Lexploria

Application No. 14379/88

W.

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 10 September 1991)

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 - 98) ....................................... 3

A. The particular circumstances of the case

(paras. 16 - 94) ............................... 3

1. Criminal investigations instituted and

conducted against the applicant (1982 - 1988)

(paras. 16 - 71) ........................... 3

a) Preliminary investigations (1982 - 1985)

(paras. 16 - 18) ....................... 3

b) The applicant's arrest; the

period from 1985 to 1987

(paras. 19 - 45) ....................... 3

c) The period from 1987 to 1988

(paras. 46 - 71) ....................... 8

2. Applicant's indictment and

trial (1988 - 1989)

(paras. 72 - 94) ........................... 11

B. Relevant domestic law and practice

(paras. 95 - 98) .............................. 13

- ii -

PAGE

III. OPINION OF THE COMMISSION

(paras. 99 - 149) ...................................... 15

A. Complaint declared admissible

(para. 99) ..................................... 15

B. Point at issue

(para. 100) .................................... 15

C. Assessment of the reasonableness of the length

of the applicant's detention on remand

(paras. 101 - 144) ............................. 15

1. Period to be considered under Article 5

para. 3 of the Convention

(para. 103) ................................ 15

2. Criteria for assessing the reasonableness

of the length of detention on remand

(paras. 104 - 106) ......................... 16

3. Reasons given by the domestic authorities

(paras. 107 - 119) ......................... 17

4. Complexity of the case

(paras. 120 - 124) ......................... 18

5. Applicant's conduct

(paras. 125 - 131) ......................... 19

6. Conduct of the authorities

(paras. 132 - 144) ......................... 20

D. General assessment

(paras. 145 - 148) ............................ 22

E. Conclusion

(para. 149) ................................... 23

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 24

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 25

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 national born in 1945, is a business-

man. Before the Commission he is represented by Mr. P. Saluz, a

lawyer practising in Bern.

3. The application is directed against Switzerland. The

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 5

para. 3 of the Convention of the length of his detention on remand.

His detention lasted from 27 March 1985, when he was remanded in

custody, until 30 March 1989, when he was convicted of fraud and

sentenced to eleven years' imprisonment.

B. The proceedings

5. The application was introduced on 20 September 1988 and

registered on 10 November 1988.

6. On 12 July 1989 the Commission decided to give notice of the

application to the respondent Government and to invite them to present

their observations in writing on the admissibility and merits of the

application.

7. The Government's observations were submitted on 13 October

1989. The applicant submitted his observations in reply on 13

December 1989.

8. On 9 October 1990 the Commission declared the application

admissible. The Commission also invited the parties to reply to

further questions on the merits of the case.

9. The Government and the applicant both submitted their further

observations on 28 November 1990.

10. 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 of the case. Consultations with the parties took

place between 15 October 1990 and 4 April 1991. 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 in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

12. The text of this Report was adopted on 10 September 1991 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. The particular circumstances of the case

1. Criminal investigations instituted and conducted against the

applicant (1982 - 1988).

a) Preliminary investigations (1982 - 1985)

16. As from October 1982 onwards the Criminal Police of the Canton

of Bern received complaints about the business activities of the

applicant and other persons; various criminal reports (Anzeigen) were

filed. During this time a number of companies in which the applicant

and other persons were involved went bankrupt.

17. In October 1984 a confidential report counting over 100 pages

and containing a request for criminal investigations (Ermittlungsgesuch)

was issued to various Interpol agencies in the Federal Republic of

Germany, the United States of America, the United Kingdom, Monaco and

various countries in the Caribbean.

18. On 8 February 1985 preliminary investigations were instituted

against the applicant and other persons.

b) The applicant's arrest; the period from 1985 to 1987

19. On 27 March 1985 the applicant was arrested and remanded in

custody on suspicion of having committed a number of economic

offences, inter alia various instances of professional fraud, and on

the grounds of a danger of absconding, of collusion and of repetition.

