Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Applications Nos. 20231/92, 20545/92,

23117/93 and 23223/94

W. S.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 16 January 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1

A. The applications

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

B. The proceedings

(paras. 5-13) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 14-18). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-72) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 19-71). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 72). . . . . . . . . . . . . . . . . . . . 10

III. OPINION OF THE COMMISSION

(paras. 73-136). . . . . . . . . . . . . . . . . . . . 11

A. Complaints declared admissible

(para. 73). . . . . . . . . . . . . . . . . . . . 11

B. Points at issue

(para. 74). . . . . . . . . . . . . . . . . . . . 11

C. As regards Article 5 para. 3 of the Convention

(paras. 75-105) . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 106) . . . . . . . . . . . . . . . . . . . 16

D. As regards Article 5 para. 4 of the Convention

(paras. 107-115). . . . . . . . . . . . . . . . . 16

CONCLUSION

(para. 116) . . . . . . . . . . . . . . . . . . . 18

E. As regards Article 5 para. 5 of the Convention

(paras. 117-119). . . . . . . . . . . . . . . . . 18

CONCLUSION

(para. 120) . . . . . . . . . . . . . . . . . . . 18

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

(paras. 121-131). . . . . . . . . . . . . . . . . 18

CONCLUSION

(para. 132) . . . . . . . . . . . . . . . . . . . 20

G. Recapitulation

(paras. 133-136). . . . . . . . . . . . . . . . . 20

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATIONS. . . . . . 21

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 applications

2. The applicant is a Swiss citizen, born in 1942 and currently

detained in Colmar in France. He is represented before the Commission

by Ms. B. Hug, a lawyer practising in Zurich.

3. The applications are directed against Switzerland. The

respondent Government are represented by their Deputy Agent,

Mr. Ph. Boillat, Head of the European Law and International Affairs

Section of the Federal Office of Justice.

4. The case concerns the length of the applicant's detention on

remand; the delays of the authorities in dealing with his requests for

release from detention; his request for damages; and the length of the

criminal proceedings in which he was involved. The applicant invokes

Article 5 paras. 3, 4 and 5 as well as Article 6 para. 1 of the

Convention.

B. The proceedings

5. Application No. 20231/92 was introduced on 14 May 1992 and

registered on 26 June 1992.

6. Application No. 20545/92 was introduced on 18 August 1992 and

registered on 25 August 1992.

7. Application No. 23117/93 was introduced on 20 September 1993 and

registered on 17 December 1993.

8. Application No. 23223/94 was introduced on 30 December 1993 and

registered on 10 January 1994.

9. On 29 June 1994 the Commission (Second Chamber) joined the

applications and, pursuant to Rule 48 para. 2 of its Rules of

Procedure, gave notice of the four applications to the respondent

Government who were invited to submit observations in writing on their

admissibility and merits.

10. The Government's observations were submitted on 31 October 1994,

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

applicant replied on 2 December 1994. Then the applicant submitted

further observations on 13 April 1995 and the Government replied

thereto on 22 May 1995.

11. On 28 June 1995 the Commission declared the applications

admissible.

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

to the parties on 19 July 1995 and they were invited to answer further

questions put by the Commission. The applicant replied on 8 August

1995 and the Government responded on 4 September 1995.

13. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, 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

14. 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

15. The text of this Report was adopted on 16 January 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.

16. 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.

17. The Commission's decision on the admissibility of the

applications is annexed hereto.

18. 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

1. Applicant's arrest and detention on remand

19. On 2 November 1984 the investigating judge (Untersuchungsrichter)

of the Ering and Gundis Districts in the Canton of Valais issued a

warrant of arrest against the applicant on suspicion of theft of a car.

The preliminary investigations against the applicant were eventually

extended to over 100 offences, inter alia theft and robbery.

20. On 31 August 1985 a certain R. was arrested. Subsequently, R.

incriminated the applicant as having been an accomplice. Following

R.'s statements, investigations were undertaken in Italy which proved

unsuccessful.

21. On 5 March 1986 the applicant was arrested in Lausanne in

Switzerland. On 12 March 1986 the investigating judge of the Ering and

Gundis Districts ordered his detention on remand. On the same day the

investigating judge addressed a circular to all Swiss banks which

referred to the offences of which the applicant and R. were suspected.

22. In the ensuing proceedings the applicant refused to express

himself on the charges brought against him.

23. Upon the request of the District Prosecutor (Bezirksanwaltschaft)

of the Canton of Zurich, the applicant was brought to Zurich on

5 November 1986 in order to be confronted with a witness. As from

6 November 1986 the applicant was detained at Regensdorf prison in the

Canton of Zurich where he served the remainder of a sentence of

initially eight and a half years' imprisonment pronounced by the Zurich

Court of Appeal (Obergericht) in 1972.

24. On 22 February 1988 the applicant escaped from Regensdorf prison.

He was later convicted of having committed armed robbery and other

offences in the Canton of Jura. An international warrant of arrest was

issued against him in respect of the proceedings in the Canton of

Valais. On 30 June 1989 he was arrested in La Gomera on the Canary

Islands, and on 23 January 1990 he was extradited to Switzerland where

he was subsequently remanded in custody in the Canton of Valais.

