EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28286/95

W. O.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 3 June 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-7) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 8-29) 3

III. OPINION OF THE COMMISSION

(paras. 30-49) 5

A. Complaint declared admissible

(para. 30) 5

B. Point at issue

(para. 31) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 32-48) 5

CONCLUSION

(para. 49) 7

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 8

  I. INTRODUCTION

1. The present Report concerns the application No. 28286/95 introduced on 18 August 1995  against Switzerland and registered on 22 August 1995.

2. The applicant is a Swiss citizen, born in 1921 and resident in Einsiedeln in Switzerland.  He was represented before the Commission by Mr F. Huwyler , a lawyer practising in Schwyz , and Mr. B. Bernet , a lawyer practising in Zurich.

3. The respondent Government were represented by their Agent, Mr Ph . Boillat , Head of the International Affairs Division of the Federal Office of Justice.

4. The application was communicated to the Government on 24 January 1997.  Following an exchange of written observations, the complaint relating to the length of criminal proceedings (Article 6 para. 1 of the Convention) was declared admissible on 16 April 1998.  The decision on admissibility is appended to this Report.  Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

5. Having noted that there is no basis upon which a friendly settlement within the meaning of former Article 28 para. 1 (b) of the Convention  can be secured, the Commission, after deliberating, adopted this Report on 3 June 1999 in pursuance of former Article 31 of the Convention, the following members being present:

MM E. BUSUTTIL, Acting President

S. TRECHSEL

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

6. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Switzerland.

7. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

8. Until his retirement in 1986 the applicant was a notary and landregistrar ( Grundbuchverwalter ) of the Einsiedeln District.

9. On 8 April 1986 the Einsiedeln District Council ( Bezirksrat ) filed a criminal action ( Strafklage ) against the applicant on the ground that he was suspected of having embezzled money ( Veruntreuung ) and forged documents ( Urkundenfälschung ) on many occasions.  For instance, acting in his official capacity, the applicant had misappropriated and disloyally managed monies entrusted to him.  When registering real property transactions he had on over a hundred occasions stated the wrong date.  He had also annulled to his own advantage servitudes ( Dienstbarkeiten ) in favour of other persons.  The facts leading to these charges went back to 1979.

10. Criminal investigations were then instituted as a result of which the applicant was remanded in custody in August 1986.  Among the investigations undertaken, it appears that a request for information was filed with a German court.

11. On 27 November 1987, during the investigations, the applicant's lawyer requested, on grounds of the complexity of the case, an extension of the time-limit until the end of 1987 in order to consult the case file, and until 15 January 1988 in order to file a supplementary request.  On 31 December 1987 he requested, on grounds, inter alia , of illness, an extension of those time-limits until 31 January and 15 February 1988, respectively.  On 1 February 1988 he requested an extension of the time-limit until 29 February 1988 in order to file a supplementary request.

12. The investigations were concluded on 28 July 1988 when the proceedings were transferred to the Public Prosecutor's Office ( Staatsanwaltschaft ).

13. On 29 September 1988 the Public Prosecutor's Office filed the bill of indictment ( Anklage ) against the applicant.  Proceedings were then continued before the Criminal Court ( Strafgericht ) of the Canton of Schwyz .

14. On 7 November 1988 the applicant's lawyer requested an extension of the time-limit until the end of November in order to file requests for the taking of evidence.  On 30 November 1988 he requested a further extension until 10 December 1988.

15. The trial before the Criminal Court was held on 23 and 24 February 1989.

16. On 17 March 1989 the Criminal Court convicted the applicant, inter alia , of embezzlement and forging documents, and sentenced him to 16 months' imprisonment, suspended on probation for a period of two years.  He was also sentenced to a fine of 6,000 Swiss Francs (CHF).  The applicant was acquitted of other charges; in respect of two charges the case was referred back to the prosecuting authorities.

17. The applicant's appeal was partly upheld by the Cantonal Court ( Kantonsgericht ) of the Canton of Schwyz on 15 May 1990.  The Cantonal Court found, inter alia , that the Criminal Court, rather than referring certain charges back to the prosecuting authorities, should itself have decided the issues.  As a result, the Cantonal Court quashed the previous decision.

