Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 15736/89

D.

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 1 April 1992)

TABLE OF CONTENTS

Page

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

PART I: STATEMENT OF THE FACTS .......................... 2

PART II: SOLUTION REACHED ................................ 3

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 D. against Switzerland on 13 September 1989.

It was registered on 7 November 1989 under file No. 15736/89.

The applicant was represented by Mr. K. Mader, a lawyer

practising in Zurich.

The Government of Switzerland 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 8 July 1991 the Commission (First Chamber) declared the

application admissible. It 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."

3. The Commission found that the parties had reached a friendly

settlement of the case and on 1 April 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.

The following members were present when the Report was adopted:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

PART I

STATEMENT OF THE FACTS

4. The applicant is a Yugoslav born in 1955 and resident at

Vinkovci in Yugoslavia.

5. On 13 March 1987 the applicant was remanded in custody by the

Zurich District Attorney's Office (Bezirksanwaltschaft) on suspicion

of having committed, inter alia, the offence of fraud. The warrant of

arrest was signed by District Attorney L.

6. On 3 June 1987 the District Attorney's Office indicted the

applicant before the Zurich District Court (Bezirksgericht) of the

various offences. The indictment was signed by the District Attorney

L. On 26 June 1987 the Zurich District Court convicted the applicant

of fraud, forging documents and disregarding an expulsion order and

sentenced him to twelve months' imprisonment.

7. Upon appeal, the Zurich Court of Appeal on 19 January 1988

sentenced the applicant to 15 months' penal servitude and a fine of 1,000.-

SFr. The applicant was also ordered to leave Switzerland for ten

years.

8. The applicant's subsequent plea of nullity (Nichtigkeits-

beschwerde) was dismissed on 13 June 1988 by the Zurich Court of

Cassation (Kassationsgericht).

9. On 14 March 1989 the Federal Court dismissed the applicant's

public law appeal (staatsrechtliche Beschwerde).

10. Before the Commission the applicant complained that, contrary to

Article 5 para. 3 of the Convention, the same district Attorney first

decided on the applicant's detention and later indicted him. Thus the

District Attorney could not be regarded as having been independent as

required by that provision.

PART II

SOLUTION REACHED

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

the Commission (First 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.

12. 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.

13. The following agreement was accepted by the applicant in a letter

dated 8 February 1992 and by the Government in a letter dated 2 March

1992.[English]

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

5,000 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. 15736/89 before the

European Commission of Human Rights.

2. The settlement is reached by the parties in view of the

changes, by popular referendum, in the Code of Criminal

Proceedings of the Canton of Zurich, in particular paras.

58 et seq. According to the Resolution of the Committee of

Ministers of 13 December 1991 (DH (91) 40), as a result of

these changes the Swiss Government complied with its

obligations under Article 53 of the Convention following

the judgment of the European Court of Human Rights in the

case of Huber v. Switzerland (judgment of 23 October 1990,

Series A no. 188).

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

applicant considers Application No. 15736/89 lodged with

the European Commission of Human Rights, as settled.

4. He 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."

[French]

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

de 5,000 F.S. à titre d'indemnité forfaitaire, toutes

causes de préjudice confondues, comprenant en particulier

les frais et dépens encourus par le requérant en Suisse et

à 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 15736/89.

2. Le règlement auquel sont parvenues les parties tient compte

des changements intervenus, par referendum populaire, dans

le Code de Procédure Pénale du Canton de Zurich, notamment

ses articles 58 et suivants. Selon la Résolution du Comité

des Ministres du 13 décembre 1991 (DH (91) 40) et en raison

de ces changements, le Gouvernement suisse s'est conformé

à ses obligations découlant, selon l'article 53 de la

Convention, du jugement de la Cour Eur. D.H. dans l'affaire

Huber c/Suisse (arrêt du 23 octobre 1990, Série A no. 188).

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

requérant considère la requête No 15736/89 introduite

devant la Commission européenne des Droits de l'Homme comme

réglée.

4. Il 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."

14. At its session on 1 April 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.

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

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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D. v. SWITZERLAND

D. v. SWITZERLAND

LEXI