CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 19 octobre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }       The Committee of Ministers, under the terms of Article 54 (art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),        Having regard to the judgment of the European Court of Human Rights in the F. case delivered on 18 December 1987 and to the interim resolution DH (89) 9, adopted by the Committee of Ministers at their 424th meeting, held on 2 March 1989, in the same case;        Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;        Having invited the Government of Switzerland to inform it of the measures which had been taken in consequence of the judgment of 18 December 1987, having regard to its obligation under Article 53 (art. 53) of the Convention to abide by it;        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 judgment, which information appears in the appendix to this resolution,        Declares, after having taken note of the information supplied by the Government of Switzerland, that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.                   Appendix to Resolution DH (94) 77   Information provided by the Government of Switzerland during the examination of the F. case by the Committee of Ministers        The Government recalls that the Court affirmed, in paragraph 43 of its judgment, that the Convention did not give it the power to enjoin Switzerland to change its legislation. Nevertheless, the Swiss Government has invited, in accordance with the declaration made in the appendix to the Interim Resolution DH (89) 9, the expert commission engaged in the reform of the Swiss law of divorce to examine the legislative consequences of the judgment.        The draft submitted by the expert commission proposes that Article 150 of the Swiss Civil Code be deleted.   In 1992, this draft was the object of a consultation procedure involving the cantons, the political parties and other interested parties.   In general, the draft was well received and the abrogation of the waiting period prescribed in Article 150 of the Civil Code was not contested.   The Federal Administration is at present preparing an explanatory memorandum to this draft reform.   The draft and the memorandum will in all likelihood be submitted to Parliament before the end of 1994.   The new Swiss law on divorce is planned, with all due reservations, to enter into force in 1998.   The delay in the progress of the legislative work (in 1989 the Swiss Government indicated that the reform would probably enter into force in 1995) is due, inter alia, to the difficulties connected with the entry into force of the federal legislation on professional insurance, numerous provisions of which have a direct bearing on the planned reform of the law of divorce.        Despite these delays as far as the legislative reforms are concerned, Article 150 of the Civil Code is no longer applied in Swiss law.        In fact, since the judgment of the Court until today, the Federal Court has never again been called upon to deal with an appeal directed against a prohibition of remarriage.   In this context, it should be recalled that after the delivery of the judgment in the F. case, the Head of the Federal Department of Justice and Police immediately contacted all cantonal courts and justice departments in order to bring the Court's judgment, and the consequences of an application of Article 150 of the Civil Code, to their attention.        Even if a new case concerning the application of Article 150 of the Civil Code were to arise today, there could be no question of applying this article in view of the established case-law of the Federal Court with regard to the status of the Convention and of the decisions of the Convention organs in Swiss law.   Thus, the Federal Court has declared itself on several occasions to be under an obligation to apply the Convention and to follow the jurisprudence of the Court (see, e.g., ATF (judgments of the Federal Court) 114 Ia 84, 88: "The Federal Court considers that it is important to follow this severe case-law of the European Court"; ATF 114 Ia 88, 92: "In applying Article 5, paragraph 4 (art. 5-4), of the Convention, the Federal Court must abide by the case-law developed by the European Court").   The Federal Court has confirmed this case-law also in cases where there has been a conflict between the Convention and federal legislation (see, e.g., ATF 111 Ib 68, 71: "If the exclusion of the administrative right of appeal in certain cases were to take away the possibility of appealing effectively against a violation of the rights and freedoms guaranteed by the European Convention on Human Rights, there could be no question of applying the domestic provisions at the basis of this exclusion").        In the light of these developments of the practice and the case-law, the Swiss Government considers that Switzerland has fulfilled its obligations under Article 53 (art. 53) of the Convention.