The charges related to approximately 60 companies controlled by the

applicant.

20. Charges were also brought against altogether 12 other persons

of whom six were eventually arrested and remanded in custody.

21. As from mid-1985, two special investigating judges (Unter-

suchungsrichter) were appointed exclusively to conduct the

investigations concerning events dating back to 1977. The

investigating judges were assisted by two specialists of the Bern

Cantonal Police and two to three secretaries. The investigations

were placed under the supervision of the Public Prosecutor and the

Indictment Chamber (Anklagekammer) at the Court of Appeal

(Obergericht) of the Canton of Bern.

22. Between March 1985 and June 1986 the residences of the

applicant and other persons and firms were searched in altogether 18

instances. Large amounts of documents were seized. According to the

subsequent report of the special investigating judges of 3 October

1988, the documents, which were found inter alia in a cellar and in a

bath, were in a complete mess (heilloses Durcheinander). During this

period the telephone and telex communications of the suspects were

monitored.

23. On 3 April 1985 the investigating authorities seized various

bank accounts in altogether 17 banks. Letters rogatory were issued in

respect of further banks. Eventually, the authorities established a

list of approximately 200 bank accounts concerning the criminal

proceedings instituted against the applicant and other persons. In

1985, monies and valuables possessed by the applicant and other

persons were confiscated on the basis of orders of, or following

searches on, 27 and 28 March, 3 April, 4 May, 2, 3 and 27 June,

5 September, 3 October and 25 November.

24. The investigating authorities entered the information

collected during the preliminary investigations by means of a computer

in a day-by-day journal (tagebuchartiger Abriss), eventually counting

891 pages.

25. The main case-file (Hauptdossier) eventually consisted of 711

files; a further file (Nebendossier) was also established. The row of

documents extended over 120 metres. Towards the end of 1986 a new

systematic order of the file was introduced. At one stage, when

establishing a systematic order, over 10,000 photocopies were prepared

per month. According to the Report of the special investigating

judges of 3 October 1988, the investigating authorities viewed every

single page of the case-file.

26. At the early stages of the proceedings difficulties arose with

regard to the various accused persons' right to consult the

case-file. At one stage, the investigating authorities considered

that consultation of the case-file would have to be refused for some

years. Altogether 14 complaints and appeals were filed against

various decisions of the investigating authorities. After April 1986

the accused were permitted to consult approximately 90% of the

case-file, after 22 October 1986 virtually the entire case-file.

27. On approximately 350 occasions the investigating authorities

questioned the applicant, the other accused and various other

persons. However, as from 11 April 1986 onwards the applicant no

longer replied to questions put to him by the investigating

authorities. The latter nevertheless interrogated the applicant on

altogether 36 occasions, namely in 1986: on 11 and 15 April;

7 May; 4 June; 17 July; 19, 26, 27 and 29 August; 1, 5, 10 and

22 September; and 24 November; in 1987: on 11, 16, 25 and 26

February; 4 and 6 March; 11 and 25 June; 7, 8, 9, 10, 13, 14, 20, 21,

22, 23, 24, 27 and 28 July; in 1988: on 12 July.

28. The minutes of the applicant's interrogations, amounting to

approximately 700 pages, consisted of the statements of the

investigating authorities, as well as the statement that the applicant

refused to reply thereto.

29. Between 29 March 1985 and 18 May 1988 the various persons

remanded in custody filed altogether 25 requests for release from

detention. The applicant filed altogether eight requests.

30. The applicant filed his first request to be released from

detention on remand on 24 May 1985. The request was dismissed on

1 July 1985 by the Indictment Chamber.

31. On 8 July 1985 the applicant filed certain complaints about

his official representation by a lawyer (amtliche Verteidigung).

These complaints were dismissed by the Indictment Chamber on 22 July

1985.

32. On 2 August 1985 the applicant complained that one of his

lawyers was not granted a permanent right to visit him, the applicant

(Dauerbesuchsbewilligung). The Indictment Chamber dismissed this

complaint on 28 August 1985.

