Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 13972/88

I.

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 14 May 1992)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1 - 16) . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

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

B. The proceedings.

(paras. 5 - 11). . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12 - 16) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17 - 50). . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17 - 47) . . . . . . . . . . . . . . . . . . . . 3

a. The applicant's arrest and detention on

remand

(paras. 17 - 18) . . . . . . . . . . . . . . . . . 3

b. Interrogation by the investigating

authorities

(paras. 19 - 33) . . . . . . . . . . . . . . . . . 3

c. Conviction and sentence

(paras. 34 - 39) . . . . . . . . . . . . . . . . . 4

d. Appeal proceedings

(paras. 40 - 47) . . . . . . . . . . . . . . . . . 5

B. Relevant domestic law and practice

(paras. 48 - 50) . . . . . . . . . . . . . . . . . . . . 6

III. OPINION OF THE COMMISSION

(paras. 51 - 71) . . . . . . . . . . . . . . . . . . . . . . 7

A. Complaint declared admissible

(para. 51) . . . . . . . . . . . . . . . . . . . . . . . 7

B. Point at issue

(para. 52) . . . . . . . . . . . . . . . . . . . . . . . 7

C. Compliance with Article 6 paras. 1 and 3 (c) of

the Convention

(paras. 53 - 70) . . . . . . . . . . . . . . . . . . . . 7

D. Conclusion

(para. 71) . . . . . . . . . . . . . . . . . . . . . . .10

DISSENTING OPINION OF MR. A. WEITZEL AND

SIR BASIL HALL, JOINED BY MR. E. BUSUTTIL . . . . . . . . . .11

DISSENTING OPINION OF MRS. G.H. THUNE . . . . . . . . . . . .12

DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . .13

APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .16

APPENDIX II: DECISION ON THE ADMISSIBILITY. . . . . . . . . . .17

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, an Italian citizen born in 1942, is a travelling

salesman. Before the Commission he is represented by Mr. F.C. Fischer,

a lawyer practising in Zurich.

3. The application is directed against Switzerland whose 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 applicant complains under Article 6 paras. 1 and 3 (c) of the

Convention that when he was interrogated by the Zurich investigating

authorities, his lawyer was not always present.

B. The proceedings

5. The application was introduced on 5 May 1988 and registered on

23 June 1988.

6. On 5 February 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

7. The Government's observations were received by letter dated

20 April 1990 and the applicant's observations by letter dated

25 June 1990.

8. On 3 December 1990 the Commission decided to invite the parties

to a hearing.

9. The hearing took place on 31 May 1991. The respondent Government

were represented by their Agent, Mr. Ph. Boillat, Mr. B. Gehrig, judge

at the Court of Cassation of the Canton of Zurich, Mr. V. Lieber, a

Registrar at that court, and Mr. F. Schürmann of the European Law and

International Affairs Section of the Federal Office of Justice. The

applicant was represented by his lawyer, Mr. F.C. Fischer.

10. Following the hearing the Commission declared the application

admissible insofar as it related to the complaint mentioned at para. 4

above and inadmissible as to the remaining complaints.

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

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

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. In the light of the parties'

reaction, the Commission now finds that there is no basis on which such

a settlement can be effected.

C. The present report

12. The present report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

13. The text of this Report was adopted on 14 May 1992 and is now

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

accordance with Article 31 para. 2 of the Convention.

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

Convention, is:

i) to establish the facts, and

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

breach by the State concerned of its obligations under the

Convention.

15. 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.

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

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

a. The applicant's arrest and detention on remand

17. On 2 February 1985 the applicant arrived by plane from Bangkok

at Zurich airport. At the customs control, a certain Giuseppe (later

Giovanni) M. who disembarked from the same plane was found to have

1.385 kg of heroin in his suitcase. When the customs officer asked M.

whether he had a colleague, M. pointed to the applicant. The latter

then explained to the customs officer that he was travelling with a

group. When a search provided no further results, the applicant was

permitted to leave.

18. Following further investigations, a connection was suspected

between M. and the applicant, and a search for him was started. The

applicant was arrested on 2 February 1985 at Lugano on a train to

Italy.

b. Interrogation by the investigating authorities

19. Immediately after his arrest the applicant asked a certain

Mrs. S.C. for help. The latter then contacted Mrs. B.G., a lawyer

(Rechtsanwältin).

