Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 19800/92

R. M. D.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 11 April 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-33) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-32). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 33). . . . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 34-48) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 34). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 35). . . . . . . . . . . . . . . . . . . . .6

C. Article 5 para. 4 of the Convention

(paras. 36-47). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 48). . . . . . . . . . . . . . . . . . . . .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 1965 and resident in

Benglen in Switzerland. He is represented before the Commission by Mr.

Bruno Häfliger, a lawyer practising in Lucerne.

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 relates to the applicant's detention on remand in

various Swiss Cantons. When he filed appeals against his detention,

the courts concerned repeatedly found that the appeal had become

obsolete as he had meanwhile been moved to another Canton. The

applicant complains under Article 5 para. 4 of the Convention that the

courts concerned refused to deal with his appeals.

B. The proceedings

5. The application was introduced on 26 March 1992 and registered

on 6 April 1992.

6. On 17 January 1995 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 28 April 1995

after an extension of the time-limit fixed for this purpose. The

applicant replied on 16 May 1995.

8. On 18 October 1995 the Commission declared the application

admissible.

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

to the parties on 6 November 1995 and they were invited to submit such

further information or observations on the merits as they wished.

However, no further submissions were made.

10. 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

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

12. The text of this Report was adopted on 11 April 1996 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.

13. 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.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. 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

A. The particular circumstances of the case

16. In January 1992 the Lucerne Cantonal Police (Kantonspolizei)

requested the Zurich Cantonal Police to arrest the applicant who was

suspected of having committed a burglary in the Canton of Lucerne. On

13 January 1992 the Zurich Cantonal Police arrested the applicant and

remanded him in custody in Uster in the Canton of Zurich. It appears

that the applicant was suspected of having committed thefts and other

offences in the Cantons of Zurich, Lucerne, Bern and Aargau.

17. On 15 January 1992 the applicant requested his immediate release

from custody. On 17 January 1992 the jurisdiction of the Canton of

Zurich in respect of the applicant's detention on remand ended (aus der

Untersuchungshaft entlassen); on the same day, he was transferred to

the Canton of Lucerne where, still on 17 January 1992, the District

Governor (Amtsstatthalter) of Willisau ordered his detention on remand.

18. On 20 January 1992 the applicant's lawyer telephoned the Willisau

District Prosecutor and requested that he, the lawyer, be appointed as

defence counsel and permitted to see the applicant on 21 January 1992.

The District Prosecutor replied that the applicant would be transferred

on 21 January 1992 to the District Court (Richteramt) of Aarwangen in

the Canton of Bern for further investigations.

19. On 21 January 1992 the District Governor of Willisau confirmed

in writing that the applicant had been transferred to Aarwangen.

20. The applicant's lawyer intended to contest the decision to detain

the applicant in Aarwangen. However, he was told by the Aarwangen

investigating judge on the telephone that the latter had not himself

issued a detention order as the order issued on 17 January 1992 by the

Willisau District Governor was still valid.

21. On 23 January 1992 the applicant filed an appeal (Rekurs) with

the Court of Appeal (Obergericht) of the Canton of Lucerne against the

detention order of 17 January 1992.

22. On 24 January 1992 the applicant was transferred to the Canton

of Glarus as the Glarus investigating judge (Verhörrichter) wished to

question the applicant about a burglary in Glarus. On the same day the

Glarus investigating judge issued a detention order.

23. On 27 January 1992 the Lucerne Court of Appeal struck the appeal

of 23 January 1992 off its list of cases as the applicant had been

transferred to Aarwangen on 21 January 1992 and was no longer detained

in Lucerne; it had therefore to be assumed that the detention order of

17 January 1992 had become obsolete (dahingefallen).

24. On 31 January 1992 the applicant filed a public law appeal

(staatsrechtliche Beschwerde) against the decision of the Court of

Appeal of 27 January 1992.

25. On 3 February 1992 the applicant was transferred from the Canton

of Glarus to the Canton of St. Gallen.

26. On 12 February 1992 the Federal Court (Bundesgericht) dismissed

the applicant's public law appeal. The decision stated inter alia:

"The view can reasonably be maintained that the Court of

Appeal no longer need consider the merits of an appeal against

a detention order if the detention in the Canton of Lucerne ends

during the appeal proceedings, either because the accused is

released or because he is detained in another Canton and the

detention on remand in the Canton of Lucerne becomes obsolete.

