Kaiser against Switzerland - 17073/04 [2009] ECHR 1756 (30 September 2009)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the authorities’ failure to bring the applicant promptly before a judge, the applicant having been arrested in November 2003, taken into police custody and brought before a judge only five days later (violation of Article 5 paragraph 3) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

The case concerns the authorities’ failure to bring the applicant promptly before a judge following his arrest (violation of Article 5, paragraph 3).

In November 2003, the applicant was arrested and taken into police custody on suspicion of having brought a foreign woman into Switzerland and then encouraging her to work as a prostitute. She was presented to a judge five days later, in violation of domestic law.

The Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. Moreover the Court noted that the applicant had not exhausted domestic remedies to obtain compensation for her unlawful detention.

Domestic law provides that a judge must rule on the lawfulness of an individual’s detention at the latest two days after his/her arrest. Nevertheless, the District Court of Zurich held that the applicant’s five-day detention was regular. The Federal court admitted that the applicant’s detention was illegal but had to reject the applicant’s appeal for reasons of domestic procedure.

Action was taken as soon as the judgment of the European Court was delivered to bring it to the attention of the authorities concerned (which apply the Convention directly) with a view to avoiding similar violations. The European Court’s judgment was transmitted on 15/03/2007 to the Federal Court and to the Justice Department (Direction de la Justice) of the Canton of Zurich, which in turn sent it to the courts concerned (first-instance Court, Court of appeal) and to the Zurich Canton public prosecutor’s office. A summary of the judgment was also published in the Annual Report of the Federal Council on the activities of Switzerland in the Council of Europe in 2007. This report was published on the Internet site of the Ministry of Foreign Affairs (http://www.eda.admin.ch/eda/de/home/recent/media.html>, 23.05.2008), then in the Feuille fédérale (official publication of the Federal Chancellery) No. 23 of 10/06/2008.

The government considers that the measures will prevent similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

1 Adopted by the Committee of Ministers on 30 September 2009 at the 1065th meeting of the Ministers’ Deputies

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
-	-	2 750,00 €	2 750,00 €
Paid on 15/08/2007

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You are here: BAILII >> Databases >> European Court of Human Rights >> Kaiser against Switzerland - 17073/04 [2009] ECHR 1756 (30 September 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1756.html Cite as: [2009] ECHR 1756