Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23857/94

André Plumey

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 8 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-41) 3

III. OPINION OF THE COMMISSION

(paras. 42-53) 6

A. Complaint declared admissible

(para. 42) 6

B. Point at issue

(para. 43) 6

C. Article 5 para. 3 of the Convention

(paras. 44-52) 6

CONCLUSION

(para. 53) 7

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 8

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Swiss citizen, born in 1928 and resident at Sisseln in

Switzerland. He is represented before the Commission by Mr P. Zihlmann, a

lawyer practising in Basel.

3. The application is directed against Switzerland. The respondent

Government are represented by Mr Ph. Boillat, Head of the European Law and

International Affairs Section of the Federal Office of Justice, Agent.

4. The case concerns the applicant's complaints that Public Prosecutor F.H.

remanded him in custody and later indicted him. The applicant invokes Article 5

para. 3 of the Convention.

B. The proceedings

5. The application was introduced on 10 March 1994 and registered on 12 April

1994.6. On 16 January 1996 the Commission (Second Chamber) decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application

to the respondent Government and to invite the parties to submit written

observations on its admissibility and merits.

7. The Government's observations were submitted on 9 April 1996. The

applicant replied on 7 May 1996.

8. On 3 September 1996 the case was transferred from the Second Chamber to

the Plenary Commission, by decision of the latter.

9. On 9 September 1996 the Commission declared the application admissible.

10. The text of the Commission's decision on admissibility was sent to the

parties on 18 September 1996 and they were invited to submit such further

information or observations on the merits as they wished. However, no further

submissions were made.

11. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, also placed itself at the

disposal of the parties with a view to securing a friendly settlement. In the

light of the parties' reaction, the Commission now finds that there is no basis

on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of

Article 31 of the Convention and after deliberations and votes, the following

members being present:

Mrs. G.H. THUNE, Acting President

Mr. S. TRECHSEL

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENI?

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELI?NAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 8 April 1997 by the Commission and

is now transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach

by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is

annexed hereto.

16. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

17. In 1986 the Public Prosecutor's Office (Staatsanwaltschaft) of the Canton

of Basel-Stadt instituted criminal proceedings against the applicant who was

suspected of having committed various economic offences. As the applicant was

abroad, the First Public Prosecutor (Erster Staatsanwalt) issued an

international warrant of arrest on 19 June 1989, whereupon the applicant was

arrested in Rio de Janeiro and extradited to Switzerland.

18. On 4 July 1989, immediately upon his return to Switzerland, the applicant

was arrested. On the same day he was brought before F.H., the Acting Public

Prosecutor (Leitender Staatsanwalt) who remanded him in custody

(Sicherheitshaft).

19. The subsequent prolongations of the applicant's detention on remand until

24 October 1990 were ordered, with one exception, by F.H.

20. On 23 October 1990 the Court handed down its judgment in the case of Huber

v. Switzerland (Eur. Court HR, Series A no. 188).

21. On 26 October 1990 the First Public Prosecutor prolonged the applicant's

detention. Against this decision the applicant filed an appeal, referring to

the Court's judgment in the Huber case, in that the First Public Prosecutor had

prolonged his detention on remand.

22. The appeal was dismissed on 8 November 1990 by the Indictment Chamber

(Überweisungsbehörde) of the Canton of Basel-Stadt. The Chamber found, inter

alia, that it was not yet in possession of the Court's judgment in the Huber v.

Switzerland case; and that in any event the issue did not arise in proceedings

concerning prolongation of detention on remand, though it could become relevant

at a later stage of the proceedings.

23. Against this decision the applicant filed a public law appeal

(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).

24. On 14 December 1990 the applicant was released on bail from detention on

remand.

25. On 21 December 1990 the Federal Court struck the applicant's public law

appeal off its list of cases as the applicant had meanwhile been released from

detention.

26. On 29 November 1991 Acting Public Prosecutor F.H. announced the intention

of the Public Prosecutor's Office to indict the applicant inter alia of

professional fraud, forging of documents and negligent bankruptcy. It was also

stated that the applicant had a time-limit of 10 days to file a complaint.