The Federal Court has proceeded in a similar manner. Thus,

disregarding exceptional cases, (the Federal Court) will regard

as obsolete and strike off its list an appeal against detention

if the applicant has been released during the Federal Court

proceedings ... The explanation for this case-law lies in the

fact that in such a case there is no longer a present practical

interest in a decision on the appeal against detention, not even

in respect of any claims for compensation and satisfaction ...

These considerations may also be applied to cantonal appeal

proceedings. The applicant can still maintain in any subsequent

compensation proceedings that he was unlawfully arrested in the

Canton of Lucerne."

"Es lässt sich mit sachlichen Gründen die Ansicht

vertreten, das Obergericht müsse einen Haftrekurs nicht mehr

materiell behandeln, wenn die Haft im Kanton Luzern während der

Hängigkeit des Rekursverfahrens beendet wird, sei es durch

Freilassung des Angeschuldigten oder durch dessen Inhaftierung

in einem anderen Kanton, mit welcher die Untersuchungshaft im

Kanton Luzern dahinfällt. Das Bundesgericht geht in analoger

Weise vor, schreibt es doch - abgesehen von Ausnahmefällen -

eine Haftbeschwerde als gegenstandslos geworden ab, wenn der

Beschwerdeführer während der Hängigkeit des bundesgerichtlichen

Verfahrens aus der Haft entlassen wird ... Es begründet diese

Rechtsprechung damit, es bestehe in einem solchen Fall kein

aktuelles praktisches Interesse mehr an der Behandlung der

Haftbeschwerde, und zwar auch nicht im Hinblick auf die

Geltendmachung von Schadenersatz- und Genugtuungsansprüchen ...

Diese Überlegung lässt sich auch auf ein kantonales

Rekursverfahren übertragen. Der Beschwerdeführer kann noch in

einem allfälligen Entschädigungsverfahren geltend machen, er sei

im Kanton Luzern zu Unrecht verhaftet worden."

27. Insofar as the applicant complained that the authorities, by

conducting a sort of collection-procedure (Sammelverfahren), deprived

him of his constitutional and Convention rights, the Court found that

it would have been preferable if the Willisau District Prosecutor had

declared in writing that the applicant was no longer detained in the

Canton of Lucerne. However, this could not change the conclusion that

the contested decision of the Lucerne Court of Appeal raised no issue

under Article 5 para. 4 of the Convention, "as the applicant already

when filing his appeal was no longer remanded in custody in the Canton

of Lucerne" ("weil sich der Beschwerdeführer bereits bei Einreichung

des Rekurses nicht mehr im Kanton Luzern in Untersuchungshaft befand").

28. Finally, the Court declared inadmissible the applicant's

complaint that he had not been officially represented by a lawyer, as

this matter had not been the subject of the appeal proceedings before

the Court of Appeal.

29. On 21 February 1992 the applicant was transferred from the Canton

of St. Gallen to the Canton of Schwyz where he continued to be detained

on remand.

30. His request for release from detention in the Canton of Schwyz

of 24 February 1992 was rejected on 25 February 1992.

31. On 25 February 1992 the applicant was taken from the Canton of

Schwyz to the Canton of Zurich.

32. On 3 March 1992 the applicant was transferred to the Canton of

Aargau. Subsequently, he was taken back to the Canton of Zurich. He

was released from detention on 13 March 1992.

B. Relevant domestic law

33. According to Section 64 para. 3 of the Swiss Federal Constitution

(Bundesverfassung). "the organisation of the courts, the judicial

procedure and the jurisdiction falls ... to the Cantons" ("die

Organisation der Gerichte, das gerichtliche Verfahren und die

Rechtsprechung verbleiben ... den Kantonen"). Accordingly, each Canton

continues to apply its own Code of Criminal Procedure

(Strafprozessordnung).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

34. The Commission has declared admissible the applicant's complaint

that the courts concerned did not deal with his appeal against his

detention on remand.

B. Point at issue

35. The point at issue is whether there has been a violation of

Article 5 para. 4 (Art. 5-4) of the Convention.

C. Article 5 para. 4 (Art. 5-4) of the Convention

36. The applicant complains that the Lucerne Court of Appeal and the

Federal Court did not deal with his appeal against his detention on

remand, as he was no longer detained in the Canton of Lucerne.

