Parliament of the canton of Solothurn on 5 November 2003 and the cantonal constitution has been modified following a popular vote on 16 May 2004. According to the texts adopted and in particular the new paragraphs 44 to 47ter of the Code of Criminal Procedure, detention is no longer imposed by the investigating magistrate, but by another, independent magistrate: the “detention magistrate” (« Haftrichter »).
Finally, the public has also been informed of the requirements of the Convention as they arise from the present judgment, which has been published, inter alia in the journal Jurisprudence des autorités administratives de la Confédération (65/IV [2001] no 120).
************
In the light of the above, the Swiss Government considers that it has fulfilled its obligations under the Article 46 of the Convention.
Full & Egal Universal Law Academy