25. On 1 March 1990 the applicant was confronted with the co-accused

R. who denied having committed a criminal offence with the applicant.

R.'s statements, made in Italian, were not translated. The applicant

unsuccessfully filed two requests for a renewed confrontation in the

presence of an interpreter.

26. On 29 May 1990 the authorities of the Canton of Jura instituted

criminal proceedings against the applicant on suspicion inter alia of

theft and robbery.

27. On 28 July 1990 the applicant filed with the investigating judge

of the Ering and Gundis Districts an application for release from

detention on remand. On 6 September 1990 he complained to the Valais

Cantonal Court (Kantonsgericht) about the delay in the examination of

his application. His application for release was dismissed by the

investigating judge on 10 September 1990 and, upon appeal, by the

Cantonal Court on 22 October 1990.

28. The applicant then filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht).

29. Meanwhile, on 22 November 1990 the investigating judge informed

the Federal Court that the applicant had on the same day been

transferred to the Canton of Jura. However, on 20 December 1990 the

Indictment Chamber of the Cantonal Court of the Canton of Jura decided

to adjourn the proceedings against the applicant in order to clarify

issues arising from the applicant's extradition, in particular its

extension to the proceedings in the Canton of Jura. On

29 December 1990 the applicant was again transferred to the Canton of

Valais.

30. On 9 January 1991 the Federal Court partly dismissed the

applicant's public law appeal insofar as it concerned the length of his

detention on remand. The Court agreed in particular with the

investigating judge and the Cantonal Court that there was a serious

suspicion that the applicant had committed the offences at issue, and

that the danger of his absconding had clearly been established as he

had escaped seven times since 1972. Insofar as R. had stated that he

had not committed the offences together with the applicant, the Court

noted that the applicant was renowned for changing his appearances.

The Federal Court further found that detention on remand of so far

25 months was not yet excessive if compared with the sentence which the

applicant might expect. Nevertheless the Court advised the cantonal

authorities to speed up the investigation.

31. On the other hand, the Court upheld the applicant's public law

appeal in respect of his complaint under Article 5 para. 4 of the

Convention, namely that whereas the applicant had filed his application

for release from detention on 28 July 1990, the investigating judge had

only dealt with it on 10 September 1990. However, this breach of

Article 5 para. 4 of the Convention did not in the Court's view imply

that the applicant's detention was unlawful, since it had just upheld

the reasons therefor, namely the suspicion of having committed an

offence and the danger of absconding.

32. On 15 February 1991 the investigating authorities questioned the

applicant.

33. On 25 February 1991 the investigating judge of the Ering and

Gundis Districts requested the Spanish authorities to extend the

extradition of the applicant to further offences.

34. On 4 August 1991 the applicant filed his second application for

release which the investigating judge of the Ering and Gundis Districts

dismissed on 8 August 1991, the decision being sent to the applicant's

representative on 9 August 1991. On 19 August 1991 the applicant filed

an appeal with the Cantonal Court. On 20 August 1991 the applicant's

lawyer fetched the decision of 9 August at the post office. On

21 August 1991 the applicant supplemented his appeal of 19 August, in

particular by contesting the decision of 9 August. In his supplement,

he stated that the decision of 9 August "was only received, in view of

a postal error, on 20 August 1991".

35. While his appeal was pending, the applicant was transferred on

30 August 1991 to the Canton of Jura.

36. On Friday, 13 September 1991, the Cantonal Court of the Canton

of Valais dismissed the applicant's appeal as it was no longer

competent to examine his applications for release from detention. The

decision was served on Monday, 23 September 1991 on the applicant's

lawyer who fetched it at the post office on 27 September 1991.

37. On 28 October 1991 the applicant filed a public law appeal with

the Federal Court in which he complained that there had been no speedy

decision by a court on his application for release from detention, and

of a breach of his right to be tried within a reasonable time.

38. While the public law appeal was pending, the investigating judge

of the Canton of Jura decided on 12 November 1991 to suspend the

applicant's detention on remand in the Canton of Jura, whereupon the

applicant was again transferred to the Canton of Valais.

39. The Federal Court dismissed the applicant's public law appeal on

27 November 1991, the decision being served on 2 December 1991. It

found that detention on remand of so far 33 months was justified and

that a period of 22 days, i.e. from 22 August until 13 September 1991,

for the examination of his application for release complied with the

requirements under the Convention. In this respect the Court noted in

particular that the applicant was himself responsible for the fact that

the decision of 8 August 1991 was only served on him on 20 August 1991.

40. In its decision the Federal Court further admonished the

authorities of the Canton of Valais that they should avoid any further

delay, if necessary not await further information from the Spanish

authorities, and conclude the criminal proceedings as soon as possible.

41. On 24 December 1991 the investigating judge wrote to the Federal

Office of Police Affairs (Bundesamt für Polizeiwesen), asking the

Office to intervene with the Spanish authorities in respect of his

request to extend the extradition to further offences. On

3 February 1992 the investigating judge wrote directly to the Swiss

ambassador in Madrid who in his reply of 10 February referred to delays

on the part of the Spanish authorities.

42. The applicant's third application for release, filed on

1 May 1992, was dismissed by the investigating judge of the Ering and

Gundis Districts on 5 May 1992. On 22 May 1992 the Cantonal Court of

the Canton of Valais dismissed the applicant's further appeal.

