The Committee of Ministers, under the terms of Article 32
(art. 32) of the 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 on
28 January 1991 by Mr R. against Switzerland
(Application No. 17771/91);
Whereas on 28 October 1993 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, as declared admissible by the
Commission on 12 October 1992, the applicant complained that in
proceedings before the Federal Court concerning the adoption of the
applicant's child:
a. he could not request the taking of evidence;
b. he did not have an oral hearing; and
c. he could not comment on the statement of the opposing
party;
Whereas in its report adopted on 9 September 1993, the
Commission expressed, unanimously, the opinion that there had been
a violation of Article 6, paragraph 1 (art. 6-1), of the Convention
as a result of all three complaints raised;
Whereas, at the 514th meeting of the Ministers' Deputies, held
on 9 June 1994, the Committee of Ministers, agreeing with the
opinion expressed by the Commission, held, having voted in
accordance with the provisions of Article 32, paragraph 1
(art. 32-1), of the Convention, that there had been in this case a
violation of Article 6, paragraph 1 (art. 6-1), of the Convention;
Having regard to Interim Resolution DH (95) 28, adopted at the
534th meeting of the Ministers' Deputies, whereby the Committee of
Ministers decided to make public, in the present case, its decision
under Article 32, paragraph 1 (art. 32-1), of the Convention,
adopted on the Deputies' 514th meeting, as well as the report of
the Commission;
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 3 March 1995;
Whereas, at the 536th meeting of the Deputies, held on
5 May 1995, the Committee of Ministers decided, in accordance with
Article 32, paragraph 2 (art. 32-2), of the Convention, that the
Government of Switzerland was to pay the applicant as just
satisfaction, within three months, 2 000 Swiss francs in respect of
non-pecuniary damage and 2 000 Swiss francs in respect of costs and
expenses, namely a total sum of 4 000 Swiss francs;
Whereas the Committee of Ministers invited the Government of
Switzerland to inform it of the measures taken following its
decisions of 9 June 1994 and 5 May 1995, having regard to
Switzerland's obligation under Article 32, paragraph 4 (art. 32-4),
of the Convention to abide by them;
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
Committee's decisions, which information appears in the appendix to
this resolution;
Whereas the Committee of Ministers satisfied itself that
on 27 July 1995, that is within the time-limit set, the Government
of Switzerland paid the applicant the total sum of 4 000 Swiss
francs as just satisfaction,
Declares, having taken note of the measures taken by the
Government of Switzerland, that it has exercised its functions
under Article 32 (art. 32) of the Convention in this case.
Appendix to Final Resolution DH (95) 199
Information provided by the Government of Switzerland
during the examination of the case of R.
by the Committee of Ministers
By judgment of 17 December 1992 the Swiss Federal Court
declared without effect the interpretative declaration concerning
Article 6 (art. 6) of the Convention, as it had been amended by the
Federal Council following the judgment of the European Court of
Human Rights in the Belilos case.
Subsequently, the canton of Zürich adopted, on 17 March 1993,
an ordinance "concerning judicial review in cases relating to
family law or the law of persons". This ordinance entered into
force on 1 April 1993. It provides that cases concerning
guardianship will henceforth be brought, in first instance, before
the cantonal court. The procedure before this court provides the
guarantees laid down in Article 6, paragraph 1 (art. 6-1), of the
Convention, in particular the right to request the taking of
additional evidence and the right to an oral hearing. The entry
into force of this ordinance has, accordingly, remedied the
situation which was the basis of the two first complaints that
there had been a violation of Article 6, paragraph 1 (art. 6-1), of
the Convention.
As regards the finding of the violation with respect to the
third complaint, it will be for the Federal Court to draw the
necessary conclusions in the cases submitted to it.
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