33. On 26 August 1985 the applicant filed a second request to be

released from detention on remand. This request was dismissed by the

Indictment Chamber on 13 September 1985. Against this decision the

applicant filed a public law appeal (staatsrechtliche Beschwerde)

which the Federal Court (Bundesgericht) dismissed on 7 November 1985.

34. The Federal Court considered that the requirements of Section

111 of the Bern Code of Criminal Procedure (Gesetz über das

Strafverfahren) for imposing detention on remand were met (see below

Relevant Domestic Law and Practice). The applicant was under a

compelling suspicion of having committed the offences and there was a

danger of absconding - since 1978 the applicant had been living in

Monte Carlo, Germany, the United States of America and Anguilla - and

a danger of collusion, in particular in view of the interwoven

situations of the applicant's various companies.

35. The Federal Court also regarded as proportionate the length of

the applicant's detention on remand so far. The decision continued:

[German]

"Indessen werden die Behörden des Kantons Bern alles daran setzen

müssen, das Verfahren beschleunigt zu fördern und insbesondere

diejenigen Personen zu vernehmen (und allenfalls mit dem

Beschwerdeführer zu konfrontieren), mit denen Kollusionsgefahr

bestehen könnte. Die Kompliziertheit des Sachverhalts allein

vermöchte eine jahrelange Untersuchungshaft kaum zu rechtfertigen."

[English translation]

"Nevertheless, the authorities of Canton Bern will have to do

everything to accelerate the proceedings and in particular to

question (or possibly to confront with the applicant) those

persons in respect of whom there exists a danger of collusion.

The mere fact that the case is complex would hardly justify

detention on remand for years."

36. Meanwhile, on 6 September 1985 the applicant filed a request

for the preparation of an expert opinion on certain company accounts.

This was his only request to obtain evidence during the preliminary

investigations. An expert opinion was eventually ordered in July

1986.

37. The applicant's third request to be released from detention on

remand of 17 March 1986 was again dismissed by the Indictment

Chamber. His public law appeal was dismissed by the Federal Court on

25 August 1986.

38. The Federal Court confirmed in particular that there continued

to exist a danger of absconding in particular as the applicant had

expressed the wish to start a new life in the United States of America.

On the other hand, the Court found that a danger of collusion could in

future no longer be assumed as the last co-accused, a certain V.K.,

had meanwhile been arrested, and the interrogations of the most

important witnesses had been completed.

39. The Court considered that the applicant was mainly responsible

for the length of his detention, since the complexity of the case was

due to his failure properly to keep the accounts of the various

companies.

40. The Court noted that the two investigating judges charged with

the investigations had so far worked very intensively, but that no

assessment of the materials had yet commenced with a view to a

subsequent indictment. Nor was it clear whether expert opinions

should be ordered in respect of the company accounts and the

psychiatric examination of the applicant. Finally, the Court

considered that the length of the applicant's detention on remand did

not yet come too close to the length of the applicant's prospective

prison sentence, even if in this respect the Indictment Chamber had

probably gone too far when it assumed that an eventual sentence might

be in excess of five years.

41. In July and October 1986 the investigating authorities ordered

the preparation of two expert opinions concerning the company accounts,

and a psychiatric examination of the applicant, respectively. The

accountancy opinion was submitted on 10 April 1987, the psychiatric

opinion on 22 December 1986. The latter confirmed the applicant's

full criminal responsibility (Zurechnungsfähigkeit).

42. On 12 December 1986 the applicant filed a fourth request to be

released from detention on remand, which the Indictment Chamber

dismissed on 20 January 1987.

43. The applicant's subsequent public law appeal was dismissed by

the Federal Court on 24 March 1987.

44. The Federal Court found that, insofar as the applicant

complained of the time required to prepare the expert accountancy

opinion, namely eight months, he himself had disregarded elementary

rules of accountancy, for instance by filling financial "holes" in one

company with the means of other companies.