43. On 22 May 1992 the investigating judge fixed a time-limit of

60 days for the Public Prosecutor's Office and the applicant to provide

supplementary evidence (Beweisergänzung); he referred in particular to

delays on the part of the Spanish authorities, and recalled that the

time-limit only concerned those 105 offences in respect of which

extradition had been authorised.

44. The applicant filed a public law appeal in which he again

complained that there had been no speedy decision by a court on his

application for release from detention, and that his right to be tried

within a reasonable time had been breached.

45. Meanwhile, on 1 June 1992 the applicant attempted to commit

suicide; he also refused to drink and eat. On several occasions he was

brought to the medical department of the prison.

46. On 31 July 1992 the Federal Court dismissed the applicant's

public law appeal. The Court found that both the investigating judge

and the Cantonal Court had examined his application for release with

sufficient speed. The Federal Court noted in particular the steps

undertaken by the investigating judge between 24 December 1991 and

22 May 1992. Moreover, the length of the applicant's detention on

remand did not yet correspond to the expected length of sentence if the

applicant was convicted. However, the Court noted a certain delay in

respect of investigations conducted by the Spanish authorities. The

decision continues:

"At present it cannot yet be said that there is a breach of the

right enshrined in Article 5 para. 3 and Article 6 para. 1 of the

Convention to a trial within a reasonable time. However, it must

be emphasised that the investigation must now be brought to an

end without delay, and regardless of the decision of the Spanish

authorities as to the extension of the extradition. ... Should

the investigations not be concluded until the end of

September 1992, the question could then be asked in the light of

the obligation to accelerate proceedings whether the length of

detention must not be considered as being excessive."

"(Es) kann im heutigen Zeitpunkt noch nicht gesagt werden, der

in Art. 5 Ziff. 3 und 6 Ziff. 1 EMRK vorgesehene Anspruch auf

Aburteilung innerhalb einer angemessenen Frist sei verletzt. Es

ist jedoch festzuhalten, dass die Untersuchung nun unverzüglich

zum Abschluss gebracht werden muss, und zwar ohne Rücksicht auf

den Entscheid der spanischen Behörde über die Ergänzung der

Auslieferung. ... Sollte das Untersuchungsverfahren nicht bis

Ende September 1992 abgeschlossen sein, so könnte sich dannzumal

die Frage stellen, ob die Haftdauer unter dem Gesichtspunkt des

Beschleunigungsgebots nicht als übermässig bezeichnet werden

müsste."

47. Meanwhile the Indictment Chamber (Anklagekammer) of the Cantonal

Court of the Canton of Jura committed the applicant to trial. The

applicant then filed a request (Gesuch), in the last resort before the

Federal Court, to join the proceedings before the Cantons of Valais and

of Jura and to conduct them before the authorities of the Canton of

Jura.

48. The Federal Court dismissed the request on 1 September 1992,

finding that a joinder would prolong the proceedings pending in the

Canton of Jura.

2. Indictment

49. On 10 September 1992 the investigating judge of the Ering and

Gundis Districts terminated the investigations and on 16 September 1992

the Public Prosecutor filed the indictment.

50. On 22 September 1992 the President of the Ering and Gundis

District Court invited the applicant to submit before 15 October 1992

any evidence which he wished to produce at the trial which was

provisionally fixed for 16 and 17 November 1992.

51. On 4 October 1992 the applicant requested prolongation of the

time-limit and adjournment of the trial in view of the trial in the

Canton of Jura scheduled for November 1992. The applicant also filed

his fourth application for release from detention. The application for

release from detention was dismissed on 6 October 1992 by the President

of the District Court and on 17 November 1992 by the Cantonal Court of

the Canton of Valais.

52. The applicant then filed a public law appeal with the Federal

Court, raising complaints under Articles 5 para. 1 and 6 para. 1 of the

Convention.

53. Meanwhile, on 30 October 1992 the applicant was transferred to

the Canton of Jura where on 30 November 1992 the Jura Criminal Court

sentenced him to 12 years' imprisonment inter alia for robbery and

theft. The applicant filed an appeal against this judgment to the

Court of Cassation of the Cantonal Court. In his appeal he also

challenged all the judges of the Court of Cassation as a result of

which an extraordinary court was constituted.

54. As from 31 December 1992 the applicant was again remanded in

custody in the Canton of Valais.

3. Trial

55. The trial before the Ering and Gundis District Court was

eventually fixed for 29 March 1993.

56. Meanwhile, on 9 February 1993 the Federal Court dismissed the

applicant's public law appeal. It considered that so far the

applicant's detention had lasted 45 months, if the seven months spent

in detention in Spain awaiting extradition were included. On the other

hand, it was not necessary to consider whether the further five months

spent in detention in the Canton of Jura had to be taken into

consideration, as claimed by the applicant, because even a period of

50 months was not yet excessive.

57. The Federal Court referred here in particular to the judgment of

the European Court of Human Rights in the case of W. v. Switzerland

(Eur. Court H.R., judgment of 26 January 1993, Series A No. 254), in

which the opinion expressed by the Commission in its Report of

10 September 1991 (ibid. pp. 30 et seq.) had not been confirmed. It

could not yet be said that the length of detention came close to the

sentence to be expected. Moreover, the investigating judge had indeed

complied with the time-limit of September 1992 fixed in the Federal

Court's decision of 31 July 1992. While certain delays had occurred,

these could be explained by the fact that the investigating judge had

awaited the decision of the Spanish authorities to deal with a request

to extend the scope of the extradition before closing the

investigation. The decision continued:

"If it is considered that the case is complex, that the applicant

refused from the beginning to make a statement, that particularly

in the final stages the investigating judge very much tried to

speed up the proceedings, and that the trial has meanwhile been

fixed for 29 March 1993, it cannot be said that the detention at

issue is excessive."