20. On 3 February 1985, a Sunday, the applicant was questioned by a

Zurich District Attorney (Bezirksanwalt). The applicant spoke in

Italian and an interpreter was present. The applicant explained inter

alia that he had travelled via Zurich to and from Bangkok as a travel

agent at Barletta in Italy had told him that this was cheaper. By

coincidence, another person of whom he only knew the first name,

Giuseppe, had also booked the same trip at Barletta. On the plane he

had never sat next to Giuseppe. The applicant contested the charge of

having been involved in the importation of drugs into Switzerland. He

also requested an officially appointed lawyer.

21. On 8 February 1985 Mrs. B.G. sent the applicant a letter in which

she offered to represent him. He then signed and returned the enclosed

power of attorney.

22. On 13 February 1985 a police officer questioned the applicant.

The latter explained that while he did not know Giuseppe's family name,

he, the applicant, had been asked to write the family name C. on the

name tag of Giuseppe's suitcase in the train from Milan to Zurich. The

applicant also explained that at Bangkok airport he noticed that the

name C. did not coincide with that person's name in the passport which

was G.

23. The applicant was again heard by a police officer on

15 February 1985. He stated inter alia that he had sat next to

Giuseppe on the flight to Bangkok. In Bangkok he had not been present

when Giuseppe had received a suitcase.

24. On 18 February 1985 a Bülach District Attorney questioned the

applicant who stated that he hoped to be confronted with Giuseppe.

25. On 25 February 1985 Mrs. B.G. resigned as the applicant's

representative. On the same day, the applicant's present lawyer was

officially appointed as his representative.

26. Subsequently the applicant's present lawyer received the

case-file for consultation. By letter of 4 March 1985 he returned the

case-file to the District Attorney's Office.

27. At an interrogation on 8 March 1985 the applicant told the

District Attorney that in the train from Barletta to Zurich Giuseppe

had asked him to sign the name G. in his new passport.

28. In respect of all these interrogations the applicant's officially

appointed lawyer did not ask to be present, nor was the lawyer invited

to be present, though he subsequently received transcripts thereof.

29. On 2 and 3 April 1985 the District Attorney and two police

officers questioned witnesses at Barletta in Italy, in particular two

travel agents.

30. On 9 April 1985 the applicant's lawyer conferred with the

District Attorney. There are different versions as to the content of

this conversation. According to the subsequent decision of the Zurich

Court of Appeal (Obergericht) of 17 January 1986 he was informed that

the applicant would again be questioned on 11 April 1985. According

to the submissions of the applicant's lawyer, he was not informed

thereof; rather, the conversation concerned, inter alia, the

applicant's detention on remand.

31. On 11 April 1985 the applicant was questioned by the District

Attorney and asked to explain certain contradictions in his previous

statements. The applicant contested certain results of the

investigations in Italy. A lawyer was not present.

32. By letter of 17 April 1985 to the District Attorney, the

applicant's lawyer acknowledged receipt of the minutes of the

interrogations of 11 April 1985, as well as the transcript of the

hearing at Barletta on 2 April. The lawyer complained that he had not

been invited to either occasion.

33. On 6 June 1985 a final interrogation took place at the Bülach

District Attorney's Office. The applicant's lawyer was present. The

applicant was informed that the investigations were now closed and that

he had the possibility once again to comment thereupon. The applicant

replied that he had nothing to add, and that he had nothing to do with

the accusations brought against him. The applicant's lawyer made no

comment.

c. Conviction and sentence

34. On 10 June 1985 the Bülach District Attorney's Office indicted

the applicant before the Bülach District Court (Bezirksgericht) for the

offence of importing and transporting drugs. M. was indicted for the

same offence.

35. The trial took place on 26 June 1985. The applicant and his

lawyer were present.

36. On 26 June 1985 the Bülach District Court convicted the applicant

of contravening the Narcotics Act (Betäubungsmittelgesetz) and

sentenced him to seven years' imprisonment as well as 15 years'

expulsion from Switzerland. The co-accused Giovanni (previously

Giuseppe) M. was sentenced to six years' imprisonment. The applicant

and M. were each ordered to pay half of the costs of the proceedings

amounting to 14,543.50 SFr.

