CEDH · CASELAW;RESOLUTIONS;MERITS;ENG — 19 octobre 1979

.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, acting under the terms of Article 32 (art. 32) of the European 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 by Mr Herbert Eggs against Switzerland (Application No. 7431/76);   Whereas on 17 April 1978 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 introduced on 29 December 1975, the applicant alleged that the strict arrest imposed on him while serving a period of military service constituted a deprivation of liberty incompatible with Article 5, paragraph 1 (art. 5-1), of the convention, that he was unable to contest the lawfulness of his detention before a court in accordance with Article 5, paragraph 4 (art. 5-4), of the convention and that there had been a violation of Article 6 (art. 6) of the convention, asserting that the proceedings taken against him in fact concerned a criminal charge;   Whereas the Commission, in its decision of 11 December 1976 on the admissibility, after having rejected various complaints by the applicant relating in particular to the conditions in which his detention was enforced, found that the complaints in respect of Articles 5 and 6 (art. 5, art. 6) of the convention raised important problems and were of such complexity as to warrant an examination of the merits of the case;   Whereas the Commission, in its report adopted on 4 March 1978, considered that because of the duties he performs, the Chief Military Prosecutor of the Swiss Army cannot be likened to a "competent court" and that therefore the strict arrest imposed on the applicant cannot be justified under Article 5, paragraph 1.a (art. 5-1-a), that the refusal to obey an order concerning the performance of fatigues in peace time is clearly a disciplinary matter and that it does not, in the particular sector of the armed forces, affect the general interests of the society normally protected by the criminal law and therefore that the penalty which resulted in a deprivation of liberty could not in this case be classified as criminal;   Whereas the Commission, in its report, expressed the opinion, by twelve votes to two, that there had been a violation of Article 5, paragraph 1 (art. 5-1), of the convention, by eleven votes to three that there is no need for it to consider the deprivation of liberty in regard to Article 5, paragraph 4 (art. 5-4), of the convention and unanimously that there was no criminal charge against the applicant within the meaning of Article 6, paragraph 1 (art. 6-1), of the convention;   Whereas during the examination of this case, the Committee of Ministers was informed by the Government of Switzerland that, on 7 March 1977, the Federal Council submitted a communication to the Chambers concerning amendments of the military penal code and a complete review of judicial organisation and criminal procedure as they applied to the Federal Army, that one of the chief aims of this change was to substitute for the Chief Military Prosecutor, as the appeal authority, a judge having full power to review judgments, and that furthermore, complaints and appeal in disciplinary cases would always have a suspensive effect, that during their session in March 1979, the Federal Chambers finally approved amendments of the Federal legislation along the lines indicated, that the referendum deadline set for the two Acts expired on 2 July 1979 without use having been made of it and that therefore at its sitting of 11 July 1979 the Federal Council decided that the two Acts would come into force on 1 January 1980,   a.   Takes note of the opinion of the European Commission of Human Rights contained in its report transmitted on 17 April 1978 to the Committee of Ministers in accordance with Article 31, paragraph 2 (art. 31-2), 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 on military penal procedure, both of which will enter 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.