"Wird berücksichtigt, dass es sich um eine komplexe Sache

handelt, dass der Beschwerdeführer von Anfang an die Aussage

verweigerte, dass sich der Instruktionsrichter vor allem in der

letzten Phase sehr darum bemühte, das Verfahren speditiv

voranzutreiben, und dass die Hauptverhandlung nun auf den

29. März 1993 angesetzt ist, so kann die hier in Frage stehende

Haft nicht als übermässig bezeichnet werden."

58. The trial was held on 29 March 1993 and lasted six hours.

59. On 31 March 1993 the Ering and Gundis District Court convicted

the applicant of over 100 offences, inter alia robbery, theft and

damage to property, and sentenced him to 13 years' imprisonment. The

judgment, mentioning 23 private parties, numbered 98 pages. In view

of the conviction by the Jura Criminal Court which had not yet become

final, the sentence was pronounced subject to Section 350 of the Penal

Code. According to this provision, if a person is convicted of

different offences by different courts, the court which has pronounced

the most severe punishment shall determine the entire punishment

(Gesamtstrafe).

4. Appeal proceedings

60. The applicant appealed against this judgment to the Cantonal

Court of the Canton of Valais.

61. On 24 June 1993 the applicant filed his fifth application for

release from detention with the Cantonal Court. It was dismissed on

5 July 1993 by the President of the Cantonal Court.

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

with the Federal Court on 4 August 1993. He contested in particular

that there was a serious suspicion of his having committed the offences

since the former co-accused and witness R. had clearly stated that he,

R., had not committed any criminal offences together with the

applicant.

63. On 24 August 1993 the Federal Court dismissed the applicant's

appeal. It found that in view of the applicant's conviction the

cantonal authorities could reasonably suspect the applicant of having

committed the offences at issue. With reference to its decision of

9 February 1993 the Court found no indication that the Ering and Gundis

District Court had delayed the proceedings, in particular the trial and

the conviction.

64. On 29 October 1993 the applicant asked the Cantonal Court of the

Canton of Valais to fix a date for the appeal hearing. On

2 November 1993 the Cantonal Court decided to adjourn the appeal

hearing until the Court of Appeal of the Canton of Jura had ruled on

the applicant's appeal against the conviction of 30 November 1992.

65. On 9 November 1993 the applicant filed his sixth application for

release with the Cantonal Court. On 19 November 1993 he filed a

complaint with the Federal Court about a delay in the decision of the

Cantonal Court. On 24 November 1993 the Cantonal Court of the Canton

of Valais dismissed his request.

66. His public law appeal of 27 November 1993, in which he complained

under Article 5 para. 3 of the Convention of the length of his

detention, and under Article 6 para. 1 of the Convention of the length

of the proceedings, was dismissed by the Federal Court on

21 December 1993. The Court noted that Article 5 para. 3 of the

Convention no longer applied to the applicant's detention as he had

been convicted in first instance. On the other hand, the Court found

that the adjournment of the appeal proceedings before the Cantonal

Court could make the length of the applicant's detention excessive and

it held that detention would have to be terminated if no date for the

appeal hearing was fixed. In respect of the applicant's complaint

under Article 5 para. 4 of the Convention the Court found that the

period of thirteen days, commencing on the day when the applicant's

application for release of 9 November 1993 was received and ending on

24 November 1993 when the Cantonal Court decided, was not excessive.

67. The appeal hearing before the Cantonal Court of the Canton of

Valais took place on 30 May and 1 June 1994.

68. On 1 June 1994 the Cantonal Court pronounced its judgment. It

partly upheld the applicant's appeal in that he was acquitted of

certain offences, inter alia of damage to property. On the other hand,

the Court convicted him of altogether 95 offences and sentenced him to

ten and a half years' imprisonment, the detention on remand to be

deducted therefrom.

69. On 7 September 1994 the applicant filed a public law appeal with

the Federal Court in which he complained inter alia of a breach of his

right to a fair hearing, of the arbitrary application of cantonal law,

and of the arbitrary appreciation of evidence. He also requested his

release from detention on remand. The applicant furthermore filed a

plea of nullity (Nichtigkeitsbeschwerde).

70. On 17 November 1994 the Federal Court dismissed the public law

appeal in a judgment numbering 33 pages. On the same day it also

dismissed the applicant's plea of nullity. The Federal Court's

decisions were served on one lawyer of the applicant on

20 December 1994; the other lawyer received them on 21 December 1994.

71. The applicant's request for the reopening of the Federal Court

proceedings was dismissed by the Federal Court on 7 March 1995.