37. In its judgment the Court noted in particular that the applicant

had contradicted himself during the various interrogations as to

whether he knew the first and the family name of M.; as to when he had

noticed that the family name G. was not the name C.; and as to the

issue whether he had sat next to M. on the plane. The Court referred

to further contradictions mentioned in the bill of indictment.

38. The District Court considered that in view of these

contradictions the applicant's claim that he was innocent could not be

taken seriously (nicht mehr ernstgenommen werden kann). It considered

that M., who was illiterate, had himself made so many contradictions

that doubts arose as to his mental capacities and that it would have

been impossible for M. to organise such a transport of drugs.

39. The Court noted that M. had told the investigating authorities

upon his last interrogation on 15 May 1985 that it had been the

applicant who had constantly accompanied him and who had told him when

to pick up the suitcase in Bangkok; thus the applicant's function had

been to assist and supervise M. The Court concluded that the applicant

had knowingly and willingly participated in the transport of drugs.

d. Appeal proceedings

40. The applicant filed an appeal (Berufung) against this judgment

to the Zurich Court of Appeal (Obergericht).

41. On 17 January 1986, following an appeal hearing, the Court of

Appeal convicted the applicant of contravening the Narcotics Act and

sentenced him to seven years' imprisonment as well as 15 years'

expulsion from Switzerland. The Court confirmed the imposition of

costs by the District Court and further ordered the applicant to pay

4,786.40 SFr as costs for the appeal proceedings.

42. With regard to the applicant's complaint that his lawyer had not

been present when the applicant was questioned during the

investigations, the Court noted that the lawyer had been informed about

the date of 11 April 1985. Moreover, at the final interrogation on

6 June 1985 where he had been present, he had not asked any questions.

The applicant had failed to show that he had suffered any prejudice

resulting from his lawyer's absence.

43. With regard to the issue of guilt, the Court referred in all

parts to the considerations of the District Court. The Court

considered it extremely unlikely that by pure coincidence two persons,

who did not previously know each other, travelled together from

Barletta in Italy to Zurich, from there to Bangkok, where they stayed

in the same hotel, and back.

44. Against this decision the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) which was dismissed by the Zurich Court of

Cassation (Kassationsgericht) on 8 October 1986.

45. Insofar as the applicant complained that his lawyer was not

present when he was questioned, the Court noted, with reference to the

case-law of the Federal Court (Bundesgericht; see below Relevant

domestic law and practice), that the applicant was not maintaining that

a request had been rejected for unjustified reasons (unsachliche

Gründe). Moreover, the applicant's lawyer had been present on

6 June 1985 as well as at the appeal hearing.

46. The applicant's subsequent public law appeal (staatsrechtliche

Beschwerde) against the decision of the Court of Cassation of

8 October 1986 and the judgment of the Court of Appeal of

17 January 1986 was dismissed by the Federal Court on 5 November 1987.

The decision was served on 13 November 1987.

47. Insofar as the applicant complained that his lawyer was not

present when the applicant was being interrogated, the Federal Court

referred in particular to its case-law concerning Section 17 para. 2

of the Code of Criminal Procedure of the Canton of Zurich (Straf-

prozessordnung; see below Relevant domestic law and practice). The

Court found that the applicant had not complained that a request to be

present had been arbitrarily rejected. The Court noted that the lawyer

had been present when the applicant was interrogated for the last time,

and that the lawyer had received transcripts of the minutes of previous

interrogations. The applicant's rights of defence under the Swiss

Constitution and the Convention had thus not been violated.

B. Relevant domestic law and practice

48. Section 17 para. 2 of the Code of Criminal Procedure of the

Canton of Zurich states that "the investigating officer may permit the

defence counsel to be present when the accused is being questioned in

person" ("der Untersuchungsbeamte kann dem Verteidiger gestatten, den

persönlichen Einvernahmen des Angeschuldigten beizuwohnen").

49. In ATF (Arrêts du Tribunal Fédéral) 104 Ia 17ff the Federal Court

has interpreted this provision as permitting the exclusion of the

lawyer, without any grounds being given, when a suspect is interrogated

for the first time. If the lawyer is excluded on subsequent occasions,

grounds must be given.