45. The Court further noted the volume of the case-files,

consisting of a row of one hundred metres, and observed that the

authorities, in view of the nature of the case, had appointed two

investigating judges who now envisaged terminating the investigations

by autumn 1987. The Court also noted the applicant's refusal to

answer questions. The decision continued:

[German]

"Immerhin sei betont, dass eine Praxis, wonach ein schwerer

Wirtschaftsdelikte, jedoch keiner Gewalttaten verdächtiger

Angeschuldigter allein wegen genereller Fluchtgefahr

notwendigerweise bis zur rechtskräftigen Beurteilung seiner

Sache in Haft zu bleiben habe, mit dem Grundrecht der

persönlichen Freiheit nicht vereinbar wäre... Zu berücksichtigen

ist in diesem Zusammenhang auch, dass der Anreiz zur Flucht im

allgemeinen abnimmt, je grösser der bereits erstandene Haftanteil

wird. Untersuchungsrichter, Staatsanwaltschaft und Anklagekammer

werden daher nach Vornahme der wenigen Untersuchungshandlungen,

bezüglich welcher noch eine gewisse Kollusionsgefahr angenommen

werden kann, längstens jedoch nach einer Haftdauer von 2½ Jahren,

die Haftentlassung des Beschwerdeführers unter Anordnung der

geeigneten Ersatzmassnahmen im Sinne von Art. 111a des bernischen

Gesetzes über das Strafverfahren in Erwägung ziehen müssen.

Anders verhielte es sich nur dann, wenn sich bis dahin konkrete

Anhaltspunkte für eine Fluchtabsicht ergeben sollten. Der

Haftgrund der Wiederholungsgefahr ... dürfte dagegen bei dem

nicht vorbestraften Beschwerdeführer ausser Betracht fallen."

[English translation]

"It has nevertheless to be emphasised that it would no longer be

compatible with the basic right of personal freedom if an accused

suspected of serious economic offences but not of violent acts

was detained on remand until the final determination of his case

merely on the ground of a general danger of absconding... It has

also to be taken into account in this respect that the incentive

to abscond generally decreases as the proportion of time spent in

detention increases. The investigating judges, the Public

Prosecutor's Office as well as the Indictment Chamber will all

have to consider the applicant's release from detention together

with any suitable concomitant supplementary measures within the

meaning of Article 111a of the Bern Code of Criminal Procedure,

once they have undertaken the few investigating acts in respect

of which a certain danger of collusion can still be accepted, but

at the latest after a period of detention of two and a half

years. Matters would only be different if until then there

should be concrete indications of a danger of absconding. The

danger of repetition on the other hand ... would not be of relevance

since the applicant has not previously been convicted."

c) The period from 1987 to 1988

46. Meanwhile, during these proceedings the applicant was in

exceptional cases not permitted to be present during certain acts of

investigation. Upon the applicant's complaint, the Indictment Chamber

decided on 27 January 1987 that the applicant was to be granted the

right in principle to be present at the investigations.

47. On 24 February 1987 the special investigating judges

instructed the police of the Canton of Bern to undertake various

investigations, in particular to establish the flow of money into

various companies from different clients.

48. On 16 April 1987 the Public Prosecutor's Office in Munich

which was conducting the investigations concerning the applicant in

the Federal Republic of Germany established its report which was

subsequently sent to the investigating judges in Bern. As a result

the instructions of 24 February 1987 were extended to include the

German case-file.

49. In 1987 moneys and valuables concerning the applicant and

other persons were confiscated on the basis of orders of, or following

searches on, 16 and 19 January, 9 February, 5 March, 14 May, 2 July,

19 and 21 August (concerning the applicant's personal objects such as

a watch and ring and the surplus resulting from the sale of real

property) and 1 December (concerning a life insurance policy).

50. In 1987 and 1988 the special investigating judges interrogated

the applicant altogether 22 times (see above para. 27).