B. Relevant domestic law

72. According to Section 139a of the Federal Judiciary Act

(Organisationsgesetz), the Federal Court may reopen proceedings if the

European Court of Human Rights or the Committee of Ministers of the

Council of Europe has found in an application a breach of the

Convention and if such reopening can bring about restitution (wenn ...

eine Wiedergutmachung durch Revision möglich ist).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

73. The following complaints were declared admissible:

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

applicant's complaint about the length of his detention on remand;

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

applicant's complaint about the delays of the authorities in dealing

with his requests for release from detention;

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

applicant's complaint that he was not entitled to damages; and

- under Article 6 para. 1 (Art. 6-1) of the Convention the

applicant's complaint about the length of the criminal proceedings.

B. Points at issue

74. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 5 para. 3

(Art. 5-3) of the Convention;

- whether there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention;

- whether there has been a violation of Article 5 para. 5

(Art. 5-5) of the Convention; and

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

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

75. The applicant complains of the length of his detention. He

relies on Article 5 para. 3 (Art. 5-3) of the Convention which states:

"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. Release may be conditioned by

guarantees to appear for trial."

1. Period to be considered under Article 5 para. 3 (Art. 5-3)

of the Convention

76. The applicant contends that the period to be examined under

Article 5 para. 3 (Art. 5-3) of the Convention does not end on the date

when he was convicted in first instance. Rather, it lasted until 1

June 1994 when the Cantonal Court of the Canton of Valais dealt with

his appeal. Moreover, while the applicant was detained at Regensdorf

prison in the Canton of Zurich, he was actually at the disposal of the

authorities of the Canton of Valais. As a result, the period to be

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

five years, two months and 15 days.

77. The Government submit that the applicant's detention on remand,

lasting seven years and 26 days, commenced on 5 March 1986 and ended

on 31 March 1993, the date of his first instance conviction. However,

certain periods cannot be considered, in particular the period of one

year, three months and 16 days when the applicant served his prison

sentence in Regensdorf; the period of one year, four months and eight

days after he fled on 22 February 1988; the periods when he was

detained in the Canton of Jura, i.e. from 22 November to

20 December 1990 and from 30 August to 12 November 1991, i.e.

altogether three months and 13 days. Effectively, the detention lasted

three years, seven months and 18 days.

78. The Commission observes that the applicant was arrested on

5 March 1986 (see above, para. 21). The period to be considered under

Article 5 para. 3 (Art. 5-3) of the Convention ends on the day on which

the charges brought against the applicant were determined by a first

instance court (see Eur. Court H.R., B. v. Austria judgment of

28 March 1990, Series A, no. 175, p. 14 et seq., paras. 34 et seq.).

In the present case, the Ering and Gundis District Court convicted the

applicant on 31 March 1993 (see above, para. 59).

79. The overall period to be examined is thus seven years and

26 days.

80. However, during this overall period the applicant was not

continuously "detained" for the purpose of Article 5 para. 3

(Art. 5-3). On 6 November 1986 the applicant commenced serving a

sentence for an earlier conviction at the Regensdorf prison. Later,

he escaped. He was arrested in Spain and extradited to Switzerland on

23 January 1990. He was thereafter remanded in custody (paras. 23-24).

81. The total period of interruptions thus amounted to three years,

two months and 17 days. This period must be subtracted from the

overall period of detention of seven years and 26 days (see above,

para. 79).

82. As a result, the period to be examined under Article 5 para. 3

(Art. 5-3) of the Convention is three years, ten months and 9 days.

2. Criteria for assessing the reasonableness of the length of

detention on remand

83. The Commission recalls that it falls in the first place to the

national judicial authorities to ensure that, in a given case, the

pre-trial detention of an accused person does not exceed a reasonable

time. To this end they must examine all the facts arguing for or

against the existence of a genuine requirement of public interest

justifying, with due regard to the principle of the presumption of

innocence, a departure from the rule of respect for individual liberty

and set them out in their decisions on the applications for release.

It is essentially on the basis of the reasons given in these decisions

and of the true facts mentioned by the applicant in his appeals, that

the Convention organs are called upon to decide whether or not there

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

84. The persistence of reasonable suspicion that the person arrested

has committed an offence is a condition sine qua non for the validity

of the continued detention, but, after a certain lapse of time, it no

longer suffices; the Convention organs must then establish whether the

other grounds cited by the judicial authorities continue to justify the

deprivation of liberty. Where such grounds are "relevant" and

"sufficient", the Convention organs must also ascertain whether the

competent national authorities displayed "special diligence" in the

conduct of the proceedings; the applicant's conduct is also relevant

in this respect (see Eur. Court H.R., Neumeister v. Austria judgment

of 27 June 1968, Series A no. 8, p. 37, paras. 4-5; W. v. Switzerland

judgment of 26 January 1993, Series A no. 254-A, p. 15, para. 30; Van

der Tang v. Spain judgment of 13 July 1995, Series A no. 326,

para. 55).

3. Reasons given by the domestic authorities

85. The Commission has first examined the reasons given by the Swiss

authorities when prolonging the applicant's detention on remand. The

applicant contests that there was a suspicion that he had committed a

criminal offence within the meaning of Article 5 para. 1 (c) (Art.

5-1(c)) of the Convention.

86. The Government submit that the applicant's detention on remand

complied with the requirements under Article 5 para. 3 (Art. 5-3) of

the Convention. Undoubtedly the applicant was suspected of having

committed many offences, and there was clearly a danger of fleeing.

87. The Commission notes that the Swiss authorities suspected the

applicant of having committed over 100 offences, inter alia theft and

robbery (see above, para. 19).

