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You are here: BAILII >> Databases >> European Court of Human Rights >> Weber against Switzerland - 3688/04 [2009] ECHR 1757 (30 September 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1757.html Cite as: [2009] ECHR 1757

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Resolution CM/ResDH(2009)91¹

Execution of the judgment of the European Court of Human Rights

Weber against Switzerland

(Application No. 3688/04, judgment of 26 July 2007, final on 26 October 2007)

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 unlawfulness of the remand in custody of a person suffering mental disorders, due to the lack of adequate legal grounds (violation of Art. 5§1).

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, within the time-limit set, 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

- of general measures, preventing similar violations;

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

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)91

Information about the measures to comply with the judgment in the case of

Weber against Switzerland

Introductory case summary

The case concerns the applicant’s remand in custody between September 2003 and January 2004 without adequate legal grounds in Swiss law (violation of Article 5, paragraph 1).

In 2002 the applicant was sentenced to imprisonment, but the sentence was suspended and replaced by out-patient medical and social treatment. Following the applicant’s failure to comply with the schedule of consultations for this treatment and the finding of the deterioration of his mental state, the competent authorities applied to have the suspension revoked and the applicant placed in a specialised establishment. During the resulting proceedings, the applicant was placed in detention on remand on account of the risk that he might re-offend.

The European Court found that this detention had no adequate basis in Swiss law, as it was not based on any precise provision and as, at the material time, there was only one precedent judicial decision to confirm the lawfulness of applying the provisions on remand in custody to cases where such detention was ordered subsequently to the judgment.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The detention at issue ended in January 2004. The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damages suffered.

II. General measures

At the time of the proceedings, the issue of the lawfulness of detention ordered in proceedings subsequent to the judgment had been dealt with only once, in a decision of the Federal Court of 25/06/2002 (ATF 128 I 184). In this case, concerning the Zürich Canton, the Federal Court considered that the provisions on detention on remand also allowed detention ordered in the framework of a procedural decision taken following the judgment. In the case at issue, detention was held to be lawful to the extent that the pending procedure would most probably end in privation of liberty and therefore at least one of the grounds explicitly mentioned by the law on detention on remand applied.

The Federal Court further confirmed its case-law in two other judgments delivered on 04/07/2005 (reference 1P.359/2005) and 24/01/ 2006 (reference 1P.13/2006), concerning two other Cantons, Bern and Basel-City. With respect to these judgments, the European Court noted (§42), that the authorities were right in saying that the Federal Court subsequently confirmed its case-law by two judgments of 2005 and 2006. However, as the detention at issue in those cases occurred between September 2003 and January 2004, the applicant could not have knowledge of these cases; thus, at the material time, they did not contribute to making the legal situation more foreseeable.

The case-law of the federal tribunal has not been changed since then. Furthermore, the European Court’s judgment has been transmitted to the courts concerned – which apply the Convention directly, so that they may take it into account in their future case-law. The judgment was immediately communicated to the Federal Court, as well as to the Justice Directorate of the Vaud Canton, which sent it out to all Canton authorities concerned. Finally, to ensure publicity for this judgment, a summary was 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) No. 23 of 10 June 2008.

III. Conclusions of the respondent state

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