Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 18905/91

R. B.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 24 May 1995)

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 - 38) . . . . . . . . . . . . . . . . . . . .3

A. Investigations against the applicant

(paras. 16 - 22). . . . . . . . . . . . . . . . . .3

B. Proceedings before the Uri Regional Court

(paras. 23 - 24). . . . . . . . . . . . . . . . . .3

C. Proceedings before the Court of Appeal of the Canton of Uri

(paras. 25 - 27). . . . . . . . . . . . . . . . . .4

D. Proceedings before the Federal Court

(paras. 28 - 31). . . . . . . . . . . . . . . . . .4

E. Proceedings before the Court of Appeal of the Canton of Uri

(paras. 32 -33) . . . . . . . . . . . . . . . . . .4

F. Proceedings before the Federal Court

(paras. 34 - 36). . . . . . . . . . . . . . . . . .5

G. Applicant's plea for pardon

(paras. 37 - 38). . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 39 - 61) . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 39). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 40). . . . . . . . . . . . . . . . . . . . .6

C. Alleged violation of Article 6 para. 1 of the Convention

(paras. 41 - 60). . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 61). . . . . . . . . . . . . . . . . . . . .8

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . .9

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 10

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, a Swiss citizen born in 1944, resides at Gunzwil

in Switzerland.

3. The application is 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 applicant's complaint under Article 6

para. 1 of the Convention about the length of criminal proceedings.

B. The proceedings

5. The application was introduced on 1 February 1991 and registered

on 4 October 1991.

6. On 31 March 1993 the Commission 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 17 June 1993.

The applicant replied on 28 August 1993.

8. On 30 November 1994 the Commission declared the application

admissible.

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

on 14 December 1994 to the parties who were invited to submit further

observations. The Government's observations were submitted on

7 February 1995, and the applicant submitted his observations on

11 February 1995.

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:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

12. The text of this Report was adopted on 24 May 1995 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. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

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. Investigations against the applicant

16. In 1977/78 various companies, which the three S. brothers had

founded in the Canton of Uri, merged with two building firms in the

Canton of Lucerne. The applicant was one of the board members.

17. In February 1981 the Investigating Office (Verhöramt) of the

Canton of Uri instituted criminal investigations against certain

persons of the companies in the Canton of Uri. The investigations were

extended to all companies and the persons involved, eventually also to

the companies in the Canton of Lucerne. Eventually, the investigations

were conducted against 14 persons, concerning 20 companies.

18. Investigations concerning the applicant commenced on

17 February 1982. On 1 March 1982 he was arrested, remanded in custody

and questioned as to various offences; he was released the next day.

19. The applicant was subsequently heard on various occasions. When

questioned on 15 February 1984 he was advised to employ a lawyer. On

16 May 1984 the investigating judge ordered him to obtain legal

representation. As from 25 May 1984 he was represented by a lawyer.

Until the end of 1984 the lawyer was given different parts of the case-

file for consultation as a result of which he submitted various replies

as well as requests for the taking of evidence.

20. As a result of the investigations against the various co-accused

a voluminous case-file was prepared. The list of the case-file

numbered 203 pages and mentioned 3.740 documents, compiled in 20 files.

These documents were the extract of altogether 2.000 files occupying

shelf space of approximately 150 metres.

21. On 25 April 1985 the Investigating Office prepared its final

Report, counting 300 pages and divided into seven chapters and 72 sub-

chapters. The applicant figured as an accused in ten sub-chapters; one

sub-chapter under the heading "defence rights" contained 33 documents

relating to the applicant.

22. On 21 March 1986 the Uri Public Prosecutor's Office (Staatsan-

waltschaft) indicted altogether 14 persons, among them the applicant

who was charged with various economic offences committed in 1976 and

1977. The bill of indictment counted altogether 166 pages. The Public

Prosecutor's Office terminated the proceedings in respect of

21 charges, six of them concerning the applicant.

B. Proceedings before the Uri Regional Court

23. On 12 March 1987 the Uri Regional Court (Landgericht) gave its

judgment, numbering 136 pages, in respect of the 14 co-accused. The

judgment was served on the applicant on 24 July 1987.

24. In its judgment the Court convicted the applicant of repeatedly

and continuously forging documents (wiederholte Urkundenfälschung) and

of continuously obtaining a false registration (Erschleichung einer

falschen Beurkundung). In one instance, the applicant was acquitted

of the offence of fraud and of obtaining a false registration. In

respect of the offence of giving false information about commercial

companies the proceedings were terminated on account of prescription.

The applicant was sentenced to eighteen months' imprisonment, suspended

on probation for three years.

C. Proceedings before the Court of Appeal of the Canton of Uri

25. Both the applicant and the Public Prosecutor's Office appealed

against this judgment.