50. Section 30 para. 1 of the Code of Criminal Procedure states that

the purpose of the investigation is to determine the facts in order

either to bring an indictment or to terminate the proceedings.

According to para. 2 of Section 30, the evidence must only be compiled

to the extent considered necessary to conduct a trial. According to

Section 162 para. 1 (2), the bill of indictment must determine inter

alia the offences with which the applicant is charged with reference

to all circumstances relevant for the establishment of the offence.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

under Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention

that his lawyer was not always present when he was interrogated by the

Zurich investigating authorities.

B. Point at issue

52. Accordingly, the issue to be decided is whether there has been

a violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the

Convention.

C. Compliance with Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c)

of the Convention

53. Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention

state, insofar as relevant:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing by an ...

impartial tribunal.

3. Everyone charged with a criminal offence has the following

minimum rights:

...

c. to defend himself in person or through legal assistance of

his own choosing or, if he has not sufficient means to pay for

legal assistance, to be given it free when the interests of

justice so require;

..."

54. The applicant complains that, with the exception of 6 June 1985,

his lawyer was not present when the applicant was interrogated by the

investigating authorities. Thus, his lawyer was absent at the

interrogations of 3, 13, 15 and 18 February, 8 March and 11 April 1985.

The applicant who was remanded in custody in the immediate vicinity of

the District Attorney's Office submits that his lawyer was not invited

to be present on these occasions. The applicant disputes in particular

that his lawyer was informed of the interrogation of 11 April 1985.

55. The applicant points out that, while he could freely be visited

by his lawyer, the latter would have been particularly important at

these interrogations in order to explain certain contradictions in the

applicant's statements. He emphasises the relevance of the pre-trial

investigations in the Canton of Zurich, given the fact that at the

trial the establishment of the facts of the case will usually be

regarded as settled. It is not the practice in the Canton of Zurich

individually to invite a lawyer or even to inform him of forthcoming

interrogations. A request for a general permission to be present at

all future interrogations would also not be granted.

56. The Government submit that neither the Convention nor the Swiss

Constitution directly grant a lawyer the right in principle to be

present when the accused is being interrogated during the preliminary

proceedings. With reference to the Can case (Comm. Report 12.7.84,

para. 49, Eur. Court H.R, Series A No. 96, p. 15 et seq.) the

Government consider that Article 6 para. 3 (Art. 6-3) of the Convention

only applies to preliminary proceedings if the latter are of crucial

importance for the proceedings as a whole. This is not the case under

the criminal procedure of the Canton of Zurich.

57. The Government recall that Section 17 para. 2 of the Code of

Criminal Procedure has been interpreted as permitting the District

Attorney to refuse the lawyer to be present, without giving any

grounds, when the accused is being questioned for the first time. At

the subsequent interrogations, reasons must be given for excluding the

lawyer. It is normal practice in the Canton of Zurich that the

District Attorney informs the lawyer of forthcoming interrogations.

While it is true that in the Canton of Zurich such investigations are

of a certain importance for the trial, the Court of Cassation will

certainly uphold a plea of nullity if it is justifiably alleged, for

instance, that evidence which was important for the judgment was not

considered.

58. The Government accept that the applicant, who was detained on

remand in the same building as the District Attorney's Office, asked

for a lawyer to be present at the interrogations. However, in the

Government's opinion the applicant has not claimed that insufficient

grounds were given for refusing a request by the applicant's lawyer to

be present at the interrogations. The lawyer did not ask to be

present. He knew that there would be an interrogation on 11 April 1985

and was present at the interrogation of 6 June 1985.

59. The Commission recalls that the guarantees contained in paragraph

3 of Article 6 (Art. 6) of the Convention are specific aspects of the

general concept of a fair trial set forth in paragraph 1. It will

therefore consider the applicant's complaints from the angle of

paragraph 1 taken together with the principles inherent in paragraph

3 (c).