27. On 3 December 1991 the applicant challenged F.H., as he had signed the

letter of 29 November 1991, while previously having ordered his detention on

remand. The letter was headed: "Threat of a breach of Article 5 paras. 3 and 4

of the Convention".

28. In reply to the letter of 3 December 1991, F.H. wrote to the applicant on

4 December 1991 that he himself intended to indict the applicant.

29. On 7 January 1992 the applicant complained to F.H. that the bill of

indictment had still not been prepared, and that further delays could no longer

be tolerated. The letter was headed: "Here: failure to indict".

30. On 14 July 1992 the applicant was indicted of various economic offences.

The bill of indictment was signed by F.H.

31. On 21 July 1992 the applicant complained to the President of the Criminal

Court (Strafgericht) of the Canton of Basel-Stadt that the indictment breached

Article 5 para. 3 of the Convention. He submitted in particular that F.H. could

not represent the prosecution as he had previously ordered prolongation of the

applicant's detention on remand.

32. On 26 January 1993 the President of the Criminal Court dismissed the

complaint on the ground, inter alia, that it was belated. The applicant had not

until 21 July 1992, during the trial, filed a challenge against the Public

Prosecutor concerned. However, he should have filed a complaint after the

judgment in the case of Huber v. Switzerland had been pronounced, at the latest

after the announcement of 4 December 1991.

33. The applicant's appeal against this decision was rejected on 9 March 1993

by the Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt. The

applicant's public law appeal was rejected on 14 May 1993 by the Federal Court.

34. The applicant's renewed challenge of Public Prosecutor F.H. was dismissed

by the Criminal Court on 24 June 1993.

35. On 6 August 1993 the Court of Appeal dismissed his further appeal.

36. In its decision, the Court considered that there had been a breach of

Article 5 para. 3 of the Convention in that F.H. had first remanded the

applicant in custody and then indicted him. According to the Federal Court's

case-law, such a complaint could be raised upon indictment. However, the

applicant, who had been aware as from 4 December 1991 that F.H. would indict

him, had waited over half a year until 21 July 1992 when he had formally

challenged F.H.

37. The applicant filed a public law appeal in which he pointed out inter alia

that he had referred to the issue already on 30 October 1990, i.e. immediately

after the Court's judgment in the case of Huber v. Switzerland had become known.

38. The public law appeal was dismissed by the Federal Court on 4 October

1993, the decision being served on 20 October 1993.

39. In its decision the Court considered that in the present case Article 5

para. 3 of the Convention had "indirectly" been breached, as F.H. had first

imposed detention on remand on the applicant and had later prepared the bill of

indictment. The applicant could, therefore, successfully have challenged F.H.

However, the Court recalled its case-law according to which good faith required

that a civil servant (Beamter) was challenged as early as possible. In the

present case the Court noted that the applicant had challenged F.H. on 21 July

1992. Already on 4 December 1991 the applicant had been informed that F.H.

would indict him. Indeed, on 3 December 1991 the applicant had written to the

Public Prosecutor's Office and challenged F.H. However, after the information

of 4 December 1991 he failed immediately to file a challenge with the Criminal

Court or to react otherwise. On the contrary, on 7 January 1992 he wrote to

F.H. and urged him as soon as possible to prepare the bill of indictment,

without challenging F.H.; thus, the applicant had actually accepted F.H. as

Public Prosecutor. It breached good faith, therefore, if the applicant

challenged F.H. as long as half a year later.

40. The trial commenced on 11 October 1993. The Prosecution was represented

by the First Public Prosecutor.

41. On 22 December 1993 the Criminal Court of the Canton of Basel-Stadt

sentenced the applicant to seven and a half years' imprisonment.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

42. The Commission has declared admissible the applicant's complaint under

Article 5 para. 3 (Art. 5-3) of the Convention that Public Prosecutor F.H.

remanded him in custody and later indicted him.

B. Point at issue

43. The point at issue is whether there has been a violation of Article 5

para. 3 (Art. 5-3) of the Convention.