26. In its judgment of 31 May, 15 June and 29 June 1988 the Court of

Appeal (Obergericht) of the Canton of Uri rejected the applicant's

appeal and partly granted the appeal of the Public Prosecutor's Office.

The Court found that the applicant was guilty of fraud, of repeatedly

and continuously forging documents, and of continuously obtaining a

false registration, and sentenced him to two years' imprisonment.

27. The judgment of the Court of Appeal was served on the applicant

on 21 November 1988.

D. Proceedings before the Federal Court

28. On 7 December 1988 the applicant filed with the Federal Court

(Bundesgericht) a public law appeal (staatsrechtliche Beschwerde) and

a plea of nullity (Nichtigkeitsbeschwerde) in respect of which the

Federal Court gave two decisions on 29 March 1990.

29. In its decision on the applicant's public law appeal, which it

rejected, the Court found in respect of the applicant's complaint under

Article 6 para. 1 of the Convention of the length of the proceedings

that in view of the involvement of over 20 companies and the

concomitant volume of files, and of the altogether fourteen indicted

persons, the length of proceedings lasting slightly more than

seven ears could not be regarded as disproportionate.

30. The Federal Court also rejected the applicant's plea of nullity

insofar as it concerned the grounds leading to his conviction; the plea

of nullity was upheld and the case referred back to the Court of Appeal

insofar as it concerned the applicant's sentence. The Court considered

that the Court of Appeal, when determining the sentence, had not taken

into account that the offences had occurred relatively long ago, and

that the applicant's conduct had since been good.

31. Both decisions were served on the applicant on 19 May 1990.

E. Proceedings before the Court of Appeal of the Canton of Uri

32. Proceedings were resumed before the Court of Appeal of the Canton

of Uri which on 5 July 1990 sentenced the applicant to 21 months'

imprisonment. The judgment was served on 31 August 1990.

33. The Court of Appeal noted that the Federal Court, in its judgment

of 29 March 1990, had found no breach of Article 6 para. 1 of the

Convention in respect of the length of the proceedings. The Court

considered that in its first judgment it had already taken into account

the length of the proceedings. However, following the applicant's

successful plea of nullity to the Federal Court, the Court of Appeal

found that it had insufficiently considered this ground of reduction;

moreover, two more years had elapsed since its first judgment.

F. Proceedings before the Federal Court

34. Against this judgment the applicant filed with the Federal Court

a plea of nullity on 20 September 1990, and a public law appeal on

27 September 1990 which the Federal Court rejected in two decisions on

29 November 1990.

35. In its decision on the plea of nullity the Federal Court

dismissed the applicant's complaints about the length of his prison

sentence. In its decision on the applicant's public law appeal the

Court dismissed his complaints about the proceedings leading to the

Court of Appeal's judgment of 5 July 1990. In respect of his complaint

under Article 6 para. 1 of the Convention about the length of the

proceedings, the Federal Court found that the grounds mentioned in its

decision of 29 March 1990 were not altered by the fact that further

time had elapsed while the case was being reconsidered by the Court of

Appeal.

36. Both decisions were served on the applicant 16 August 1991.

G. Applicant's plea for pardon

37. On 20 February 1992 the applicant filed an application for pardon

(Begnadigungsgesuch). On 8 April 1992 the Parliament (Landrat) of the

Canton of Uri partly granted the application, reducing the sentence to

sixteen months' imprisonment. It took into account the entire length

of the proceedings as well as the fact that a further two years had

elapsed since the second judgment of the Court of Appeal, but

considered that a complete remission of sentence could not be granted,

inter alia as the offences which the applicant had committed were not

negligible.

38. The applicant's public law appeal was rejected by the Federal

Court on 6 July 1992.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his case was not heard within a reasonable time.

B. Point at issue

40. 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 (art. 6-1) of the Convention.

C. Alleged violation of Article 6 para. 1 (art. 6-1) of the

Convention

41. The applicant complains that the criminal proceedings against him

were not terminated within a reasonable time. He relies on Article 6

para. 1 (art. 6-1) of the Convention which includes the following

provision:

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

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

by (a) ... tribunal ..."

42. The Government consider that the proceedings did not attain an

unreasonable length.

a) Period to be considered

43. The Government submit that the relevant period to be considered

under Article 6 para. 1 (art. 6-1) of the Convention started on

1 March 1982 when the applicant was remanded in custody, and ended on

16 August 1991 when the decisions of the Federal Court were served on

the applicant.

44. The applicant submits that from the time when he committed the

offences on 11 August 1976 until the serving of the final decision of

the Federal Court on 16 August 1991, more than fifteen years elapsed.