88. Moreover, the Swiss authorities could reasonably assume a danger

of absconding in view of the fact that the applicant had escaped seven

times from prison between 1972 and 1991 (see the Federal Court's

decision of 9 January 1991, above para. 30).

4. Complexity of the case

89. The Commission has next examined the complexity of the case. The

applicant contests that the case was complex as the investigating judge

undertook only one investigative act between 1986 and the trial in

1993, namely on 1 March 1990. The applicant also submits that the

offences with which he was charged in the bill of indictment of

16 September 1992 dated back to the years 1984, 1985 and 1986.

90. The Government submit that the case was extremely complex,

involving over 100 offences.

91. The Commission observes that a great number of charges -

concerning over 100 offences - were brought against the applicant.

Investigations were undertaken throughout Switzerland and also in Italy

(see above, paras. 20-21).

92. A confirmation herefor can be seen in the ensuing judgment of the

Ering and Gundis District Court of 31 March 1993 which numbered 98

pages (see above, para. 59). Certain offences were committed while the

criminal investigations were pending and the applicant had escaped from

prison (para. 24). The Commission also notes that the Federal Court

in its decision of 9 February 1993 referred to the complexity of the

case (paras. 56-57).

93. As a result, the Commission considers that the case was complex.

However, this complexity cannot in itself serve to justify the length

of the applicant's detention on remand.

5. Applicant's conduct

94. The Commission must now examine whether the applicant's conduct

contributed towards the duration of his detention on remand. The

applicant submits that he behaved correctly during the proceedings,

doing nothing which would have complicated them. Lodging a remedy was

a right which could not justify a delay.

95. The Government contend that from the beginning the applicant

refused to cooperate with the authorities. He contributed to the

length of the proceedings by filing various appeals.

96. As regards the applicant's lack of cooperation, the Commission

considers that it was for the investigating authorities to establish

the facts. The applicant as an accused person could not be expected

to contribute towards the investigations.

97. As regards the various appeals filed by the applicant, the

Commission recalls that applications for release from detention on

remand do not justify delay in bringing an accused to trial (see

No. 8118/77, Schertenleib v. Switzerland, Comm. Report 11.12.80, D.R.

23 p. 199). Indeed, as a result of the applicant's appeals, the

Federal Court on three occasions - in its decisions of 9 January and

27 November 1991 and of 31 July 1992 (see above, paras. 30, 39 and

46) - urged the authorities of the Canton of Valais to speed up the

investigations.

98. On the other hand, in 1992 the applicant went on a hunger strike

(para. 45). To a limited extent, therefore, the applicant himself

contributed to the length of his detention on remand.

6. Conduct of the authorities

99. The applicant points out that the investigating judge stated in

October/November 1986 that the investigations were about to be

concluded.

100. The Government submit that the authorities pursued the case with

particular diligence: the Federal Court carefully dealt on four

occasions with the applicant's complaints. In its decision of

9 January 1991 it saw no indications that the proceedings would not be

duly conducted, though it instructed the investigating authorities to

terminate the investigations as soon as possible. In its decision of

27 November 1991 the Federal Court instructed the authorities to

continue with the investigations if necessary without awaiting

information from the Spanish authorities. On 31 July 1992 the Federal

Court considered the conduct of the investigating judge.

101. The Commission notes that domestic authorities conducted the

investigations as follows:

- in 1986 ordering investigations in Italy and distributing a

circular to all Swiss banks (see above, para. 21);

- in 1986 ordering the applicant's transfer from the Canton of

Valais to Zurich to be confronted with a witness and later to

serve a prison sentence there (para. 23);

- in 1988 preparing an international warrant of arrest after he

fled to Spain (para. 24);

- on 1 March 1990 confronting the co-accused R. with the applicant

(para. 25);

- on 15 February 1991 questioning the applicant (para. 32);

- on 25 February 1991 requesting an extension of extradition from

the Spanish authorities (para. 33); further requests were made

on 24 December 1991 and 3 February 1992 (para. 41);

- on 22 May 1992 issuing a time-limit for the submission of further

evidence (para. 43);

- from 22 September 1992 until 29 March 1993 preparing and

conducting the trial (paras. 50 and 55).

102. As a result, various periods of inactivity in 1990, 1991 and 1992

transpire which have not been accounted for by the respondent

Government.

103. It is true that in a case such as the present one which involved

difficult elements of fact, time must also be allowed for studying the

case-file and the successive additions to it, for preparing

interrogations and for issuing requests for evidence. Time must also

be allowed for the routine work which the judge does in his Chamber.

All these elements will only indirectly be reflected in the procedural

documents (see Schertenleib v. Switzerland, Comm. Report, loc. cit.,

p. 198).

104. Nevertheless, even if due account is taken of such activities,

which are not reflected in the procedural documents, the Commission

considers that they cannot justify the periods when the authorities did

not pursue the case.

