COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
Final Resolution ResDH(2001)69
Human Rights
Application No. 23857/94
Plumey against Switzerland
(Adopted by the Committee of Ministers on 26 June 2001
at the 757th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),
Having regard to Interim Resolution DH (97) 517, adopted on 29 October 1997 in the case of Plumey against Switzerland, in which the Committee of Ministers decided to make public the report of the European Commission of Human Rights and decided also that there had been a violation of Article 5, paragraph 3, of the Convention on account of the fact that the Public Prosecutor who ordered the detention on remand of the applicant did not have the quality of “a judge or other officer authorised by law to exercise judicial power” within the meaning of this provision, as he could, later on, conduct the prosecution of the applicant before the court, which in fact he did;
Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 18 November 1998;
Whereas at the 709th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 29 May 2000, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, a total sum of 4 000 Swiss francs, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;
Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decisions of 29 October 1997 and 29 May 2000, having regard to Switzerland’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state informed the Committee that new similar, violations would be avoided for the future because of the revision of the Code of Criminal Procedure of the Canton of Basel-Stadt, which entered into force on 1 January 1993, (see information in Appendix);
Whereas the Committee of Ministers satisfied itself that on 26 September 2000, after having been informed of his account number, the government of the respondent state had paid the applicant the total sum of 4 000 Swiss francs as just satisfaction, within one month of the time-limit set, and thus no default interest was due in accordance with the above-mentioned decision of the Committee of Ministers on just satisfaction,
Declares, after having taken note of the measures adopted, that the Government of Switzerland has exercised its functions under former Article 32 of the Convention in this case.
Appendix to Final Resolution ResDH(2001)69
Information provided by the Government of Switzerland
during the examination of the Plumey case
by the Committee of Ministers
The revision of the Code of Criminal Procedure of the Canton of Basel-Stadt, which entered into force on 1 January 1993, instituted the post of “judge of detention”, a magistrate who exercises the functions of “judge” within the meaning of Article 5, paragraph 3, of the Convention and provides that prosecutors no longer act in the capacity of “magistrate” within the meaning of Article 5, paragraph 3 of the Convention.
A judgment of the Federal Court of 23 September 1998, published in the Recueil officiel (ATF 124 I 274), modified the previous case-law of this court, in that the establishment of a new bill of indictment as well as the designation of a new prosecutor cannot resolve the incompatibility with article 5, paragraph 3, of the Convention of a detention on remand ordered by a member of the Court which subsequently draws up the bill of indictment.
The Government considers that these measures will prevent in the future the risk of new violations similar to that found in this case and that Switzerland has thus fulfilled its obligations under former Article 32 in this case.
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