45. The Commission recalls that the period to be taken into

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

begins at the time when formal charges are brought against a person or

when that person has otherwise been substantially affected by actions

taken by the prosecution authorities as a result of a suspicion against

him (cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A

no. 50, p. 33, para. 75).

46. The Commission notes that, in the course of criminal

investigations instituted against other persons in 1981, the

Investigating Office of the Canton of Uri commenced investigations

against the applicant on 17 February 1982, whereupon on 1 March 1982

he was remanded in custody and questioned as to the offences. The

Commission accepts that the period to be examined under Article 6

para. 1 (art. 6-1) of the Convention commenced on 1 March 1982.

47. The Commission considers that the period ended on 16 August 1991

when the Federal Court's decisions of 29 November 1990 were served on

the applicant.

48. The relevant period therefore lasted nine years, five months and

15 days.

b) Reasonableness of the length of the period to be considered

49. The Government recall that the case was extremely complex. While

the applicant was not the principal co-accused, it must be borne in

mind that in view of the many issues the investigations had to be

conducted against all co-accused. The final report of the

Investigating Office could only be prepared after a detailed

examination of the voluminous file. Between 1987 and 1990 altogether

seven court decisions were taken.

50. The applicant submits that the investigations proved to be too

difficult for the authorities.

51. The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and having regard in particular to the

complexity of the case and the conduct of the applicant and the

relevant authorities (cf. Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

52. At the outset, the Commission considers that the main feature of

the case was its inordinately complex character. Thus, the accusations

raised against the applicant and other persons concerned white collar

crimes, such as forging documents and fraud. Such offences are often

purposely conducted, and were so in this case, by means of complex

transactions in order to escape the control of the investigating

authorities. The investigations were eventually extended to

14 persons, concerning 20 companies, and the case-file eventually

comprised 2.000 files.

53. The Commission further considers that the applicant did not

unreasonably contribute to the overall length of the criminal

proceedings against him.

54. Next, the Commission has examined the conduct of the Swiss

authorities.

55. The Commission notes that, after the applicant was remanded in

custody and questioned on 1 March 1982, the investigations lasted until

25 April 1985, i.e. approximately three years and two months, when the

Investigating Office prepared its final Report. Approximately a

further nine months elapsed until the applicant was indicted on

21 March 1986.

56. While this period appears comparatively long, it is in the

Commission's opinion explained by the particular complexity of the

case. Thus, the final Report of the Investigating Office counted 300

pages, the subsequent bill of indictment 166 pages.

57. The Commission finds that thereafter the authorities conducted

the proceedings with relative speed. Thus, the Uri Regional Court gave

its judgment on 12 March 1987, i.e. approximately one year after the

applicant's indictment. Fifteen months elapsed until the Court of

Appeal of the Canton of Uri gave its judgment of 31 May, 15 June and

29 June 1988, and a further 23 months until the decisions of the

Federal Court of 29 March 1990 were served on 19 May 1990 on the

applicant.

58. Once the Federal Court's judgments had been served on the

applicant, the Court of Appeal of the Canton of Uri gave its judgment

speedily on 5 July 1990. A final thirteen months elapsed until the

decisions of the Federal Court of 29 November 1990 were served on the

applicant on 16 August 1991.

59. In assessing the length of the proceedings, the Commission has

finally considered that the applicant's sentence was reduced from

originally 24 months' to 16 months' imprisonment. Thus, on 5 July 1990

the Court of Appeal of the Canton of Uri reduced the sentence by

three months. On 8 April 1992 the Parliament of the Canton of Uri

reduced the sentence by five months, thereby taking into account the

length of the criminal proceedings instituted against the applicant.

60. Having regard to the particular complexity of the case and to the

fact that the sentence was reduced inter alia as a result of the length

of the proceedings, the Commission finds that there has not been a

violation of the requirement of "reasonable time" referred to in

Article 6 para. 1 (art. 6-1) of the Convention.

CONCLUSION

61. The Commission concludes, by 12 votes to 1, that there has been

no violation of Article 6 para. 1 (art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

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

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

1 February 1991 Introduction of application

4 October 1991 Registration of application

Examination of admissibility

31 March 1993 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

17 June 1993 Government's observations

28 August 1993 Applicant's observations in reply

30 November 1994 Commission's decision to declare

application admissible

Examination of the merits

14 December 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

7 February 1995 Government's further observations

11 February 1995 Applicant's further observations

8 April 1995 Commission's consideration of state of

proceedings

17 May 1995 Commission's deliberations on the merits,

final vote and consideration of text of

the Report

24 May 1995 Adoption of Report

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R.B. v. SWITZERLAND

R.B. v. SWITZERLAND

LEXI