18. Proceedings were resumed before the Criminal Court, which on 26 July 1990 ordered the Investigation Office ( Verhöramt ) to conduct evidence proceedings.  On 17 April 1991 the investigations were concluded.

19. On 12 December 1991 the Public Prosecutor's Office filed a supplementary bill of indictment ( ergänzende Anklage ).

20. On 23 December 1991 the applicant's lawyer requested a period of three weeks to file his observations.

21. In March 1992 the applicant's lawyer was requested to comment on the case file and file any requests for the taking of evidence before the end of the month.  On 30 March 1992 he filed a request to extend this time-limit until 15 April 1992.

22. The trial was held before the Criminal Court on 21 and 22 May 1992.  The judgment of the Criminal Court, dated 21 and 22 May 1992, convicted the applicant, inter alia , of the offences of embezzlement and forging documents, and acquitted him of other offences.  He was sentenced to 21 months' imprisonment and a fine of CHF 6,000.

23. The judgment was served on the applicant on 28 October 1992.

24. Against this judgment the applicant filed an appeal with the Cantonal Court on 4 November 1992.

25. An appeal hearing was held before the Cantonal Court on 3 May 1994.  The court's decision, delivered on the same day, sentenced the applicant to 24 months' imprisonment.

26. When deciding on the punishment, the Cantonal Court considered the applicant’s complaint about the length of the proceedings, which had by then lasted six years and ten months.  While such a period appeared long, the court considered that the case was complex and the applicant had constantly presented new versions of the facts.  Even in the appeal proceedings the applicant had requested that the case be referred back to the previous court, and had not objected when on 15 May 1990 the case had been referred back to the Criminal Court.  Nevertheless, the length of the proceedings constituted a mitigating element when deciding on the punishment, though the previous sentence of 21 months had been too mild.

27. The applicant filed a plea of nullity ( Nichtigkeitsbeschwerde ) and a public-law appeal ( staatsrechtliche Beschwerde ) with the Federal Court ( Bundesgericht ) on 4 July and 16 August 1994 respectively.  These appeals were dismissed by the court in two decisions dated 27 January 1995.  The decisions were served on the applicant on 22 March 1995.

28. In its decisions, the court referred, inter alia , to the applicant's complaint under Article 6 para. 1 of the Convention about the undue length of the proceedings.  The Court found that the Cantonal Court had duly considered the length as a mitigating circumstance and that, according to the findings of the Cantonal Court, the applicant himself had accepted that the proceedings before the Cantonal Court had not lasted unduly long.

29. On 8 February 1996 the Administrative Court of the Canton of Schwyz decided, having regard to two medical expert opinions, that in view of the applicant's depression he was unable to serve his sentence ( nicht hafterstehungsfähig ).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

30. The Commission has declared admissible the applicant’s complaint that his case was not heard within a reasonable time.

B. Point at issue

31. The only point at issue is whether the length of the proceedings complained of exceeded the “reasonable time” referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

32. Article 6 para. 1 of the Convention, insofar as relevant, reads as follows:

"In the determination of … any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..."

33. The applicant submits that he was first officially informed of the criminal proceedings instituted against him on 8 April 1986, though he suspects that investigations were already commenced beforehand, even as early as 1984.  The bill of indictment of 29 September 1988 later had to be set aside in view of numerous procedural errors.  In any event, he was acquitted in respect of a substantial number of charges.  The proceedings until 1990 were nerve-racking and useless ( nutzlos ), as the investigations had to be recommenced.

34. The applicant contends that the fact that the first proceedings had to be declared invalid and new investigations carried out, leading to a new indictment, constitutes in itself a ground for assuming that the proceedings had lasted too long.  In any event, the fact that two sets of proceedings were conducted should have been sufficient reason to expedite the individual stages.  However, after completion of the second investigation, a further eight months elapsed until the supplementary bill of indictment was filed on 12 December 1991.  It took another five months for the Criminal Court to deliver its second judgment of 21/22 May 1992, and a further 18 months passed, after the appeal statement was filed, until the Cantonal Court gave its judgment on 3 May 1994.