60. Article 6 para. 3 (c) (Art. 6-3-c) gives the accused the right

to assistance and support by a lawyer throughout the proceedings. To

curtail this right during the investigation proceedings may influence

the material position of the defence at the trial and therefore also

the outcome of the proceedings. In the Artico case the Court stated:

"the Convention is intended to guarantee not rights that are

theoretical or illusory but rights that are practical and

effective; this is particularly so of the rights of the defence

in view of the prominent place held in a democratic society by

the right to a fair trial, from which they derive ... Article 6

para. 3 (c) (Art. 6-3-c) speaks of 'assistance' and not of

'nomination'. Again, mere nomination does not ensure effective

assistance ..." (Eur. Court H,.R., Artico judgment of

13 May 1980, Series A no.37, p. 16, para. 33).

61. Nevertheless, in the absence of an express provision it cannot

be maintained that the rights guaranteed by Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention are not susceptible to any restrictions

(see Can v. Austria, Comm. Report 12.7.84, loc. cit., p. 17 para. 52).

What is important is that, in the proceedings taken as a whole, the

applicant effectively had the benefit of "legal assistance" as required

by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

62. The Commission observes that the investigations served the

purpose of compiling evidence which would determine inter alia the

offences the accused will be charged with at the trial (see above

para. 50). The investigations thus bore directly on the preparation

and conduct of the trial.

63. Between his arrest on 2 February 1985 and his indictment on

10 June 1985, the applicant was questioned by the District Attorney or

a police officer on altogether seven occasions, namely on 3, 13, 15,

and 18 February; on 8 March; on 11 April; and on 6 June 1985.

64. It is also established that upon his first interrogation on

3 February 1985 the applicant requested an officially appointed lawyer.

Thereafter, Mrs. B.G. acted as the applicant's legal representative

until 25 February 1985, subsequently the applicant's present lawyer.

65. During these investigations the applicant, who was remanded in

custody, could freely communicate with his lawyer. The applicant

complains, however, that with the exception of 6 June 1985 no lawyer

was present when he was interrogated.

66. It has not been shown that the District Attorney informed the

lawyer acting for the applicant in advance of these interrogations,

though there is a dispute in this respect as to the interrogation of

11 April 1985 (see above para. 30). On the other hand, verbatim

transcripts of the various interrogations were transmitted to the

respective lawyers each of whom was therefore aware of the content of

the interrogations, and of the possibility that other interrogations

might follow. Nevertheless, it has not been shown that before

17 April 1985 either lawyer found it necessary to inform the District

Attorney of their wish to be present (see para. 32).

67. The applicant's lawyer was also present at the final inter-

rogation on 6 June 1985. On this occasion the applicant was again

confronted with the accusations laid against him. The applicant's

lawyer, who was aware of the questions previously put to the applicant

and the replies given, had the possibility to explain any contra-

dictions and to demonstrate the applicant's innocence. The lawyer

nevertheless did not intervene.

68. Finally, the lawyer was present at the trial on 26 June 1985

where he had the possibility to call in question any conclusions which

the District Attorney drew in the bill of indictment from the state-

ments made by the applicant upon his interrogation.

69. In view thereof and taking the proceedings as a whole, the

Commission does not find that the absence of a lawyer at the

applicant's various interrogations led to a disadvantage which was

likely to influence the material position of the defence at the trial

and therefore also the outcome of the proceedings.

70. It follows that the applicant had a fair trial in this respect

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,

in particular in that he effectively had the benefit of "legal

assistance" as required by Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention.

D. Conclusion

71. The Commission concludes, by 9 votes to 5, that there has been

no violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the

Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

DISSENTING OPINION OF MR. A. WEITZEL AND

SIR BASIL HALL, JOINED BY MR. E BUSUTTIL

We regret that we are unable to agree with the opinion of the

majority of the Commission that there has not been a violation of

Article 6 paras. 1 and 3 (c) of the Convention.

In our view, it has not been shown that the District Attorney

informed either lawyer of the applicant when the applicant was to be

interrogated though there is a dispute in this respect as to the

interrogation of 11 April 1985 (see para. 30 of the Report). It has

equally not been shown that the applicant was told in advance of these

interrogations which would have enabled him to inform his lawyer

thereof. Indeed, according to the parties' submissions, the applicant

was detained in the vicinity of the District Attorney's Office; it was

thus possible to call him up at any time at short notice without his

having the possibility of contacting his lawyer.

