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 applications lodged by Mr Santschi and others against
Switzerland (Applications Nos. 7468/76, 7938/77, 8018/77, 8106/77,
8325/78 and 8778/79);
Whereas on 13 January 1982 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 their applications introduced between 21 April 1976 and
9 October 1979, the applicants complained principally of having been
detained pursuant to the disciplinary sanctions of light or strict
arrest ordered during a period of service by their official superiors
or outside periods of service by the competent military authorities,
without any court decisions, thus alleging that their deprivation of
liberty was incompatible with Article 5 (art. 5) of the Convention;
Whereas the Commission, after having declared the applications
admissible and having decided to join them on 8 July 1980, in its report
adopted on 13 October 1981 took it as established that the arrests to
which the applicants were submitted, if only in the way in which they
were enforced, were in the nature of a deprivation of liberty, and
considered that, because of the duties he performed, the Chief
Military Prosecutor could not be likened to a "competent court";
Whereas in its report the Commission expressed the opinion by twelve
votes to one that in the case under consideration there had been a
violation of Article 5, paragraph 1 (art. 5-1), of the Convention;
Agreeing with the opinion expressed by the Commission in accordance
with Article 31, paragraph 1 (art. 31-1), of the Convention;
Whereas the Committee was informed by the Government of Switzerland
that the military penal code and the law on military penal procedure,
as they were in force in Switzerland since 1 January 1980, had
substituted for the Chief Military Prosecutor, as the ultimate appeal
authority, a court having full power to reverse decisions by the
military commanders and that, furthermore, complaints and appeals in
disciplinary cases always had a suspensive effect;
Voting in accordance with the provisions of Article 32, paragraph 1
(art. 32-1), of the Convention,
a. Decides that in this case there has been a violation of
Article 5, paragraph 1 (art. 5-1), 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 of military penal procedure, both of which came 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;
d. Decides, in the light of the foregoing, that no further action
is called for in this case.