35. The applicant emphasises that his lawyer made every effort to expedite the proceedings, and did not request any unnecessary extensions of time-limits.  In any event, the extensions were of short duration, and the applicant's lawyer was never reproached during the proceedings for having made excessive use of his rights as a defence lawyer.  Lodging appeals was something the applicant had every right to do in order to defend himself.

36. In the applicant's submission, the domestic courts on the whole admitted that the proceedings had lasted too long.  However, they failed to recognise that a period of eight years, involving a serious psychological and physical burden, was a punishment in itself.  The courts were obviously overtaxed by the entire proceedings, and he cannot be blamed for this.

37. The Government contend that the applicant's complaints are inadmissible as being manifestly ill-founded.  It is submitted that the proceedings commenced in August 1986 when the applicant was remanded in custody, and ended in March 1995 when the Federal Court's judgments were served on the applicant.

38. The Government consider that, while the proceedings may appear long, in fact, if the different stages are assessed independently, they were conducted rapidly.  Even the investigations which were originally misdirected were conducted speedily, which explains, at least partly, why later they had to be supplemented.  Indeed, nowhere in his submissions does the applicant sufficiently point to concrete delays in the proceedings.

39. The Government submit that the complexity of the case contributed to the length of the proceedings.  Thus, the case comprised a large number of offences, in respect of which there was little case-law, with facts going back to 1979, and involving two complainants, i.e. the Einsiedeln District and a private person.  The applicant himself had not kept any accounts, and a very large number of documents had to be examined in detail.  Investigations were even undertaken in Germany.  Reference is also made to the volume of the various judgments, e.g. the judgment of the Criminal Court of 17 March 1989 comprising 102 pages, with minutes of the hearing amounting to 246 pages; the judgment of the Cantonal Court of 15 May 1990 comprising 87 pages;  the second judgment of the Criminal Court of 21/22 May 1992 comprising 61 pages, with minutes of the hearing amounting to 67 pages; and the second judgment of the Cantonal Court of 3 May 1994 of 83 pages.

40. The Government further contend that the applicant himself contributed to the length of the proceedings.  Thus, he at times modified his version of the facts, and on various occasions (27 November and 31 December 1987, 1 February and 7 and 30 November 1988, 31 January and 23 December 1991 and 30 March 1992) he requested an extension of the time-limit.  Moreover, in the second set of proceedings, the Cantonal Court actually intended to fix the hearing in February 1994, but the applicant's lawyer was too busy, so it was fixed for 3 May 1994.

41. Finally, the Government point out that in its judgment of 3 May 1994 the Cantonal Court duly considered the length of the proceedings when determining the applicant's sentence.  The Government refer in this case to the comparable case of R. B. v. Switzerland where the Commission found no violation of Article 6 para. 1 of the Convention as that applicant's sentence had been reduced as a result of the length of the proceedings (n° 18905/91, Comm. Report 24.5.95, para. 60).

42. The Commission considers that the period to be taken into consideration began in April 1986 when the applicant was officially informed of the criminal proceedings instituted against him and ended in March 1995 when the decisions of the Federal Court were served on the applicant.  The proceedings therefore lasted nearly nine years.

43. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).

44. The Commission accepts that the case was complex.  However, the complexity of the case cannot in itself justify the total length of the proceedings.

45. The Commission further considers that there were no significant delays caused by the applicant.

46. As regards the conduct of the authorities, the Commission notes the following periods of inactivity: almost eight months elapsed between the completion of the second investigation in April 1991 and the issue of the supplementary bill of indictment in December 1991; it took five months to serve on the applicant (on 28 October 1992) the judgment of the Criminal Court of 21/ 22 May 1992; the hearing before the Cantonal Court was held on 3 May 1994, 18 months after the applicant’s appeal of 4 November 1992.

47. Finally, the Commission points out that in R. B. v. Switzerland (loc. cit.), the applicant’s sentence had been reduced twice by the judicial authorities, on account of the length of the proceedings, from 24 months to 21 months, and then to 16 months' imprisonment, whereas in the present case, despite the fact that the length of proceedings had been considered as a mitigating circumstance, the applicant’s sentence was increased from 16 months, suspended, to 24 months’ imprisonment.

48. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

CONCLUSION

49. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

M.-T. SCHOEPFER E. BUSUTTIL

Secretary    Acting President

to the Commission of the Commission