C. Article 5 para. 3 (Art. 5-3) of the Convention

44. The applicant complains that Public Prosecutor F.H. remanded him in

custody and later indicted him. The Federal Court, while accepting a breach of

Article 5 para. 3 (Art. 5-3) of the Convention, nevertheless assumed that he had

belatedly invoked his right under this provision. The applicant relies on

Article 5 para. 3 (Art. 5-3) of the Convention which states, insofar as

relevant:

"Everyone arrested or detained in accordance with the provisions of

paragraph 1 (c) of this Article shall be brought promptly before a judge or

other officer authorised by law to exercise judicial power and shall be entitled

to trial within a reasonable time or to release pending trial ..."

45. The applicant points out that in his letter of 3 December 1991 he

challenged F.H. This challenge was never withdrawn. In his letter of 7 January

1992 he complained that there had still not been an indictment, and that a

further delay could no longer be tolerated. The applicant requested "an

indictment", but not "an indictment by F.H.". Thus, it cannot be said that he

did not contest the letter of F.H. of 4 December 1991.

46. The Government do not contest that in the present case there has been a

violation of Article 5 para. 3 (Art. 5-3) of the Convention. However, it is

submitted that the applicant waived his right under this provision in that he

did not challenge F.H. when he became aware that the latter would represent the

prosecution. Thus, before the Huber judgment, the applicant merely complained

of the length of his detention on remand; only thereafter did the applicant

request another member of the Public Prosecutor's Office to represent the

prosecution. When on 4 December 1991 F.H. informed the applicant that he

himself intended to indict the applicant, the latter on 7 January 1992 merely

complained of the length of the delay of the indictment. Only on 21 July 1992

did the applicant formally challenge F.H. However, the applicant should have

done so as soon as he became aware of the possibility that F.H. would act as

prosecutor, i.e. after he received F.H.'s letter on 4 December 1991.

47. According to the Convention organs' case-law, the Convention does not rule

out the possibility that the "officer" referred to in Article 5 para. 3 (Art. 5-

3) of the Convention orders the detention and also carries out other duties.

However, his impartiality is capable of appearing open to doubt if he is

entitled to intervene in the subsequent criminal proceedings as a representative

of the prosecuting authority (see Eur. Court HR, Huber v. Switzerland judgment

of 23 October 1990, Series A no. 188, p. 18, para. 43).

48. It is not in dispute between the parties that such a situation arose in

the present case. Thus, on 4 July 1989 F.H., the Acting Public Prosecutor,

remanded the applicant in custody, and on 14 July 1992 F.H. signed the bill of

indictment against the applicant (see above, paras. 18 and 30).

49. With regard to the Government's argument that there has been a waiver, the

Commission recalls that a waiver, in order to be effective, must be made in an

unequivocal manner and must not run counter to any important public interest

(see Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June 1993,

Series A no. 263, p. 19, para. 58).

50. In the present case, the Commission need not examine whether a waiver

would have run counter to any important public interest. It notes that the

applicant did indeed challenge F.H., the Acting Public Prosecutor, on 3 December

1991, i.e. one day before F.H. announced his intention to act for the

prosecution (see above, paras. 27f).

51. In the Commission's opinion, the applicant could, therefore, reasonably

consider that he had made his point of view clear to the authorities, and that

it was unnecessary for him again to react when F.H. informally told him one day

later that he, F.H., would represent the prosecution. Besides, the applicant

was entitled to wait until the indictment against him had been formally issued.

When the bill of indictment was eventually issued on 14 July 1992, the applicant

again duly filed a complaint with the Criminal Court of the Canton of Basel-

Stadt (see above, paras. 30f).

52. It cannot, therefore, be said that the applicant unequivocally waived his

rights under Article 5 para. 3 (Art. 5-3) of the Convention.

CONCLUSION

53. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.

H.C. KRÜGER G.H. THUNE

Secretary Acting President

to the Commission of the Commission

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PLUMEY v. SWITZERLAND

PLUMEY v. SWITZERLAND

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