7. General assessment

105. The complexity of the case alone cannot justify the length of

detention on remand. On the other hand, the applicant's conduct caused

to a limited extent a delay in the case coming to trial. Nevertheless,

having regard to the overall length of the investigations and to the

fact that the authorities do not appear to have at all times acted with

the necessary diligence and expedition, the Commission finds that there

was not a sufficient justification for the continuation of the

detention during the whole period at issue. Consequently, the

detention on remand exceeded a "reasonable time" within the meaning of

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

CONCLUSION

106. The Commission concludes, unanimously, that there has been a

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

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

107. The applicant complains of delays in dealing with his

applications for release from detention on remand. The applicant

refers to the second application filed on 4 August 1991; the fifth

application filed on 24 June 1993; and the sixth application filed on

9 November 1993. The applicant relies on Article 5 para. 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."

108. The applicant submits that his application filed on 4 August 1991

was not dealt with by the Cantonal Court until 13 September 1991, i.e.

after 39 days. His application of 24 June 1993 was only dealt with by

the Cantonal Court of the Canton of Valais after ten days on

5 July 1993. The Cantonal Court did not determine his application for

release of 9 November 1993 until 24 November 1993.

109. The Government submit in respect of the request filed on

4 August 1991 that the applicant is only complaining about the

proceedings before the Cantonal Court, not the Federal Court. The

applicant was responsible for the fact that the decision of the

investigating judge of 8 August only reached him on 20 August 1991.

The Cantonal Court, which received his appeal on 22 August, decided

within 22 days on 13 September 1991. In the Government's opinion, the

applicant is complaining that the system established by the Code of

Criminal Procedure of the Canton of Valais as such is contrary to

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

provision does not exclude that administrative proceedings precede the

judicial proceedings.

1. Applications of 24 June and 9 November 1993

110. As regards the applications for release filed on 24 June and

9 November 1993, the Commission notes that these applications were

filed after the applicant was convicted by the Ering and Gundis

District Court on 31 March 1993 (see above, para. 59). The Commission

recalls that detention on remand within the meaning of Article 5

paras. 1 (c) and 3 (Art. 5-1,-c, 5-3) of the Convention ends on the day

when the charges brought against the applicant are determined by a

first instance court (see Eur. Court H.R., B. v. Austria judgment of

28 March 1990, Series A no. 175, p. 14 et seq., paras. 34 et seq.).

Thereafter, the supervision of the lawfulness of detention is

incorporated in the judicial decision imposing lawful detention after

conviction by the competent court. In the present case, Article 5

para. 4 (Art. 5-4) was therefore observed in that the applicant's

sentence was pronounced after conviction by the competent court within

the meaning of Article 5 para. 1 (a) (Art 5-1,-a) of the Convention

(see Eur. Court H.R., Iribarne Pérez v. France judgment of

24 October 1995, Series A no. 325-C, para. 30; De Wilde, Ooms and

Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 40,

para. 76). He was therefore no longer entitled to the procedure

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

2. Application of 4 August 1991

111. As regards the application for release filed on 4 August 1991,

the Commission recalls that the requirement in Article 5 para. 4

(Art. 5-4) of the Convention of a "speedy decision" must be determined

in the light of the circumstances of each case and cannot be determined

in the abstract (see Eur. Court H.R., Sanchez-Reisse judgment of

21 October 1991, Series A no, 107, p. 20, para. 55). Moreover, if in

such proceedings a State introduces two or more levels of jurisdiction,

the State must in principle accord the same guarantees on appeal as at

first instance (see Eur. Court H.R., Navarra judgment of

23 November 1993, Series A no. 273-B, p. 28, para. 28).

112. In the present case, the applicant's request for release was

filed with the investigating judge on 4 August 1991; the Federal

Court's final decision was given on 27 November 1991, the decision

being served on 2 December 1991 (see above, para. 39). The period to

be examined under Article 5 para. 4 (Art. 5-4) of the Convention thus

lasted three months and 28 days.

113. The Commission notes that the investigating judge dismissed the

request within four days on 8 August 1991 (see above, para. 34). One

month and 19 days then lapsed until 27 September 1991 when the second

instance court decision was served on the applicant (see above,

para. 36). Two months lapsed after 2 October 1991, when the applicant

filed his public law appeal with the Federal Court, until

2 December 1991, when the Federal Court's decision was served on the

applicant (see above, paras. 37 and 39).

114. The Commission observes that the applicant's request was dealt

with before three courts. Moreover, the matters raised in the

applicant's request appeared comparatively complex. Thus, when

considering the necessity of the applicant's detention on remand, the

authorities had to assess investigations regarding over 100 offences

(see above, para. 19). Moreover, as the Federal Court's decision of

27 November 1991 indicates, the authorities were also confronted with

issues relating to the applicant's extradition from Spain (see above,

para. 40).

115. In undertaking the "overall assessment" required in such cases

(see Eur. Court H.R., Navarra v. France judgment, loc. cit., p. 28,

para. 28), the Commission considers that the period at issue complied

with the notion of a speedy decision within the meaning of Article 5

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

CONCLUSION

116. The Commission concludes, unanimously, that there has been no

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

E. As regards Article 5 para. 5 (Art. 5-5) of the Convention

117. Under Article 5 para. 5 (Art. 5-5) of the Convention the

applicant complains that he was not entitled to damages. This

provision states:

"Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

118. The Commission has found that the applicant has been the victim

of detention contrary to Article 5 para. 3 (Art. 5-3) of the Convention

(see above, para. 106). According to the Convention organs' case-law,

Article 5 para. 5 (Art. 5-5) of the Convention is complied with where

it is possible to apply for compensation in respect of a deprivation

of liberty effected in conditions contrary to paragraphs 1-4 of

Article 5 (see Eur. Court H.R., Wassink judgment of 27 September 1990,

Series A no. 185-A, p. 14, para. 38).