According to the applicant, he was never formally released from

detention in the Canton of Lucerne. This collection-procedure which

moves the applicant from one Canton to another, deprives him of his

rights under Article 5 para. 4 (Art. 5-4) of the Convention which

states:

"Everyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings by which the lawfulness of

his detention shall be decided speedily by a court and his

release ordered if the detention is not lawful."

37. The respondent Government recall that each Canton has its own

Code of Criminal Procedure, and that the powers of the Swiss courts

generally comply with the requirements of Article 5 para. 4 (Art. 5-4)

of the Convention.

38. According to the Convention organs' case-law, it must be

determined in the light of the circumstances of each case whether a

person's right under Article 5 para. 4 (Art. 5-4) of the Convention to

a speedy decision by a court on the lawfulness of his detention has

been complied with (see Eur. Court H.R., Sanchez-Reisse v. Switzerland

judgment of 21 October 1986, Series A no. 107, p. 20, para. 55).

39. In the present case, the Willisau District Governor ordered the

applicant's detention on 17 January 1992. Against the detention order

the applicant filed an appeal on 23 January 1992 with the Court of

Appeal of the Canton of Lucerne. However, on 27 January 1992 the Court

of Appeal struck the appeal off its list of cases as the applicant had

meanwhile been transferred to the Canton of Berne and was therefore no

longer detained in the Canton of Lucerne. Upon the applicant's public

law appeal, this decision was upheld by the Federal Court on

12 February 1992.

40. In these proceedings, the applicant was not, therefore, able to

obtain a decision on the lawfulness of his detention on remand.

41. Subsequently, the applicant remained in detention, albeit in six

different Cantons. Thus, from the Canton of Berne he was transferred

on 24 January 1992 to the Canton of Glarus. On 3 February 1992 he was

transferred to the Canton of St. Gallen. On 21 February 1992 the

applicant was transferred to the Canton of Schwyz. On 25 February 1992

he was transferred to the Canton of Zurich. On 3 March 1992 he was

transferred to the Canton of Aargau. Subsequently, the applicant was

again returned to the Canton of Zurich where on 13 March 1992 he was

released from detention.

42. The Commission recalls that if the applicant, after his transfer

to another Canton, had filed a complaint about his detention on remand,

he could reasonably have expected that the domestic authorities would

again have dismissed his appeal on the ground that he had meanwhile

been transferred to another Canton. In the Commission's opinion, the

applicant could not be expected to file further appeals in other

Cantons, and the application could not, therefore, be declared

inadmissible for non-exhaustion of domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention (see below, page 13).

43. According to the Convention organs' case-law, the Convention is

intended to guarantee, not rights that are theoretical or illusory, but

rights that are practical and effective (see Eur. Court H.R., Artico

v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33).

44. In the present case, it is not disputed that the applicant had

the possibility in each Canton to file a request to be released from

detention. However, his right to obtain a speedy decision on the

lawfulness of his detention within the meaning of Article 5 para. 4

(Art. 5-4) of the Convention remained illusory in view of the domestic

courts' case-law according to which a request for release from

detention is struck off the list of cases once the applicant is no

longer within the jurisdiction of the particular Canton.

45. It is true that this situation arises on account of the federal

structure of the Swiss Confederation which, as the Government have

pointed out, implies, inter alia, that each Canton has its own Code of

Criminal Procedure.

46. In the Commission's opinion, however, these circumstances cannot

justify the applicant being deprived of his rights under Article 5

para. 4 (Art. 5-4) of the Convention. Indeed, it is for the State to

discharge the obligations which it has contracted under the Convention.

Thus, if the authorities concerned find it necessary continuously to

transfer the applicant during his detention from one Canton to another,

it is for the State to set up its judicial system so as to enable the

courts to comply with the requirements under Article 5 para. 4

(Art. 5-4) of the Convention (see, mutatis mutandis, Eur. Court H.R.,

Martins Moreira v. Portugal judgment of 26 October 1988, Series A

no. 143, p. 21, para. 60).

47. The applicant was, therefore, deprived of his right to take

proceedings by which the lawfulness of his detention was decided by a

court within the meaning of Article 5 para. 4 (Art. 5-4) of the

Convention.

CONCLUSION

48. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 5 para. 4 (Art. 5-4) of the

Convention.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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R.M.D. v. SWITZERLAND

R.M.D. v. SWITZERLAND

LEXI