The Court in its decision placed considerable reliance on what

the applicant had said during those interrogations (see paras. 37 et

seq. of the Report). The interrogations thus had a direct bearing on,

and were of considerable importance for, the applicant's conviction.

In view of the importance of these interrogations for the outcome

of the trial, and taking the proceedings as a whole, the absence of a

lawyer at all interrogations but one led in our opinion to a

disadvantage which considerably influenced the material position of the

defence at the trial and therefore also the outcome of the proceedings.

It follows in our view that the applicant did not have a fair

trial in this respect within the meaning of Article 6 para. 1 of the

Convention, in particular in that he did not effectively have the

benefit of "legal assistance" as required by Article 6 para. 3 (c) of

the Convention.

DISSENTING OPINION OF MRS. G.H. THUNE

I have voted in favour of finding a violation of

Article 6 paras. 1 and 3 (c) of the Convention, and support the view

expressed by MM. Busuttil and Weitzel and Sir Basil Hall in their

dissenting opinion.

In addition I would emphasise the principle involved, namely the

importance of safeguarding the security and other legal interest of a

person who, following arrest, is left in custody of the police.

In my submission, the right to an effective defence and to the

equality of arms as enshrined in Article 6 paras. 1 and 3 (c) must be

interpreted in such a manner as to give an individual who has been

arrested on suspicion of having committed a crime, access to a lawyer

immediately after the arrest and during the initial interrogations.

DISSENTING OPINION OF MR. L. LOUCAIDES

I am unable to agree with the opinion of the majority that there

has not been a violation of Article 6 paras. 1 and 3 (c) of the

Convention in this case.

After the arrest of the applicant and while he was in custody he

was interrogated on several occasions by the police in respect of the

accusations laid down against him. In answer, he made statements which

contained also contradictions. These contradictions were relied on in

the subsequent judgment of 26 June 1985 by the Bülach District Court

which concluded that in view thereof, it could not accept the

applicant's claim that he was innocent. The interrogations thus had

a direct bearing on the applicant's conviction.

It should also be mentioned that, according to the legal system

of the Canton of Zurich, the relevant investigation which was carried

out at the material time and which included the interrogations in

question was important for the development of the proceedings as a

whole and in particular as regards the preparation and conduct of the

trial itself.

Thus, the confrontations of the applicant by the investigating

authorities amounted to critical stages of the relevant criminal

proceedings as their results might well settle his fate at the trial

itself.

It is clear that in the circumstances of the case the applicant

was, in respect of the above pre-trial stages of the proceedings,

entitled to legal assistance by virtue of the provisions of para. 1 of

Article 6 - regarding the right of a fair hearing - and para. 3 (c) of

the same article - regarding the right of defence through legal

assistance. (cf. Comm. Report 12.7.84, Eur. Court H.R., Series A

No. 96, p. 15 et seq., para. 49).

The right to the aid of counsel is of fundamental character. In

fact, such right plays a crucial role in securing all other rights

guaranteed to an accused person under Article 6 of the Convention.

Many of these rights would have little meaning to the average criminal

defendant without the aid of counsel to protect the rights. More

generally, without legal assistance the accused person may not be in

a position to protect himself from abuses of the state organs that may

adversely affect his defence and his right to a fair trial.

As aptly observed by the U.S. Supreme Court: "Even the

intelligent and educated layman has no skill in the science of law ...

Left without the aid of counsel he may be put on trial without a proper

charge and be convicted upon incompetent evidence ... He lacks both

the skill and knowledge adequate to prepare his defence even though he

have a perfect one. He requires the guiding hand of counsel at every

step in the proceedings against him. Without it, although he may not

be guilty, he faces the danger of conviction because he does not know

how to establish his innocence" (Powell v. Alambama, 287, US. 45 (1932)

pp. 68-69).

