The Committee of Ministers, acting under the terms of Article 32
(art. 32) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter referred to as "the
convention");
Having regard to the report drawn up by the European Commission of
Human Rights in accordance with Article 31 (art. 31) of the convention
relating to the application lodged by Mr Herbert Eggs against
Switzerland (Application No. 7431/76);
Whereas on 17 April 1978 the Commission transmitted the said report to
the Committee of Ministers and whereas the period of three months
provided for in Article 32, paragraph 1 (art. 32-1), of the convention
has elapsed without the case having been brought before the European
Court of Human Rights in pursuance of Article 48 (art. 48) of the
convention;
Whereas in his application introduced on 29 December 1975, the
applicant alleged that the strict arrest imposed on him while serving
a period of military service constituted a deprivation of liberty
incompatible with Article 5, paragraph 1 (art. 5-1), of the
convention, that he was unable to contest the lawfulness of his
detention before a court in accordance with Article 5, paragraph 4
(art. 5-4), of the convention and that there had been a violation of
Article 6 (art. 6) of the convention, asserting that the proceedings
taken against him in fact concerned a criminal charge;
Whereas the Commission, in its decision of 11 December 1976 on the
admissibility, after having rejected various complaints by the
applicant relating in particular to the conditions in which his
detention was enforced, found that the complaints in respect of
Articles 5 and 6 (art. 5, art. 6) of the convention raised important
problems and were of such complexity as to warrant an examination of
the merits of the case;
Whereas the Commission, in its report adopted on 4 March 1978,
considered that because of the duties he performs, the Chief Military
Prosecutor of the Swiss Army cannot be likened to a "competent court"
and that therefore the strict arrest imposed on the applicant cannot
be justified under Article 5, paragraph 1.a (art. 5-1-a), that the
refusal to obey an order concerning the performance of fatigues in
peace time is clearly a disciplinary matter and that it does not, in
the particular sector of the armed forces, affect the general
interests of the society normally protected by the criminal law and
therefore that the penalty which resulted in a deprivation of liberty
could not in this case be classified as criminal;
Whereas the Commission, in its report, expressed the opinion, by
twelve votes to two, that there had been a violation of Article 5,
paragraph 1 (art. 5-1), of the convention, by eleven votes to three
that there is no need for it to consider the deprivation of liberty in
regard to Article 5, paragraph 4 (art. 5-4), of the convention and
unanimously that there was no criminal charge against the applicant
within the meaning of Article 6, paragraph 1 (art. 6-1), of the
convention;
Whereas during the examination of this case, the Committee of
Ministers was informed by the Government of Switzerland that, on
7 March 1977, the Federal Council submitted a communication to the
Chambers concerning amendments of the military penal code and a
complete review of judicial organisation and criminal procedure as
they applied to the Federal Army, that one of the chief aims of this
change was to substitute for the Chief Military Prosecutor, as the
appeal authority, a judge having full power to review judgments, and
that furthermore, complaints and appeal in disciplinary cases would
always have a suspensive effect, that during their session in
March 1979, the Federal Chambers finally approved amendments of the
Federal legislation along the lines indicated, that the referendum
deadline set for the two Acts expired on 2 July 1979 without use
having been made of it and that therefore at its sitting of
11 July 1979 the Federal Council decided that the two Acts would come
into force on 1 January 1980,
a. Takes note of the opinion of the European Commission of Human
Rights contained in its report transmitted on 17 April 1978 to the
Committee of Ministers in accordance with Article 31, paragraph 2
(art. 31-2), of the convention;
b. Takes note of the adoption by the Swiss Federal Assembly on
23 March 1979 of the modification to the Military Penal Code and of a
new law on military penal procedure, both of which will enter into
force on 1 January 1980;
c. Takes note of the fact that the Government of Switzerland does not
object to the publication of the report of the Commission.