119. In the present case, the applicant's claims appear premature.

Thus, if the European Court of Human Rights or the Committee of

Ministers of the Council of Europe eventually find a breach of one of

the provisions of paras. 1-4 of Article 5, the applicant will have the

possibility of filing with the Swiss authorities a claim for

compensation based on Article 5 para. 5 (Art. 5-5) of the Convention

(see No. 10313/83, dec. 12.7.84, Eggs v. Switzerland, D.R. 39 p. 225,

at p. 226/227). Moreover, Swiss law, in particular Section 139a of the

Federal Judiciary Act, expressly envisages the possibility of reopening

domestic proceedings if the Convention organs have found a breach of

the Convention in order to remedy the situation (see above, para. 72).

CONCLUSION

120. The Commission concludes, unanimously, that there has been no

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

F. As regards Article 6 para. 1 (Art. 6-1) of the Convention

121. The applicant complains of the length of the criminal proceedings

instituted against him. He relies on Article 6 para. 1 (Art. 6-1) of

the Convention which states, insofar as relevant:

"In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

..."

122. The applicant points out that, although he requested the joining

of the proceedings in the Cantons of Jura and of Valais, they were

conducted separately which led to delays.

123. The applicant submits that the period to be examined commenced

on 2 November 1984 when the warrant of arrest was issued against the

applicant. The Federal Court's decisions dated from 17 November 1994.

Thus, the entire proceedings lasted more than ten years. He can only

be made responsible for the period of 16 months when he fled. He

cannot be blamed for having made use of regular remedies.

124. The applicant contends that the proceedings could not have been

complex, as the Public Prosecutor was able to file the indictment

within six days after the investigating judge terminated the

investigations on 10 September 1992. Moreover, only one private party

actually turned up at the trial. The separate criminal proceedings in

the Canton of Jura did not concern the proceedings in the Canton of

Valais. Indeed, the investigating judge declared as early as

October/November 1986 that the proceedings were about to be terminated.

On the other hand, the proceedings in the Canton of Jura only commenced

on 29 May 1990.

125. The Government submit that the period to be examined under this

provision commenced on 5 March 1986 when the applicant was arrested.

It ended with the decision of the Cantonal Court of the Canton of

Valais of 1 June 1994. The Government contend that this period

complied with the requirements under Article 6 para. 1 (Art. 6-1) of

the Convention.

126. The Government contend that the proceedings were of a certain

complexity. There were 23 civil parties participating in the criminal

proceedings against the applicant, and the decision of the Ering and

Gundis District Court of 31 March 1993 numbered 98 pages. Moreover,

separate criminal proceedings were conducted against the applicant in

the Canton of Jura. Indeed, for nearly two years after he fled he was

not at the disposal of the investigating authorities. The applicant

contributed to the length of the proceedings by refusing to cooperate

with the authorities and by employing all means to contest their

decisions. On the other hand, the Federal Court confirmed that there

was no indication that the authorities did not diligently pursue the

case.

127. In the Government's opinion, even assuming that the period to be

examined under Article 6 para. 1 (Art. 6-1) of the Convention ended on

17 November 1994 when the Federal Court dismissed the applicant's

public law appeal and plea of nullity, the period was not unduly long.

Thus, the Federal Court decided only a few months after the applicant

had filed his appeals.

128. The Commission considers that the period to be examined under

Article 6 para. 1 (Art. 6-1) of the Convention concerns the entire

length of the proceedings, ending with the final domestic decision.

In the present case the period to be examined commenced on

2 November 1984 when a warrant of arrest was issued against the

applicant (see above, para. 19), and ended on 20 December 1994, when

the Federal Court's decisions were served on one of the applicant's

lawyers (para. 70). The period thus lasted altogether ten years, one

month and 18 days. It was interrupted when the applicant fled to

Spain, i.e. for a period of one year, eleven months and one day from

22 February 1988 until 23 January 1990 (para. 24).

129. The period to be examined under Article 6 para. 1 (Art. 6-1) of

the Convention thus amounts to eight years, two months and 17 days.

130. 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 complexity of the

case, the conduct of the applicant and the conduct of the authorities

dealing with the case. In the present case the circumstances call for

an overall assessment (see Eur. Court H.R., Ficara judgment of

19 February 1991, Series A no. 196-A, p. 9, para. 17).

131. The Commission, referring to its above findings as to the

complexity of the case and the limited contribution of the applicant

to the length of the proceedings (paras. 93 and 98), finds that the

Government have not, in the light of all circumstances in the case,

sufficiently explained the length of the investigations against the

applicant. The charges against the applicant have not, therefore, been

determined within a reasonable time.

CONCLUSION

132. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

G. Recapitulation

133. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 3 (Art. 5-3) of the Convention (see above,

para. 106).

134. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 4 (Art. 5-4) of the Convention (see above,

para. 116).

135. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 5 (Art. 5-5) of the Convention (see above,

para. 120).

136. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention (see above,

para. 132).

Secretary to the Second Chamber President of the Second Chamber

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

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W.S. v. SWITZERLAND

W.S. v. SWITZERLAND

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