The necessity of legal assistance becomes even more vital for an

accused person interrogated by the prosecuting authorities while in

custody as in the case of the present applicant. A custodial

interrogation of this kind is inherently coercive and should therefore

be accompanied by such procedure safeguards for the accused including,

in particular, the right to the presence of his lawyer, so as to

protect the accused from the risk of compelled self-incrimination and

to secure him equality of arms and fair treatment in a setting in which

the prosecutorial forces have the upper hand. The counsel can then

advise the accused whether "to make use of his right of silence or to

make a confession" and "generally assist the accused who by his

detention is removed from his normal environment (see Can v. Austria,

op. cit., paras. 55-56) and is isolated in police custody.

The inherent coercive element of pre-trial custodial

interrogation, which by itself is a threat to the privilege against

compelled self-incrimination, has led the U.S. Supreme Court to rule

that, before such interrogation, the police "must warn the person to

be interrogated that he has the right to remain silent, that any

statement he does make may be used as evidence against him in Court and

that he has a right to consult with a lawyer, either retained or

appointed, and to have the lawyer with him during interrogation".

(Miranda v. Arizona, 384 US 436 at 444, 467-73 (1966)). The Court

based its decision on the Fifth Amendment of the U.S. Constitution

which expressly provides that "no person shall be compelled in any

criminal case to be witness against himself". Such right is not

expressly mentioned in the Convention but, in my view, it is implicit

in the concept of fair trial and the presumption of innocence

guaranteed under Article 6 of the Convention.

The above-mentioned ruling of the U.S. Supreme Court, and in

particular the right to counsel indicated therein in respect of pre-

trial custodial interrogations, appears pertinent to the complaints of

the applicant supported by the facts of the case.

In the light of the above, I find that the applicant had a right

of legal assistance prior to and during the interrogations which per

se were so vital in the relevant criminal proceedings against the

accused that the absence or denial of such rights could presumptively

be considered harmful to the defence of the accused so as not to

require any evidence of actual prejudice. Such prejudice, however,

seems to have been shown in this case anyway.

In my view, the right to legal assistance in respect of custodial

interrogations, as explained above, in order to be effective and not

merely theoretical (Eur. Court H.R., Artico judgment of 13 May 1980,

Series A no. 37, page 16, para. 33) the following conditions must be

satisfied:

(a) The person to be questioned must be informed in advance of

his right to consult a lawyer and to have his assistance

before and during the questioning.

(b) If the accused wishes to exercise his right in question the

investigating authorities must enable him to have a timely

consultation in private with a lawyer (either retained or

appointed) before the interrogation and enable the lawyer

to be present throughout the interrogation.

I do not think that it is necessary to examine here whether and

to what extent the right under consideration could be subjected to any

particular restriction, as the facts of the present case do not

disclose that any such restriction was considered necessary by the

appropriate authorities of the respondent Government due to any special

circumstances of the case (See Can v. Austria, op. cit., para. 57).

From the facts before the Commission it does not appear that:

(a) the applicant was informed of his right to have legal

assistance in respect of at least five interrogations by

the District Attorney or a police officer while he was in

detention;

(b) the applicant or his lawyers were informed in advance of

the interrogations in question.

Furthermore, it appears that although the applicant at an initial

stage of his arrest (3 February 1985) has expressly requested an

officially appointed lawyer, the authorities failed to meet his request

without justifying such failure and they carried out six interrogations

in the absence of a lawyer of the applicant.

As a result, I find that, in the circumstances of this case the

rights of the applicant for fair trial and legal assistance under

Article 6 of the Convention have been violated. In this respect, I

take into account that no evidence was produced to establish that the

applicant has ever waived his right to counsel.

Therefore, I find that there was a breach of

Article 6 paras. 1 and 3 (c) of the Convention in this case.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

5 May 1988 Introduction of the application

23 June 1988 Registration of the application

Examination of Admissibility

5 February 1990 Commission's decision to invite the

Government to submit observations on the

admissibility and merits of the

application

20 April 1990 Government's observations

25 June 1990 Applicant's observations in reply

3 December 1990 Commission's decision to hold an oral

hearing

31 May 1991 Oral hearing on admissibility and merits,

Commission's decision to declare the

application in part admissible and in

part inadmissible

Examination of the merits

12 October 1991 ) Commission's consideration of the state

7 December 1991 ) of proceedings

14 May 1992 Commission's deliberations on the merits,

final vote and adoption of the Report

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I. v. SWITZERLAND

I. v. SWITZERLAND

LEXI