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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 15668/89

K.

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 14 October 1992)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I: STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . 3

PART II: SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by K. against Switzerland on

14 August 1989. It was registered on 23 October 1989 under file

No. 15668/89.

The applicant was represented by Mr. E. Pfister, a lawyer

practising at Lachen.

The Swiss Government were represented by their Deputy Agent,

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

Section of the Federal Office of Justice.

2. On 6 December 1991 the Commission declared the application

admissible insofar as it related to the applicant's complaint under

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

proceedings.

3. On 30 March 1992 the Commission referred the application, insofar

as declared admissible, to the Second Chamber.

4. The Commission (Second Chamber) then proceeded to carry out its

task under Article 28 para. 1 of the Convention which provides as

follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an

examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human

Rights as defined in this Convention."

5. The Commission (Second Chamber) found that the parties had

reached a friendly settlement of the case and on 14 October 1992 it

adopted this Report, which, in accordance with Article 28 para. 2 of

the Convention, is confined to a brief statement of the facts and of

the solution reached.

6. The following members were present when the Report was adopted:

MM. G. JÖRUNDSSON, Acting President of the Second Chamber

S. TRECHSEL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J. GEUS

PART I

STATEMENT OF THE FACTS

7. The applicant, a Swiss citizen born in 1949, is a businessman

residing at Pfäffikon in Switzerland.

8. On 22 January 1985 the applicant was driving on the motorway from

Zürich to Pfäffikon when two police officers drove up behind him. As

he was driving so slow as to raise suspicion, they followed him when

he left the motorway; he then disregarded a traffic sign, whereupon

they stopped him.

9. The applicant underwent a breathalyser test. This proved to be

positive, and criminal proceedings were instituted against him. On

29 April 1985 the Höfe District Court (Bezirksgericht) convicted the

applicant of disregarding a traffic sign, but acquitted him of the

offence of driving under the influence of alcohol.

10. Upon the Public Prosecutor's appeal, the Cantonal Court

(Kantonsgericht) of the Canton of Schwyz decided on 14 May 1987 to

terminate the proceedings with regard to the offence of disregarding

a traffic sign. On the other hand, it convicted the applicant of

driving under the influence of alcohol and sentenced him to a fine of

1,500 SFr.

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

(staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht)

dismissed on 10 December 1987. The applicant was notified of the

decision on 16 December 1987. The written reasons of the decision,

numbering sixteen pages, were served on the applicant on

24 February 1989.

12. Before the Commission the applicant alleged a violation of

Article 6 para. 1 of the Convention by virtue of the length of the

proceedings in particular before the Federal Court.

PART II

SOLUTION REACHED

13. Following the decision on the admissibility of the application,

the Commission (Second Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

14. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

15. Following an exchange of letters through the intermediary of the

Chamber Secretary, the applicant submitted on 27 July 1992, and the

Deputy Agent on 28 July 1992, the following agreement reached between

the parties:

"DECLARATION"

"1. The Swiss Confederation will make an ex gratia payment of

1,000 SFr as compensation for all damages and the costs and

expenses incurred by the applicant in Switzerland and in

Strasbourg as a result of the facts which gave rise to the

introduction of Application No. 15668/89 before the

European Commission of Human Rights;

2. This payment does not in any way constitute recognition by

the Confederation of any violation of the provisions of the

European Convention on Human Rights;

3. In view of the undertaking referred to in paragraph 1, the

applicant considers Application No. 15668/89 lodged with

the European Commission of Human Rights, as settled and

undertakes to withdraw it;

4. The applicant also states that he will lodge no other

claims before national or international authorities on the

basis of the facts which gave rise to the introduction of

the said application."

"1. La Confédération suisse verse, à titre gracieux, la somme

de 1,000 F.S. à titre d'indemnité forfaitaire, toutes

causes de préjudice confondues, et y inclus les frais et

dépenses encourus par le requérant en Suisse et Ã

Strasbourg à raison des faits qui ont donné lieu Ã

l'introduction, devant la Commission européenne des Droits

de l'Homme de la requête No. 15668/89;

2. Ce versement ne constitue en aucune manière la

reconnaissance par la Confédération d'une quelconque

violation des dispositions de la Convention européenne des

Droits de l'Homme;

3. Compte tenu de l'engagement mentionné sous chiffre 1., le

requérant considère la requête No. 15668/89 introduite

devant la Commission européenne des Droits de l'Homme comme

réglée et il s'engage à la retirer;

4. Le requérant déclare en outre qu'il ne fera pas valoir

d'autres prétentions devant les autorités nationales ou

internationales à raison des faits qui ont donné lieu Ã

l'introduction de ladite requête."

16. At its session on .. October 1992, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

17. For these reasons, the Commission adopted this Report.

Secretary to the Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G. JÖRUNDSSON)

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K. v. SWITZERLAND

K. v. SWITZERLAND

LEXI