51. On 3 August 1987 the applicant filed a fifth request to be

released from detention on remand which was dismissed by the

Indictment Chamber on 4 September 1987. His public law appeal was

dismissed on 29 October 1987 by the Federal Court.

52. The Federal Court considered in particular that the delay was

justified by the additional work resulting from the investigations.

Moreover, an excess of the maximum permissible duration of detention

on remand would not be excluded as long as the investigating

authorities had handled the investigations speedily. While its

decision of 24 March 1987 had envisaged a maximum length of detention

of two and a half years, the investigating authorities had meanwhile

taken over proceedings instituted against the applicant in the Federal

Republic of Germany. Nevertheless, the length of detention on remand

should not come too close to the anticipated maximum duration of the

prison sentence. In this respect the Federal Court did not regard it as

unreasonable that the investigating authorities anticipated a prison

sentence of more than five years, particularly since the German

authorities also considered that the applicant had committed the

offence of fraud under German law. As a result, the detention on

remand did not yet exceed the critical limit.

53. The applicant's sixth request of 2 December 1987 to be

released from detention on remand was rejected by the Indictment

Chamber on 9 December 1987. Against this decision the applicant did

not file a public law appeal with the Federal Court.

54. Meanwhile, from September 1987 until February 1988 the special

investigating judges were occupied with studying the case-file which

by then counted 600 dossiers.

55. On 11 December 1987 the special investigating judges issued

an order in which they requested 13 bankruptcy offices in Switzerland to

forward documents concerning one or more of 17 bankrupt companies of

the applicants and consorts.

56. On 18 December 1987 the applicant requested unsupervised

visits by his wife. This request was dismissed by the Indictment

Chamber on 16 February 1988, and the Federal Court on 19 May 1988.

57. On 31 January 1988 the investigating authorities decided ex

officio to continue the applicant's detention on remand.

58. On 1 February 1988 the applicant filed a seventh request to be

released from detention on remand, which was dismissed by the

Indictment Chamber on 18 February 1988. The latter found in

particular that the danger of absconding could not be avoided merely

by imposing substitute securities. Rather, substantial financial

guarantees would have to be submitted which the applicant had

nevertheless refused to provide. The applicant's subsequent public law

appeal was dismissed by the Federal Court on 25 April 1988.

59. The Federal Court found that the previous instance had not

violated the Swiss Constitution or the Convention by assuming a danger

of absconding. The Court further regarded the duration of detention

pending trial as still falling within the permissible limit, in

particular since the anticipated prison sentence would probably exceed

five years by far. While the investigating authorities had frequently

postponed the date at which the investigations would be closed, the

Court noted in particular the difficulties of preparing a day-by-day

journal on the basis of the information gathered and the fact that

investigations were also being conducted against other accused

persons, each charged with different offences. Moreover, the

applicant continued to refuse to co-operate with the authorities, and

one of the investigating judges had fallen ill. The Court

nevertheless urged the investigating authorities to conclude the

investigations within the next months.

60. Meanwhile, on 17 February 1988 the applicant filed a complaint

that various personal gold objects had not been handed out to him. He

also complained that in certain bankruptcy proceedings he had not been

able to consult the case-file, and that in civil proceedings in which

he was involved he had not been granted a further officially appointed

lawyer.

61. On 22 February 1988 the special investigating judges contacted

the General Prosecutor's Office of the Canton of Bern with regard to

the jurisdiction to investigate the situation of various cars owned or

leased by companies in which the applicant was involved.

62. On 7 March 1988 the Bern Cantonal Police Office charged with

the investigation of one business enterprise, the ITF/Sülan,

established their final report and transmitted it to the investigating

judges.

63. On 16 March 1988 the applicant challenged an investigating

judge on account of certain remarks which the latter had made. The

challenge was dismissed by the Indictment Chamber on 28 March 1988,

and by the Federal Court on 11 July 1988. In April 1988 the applicant

consulted the case-file.

64. On 18 May 1988 the applicant filed his eighth request to be

released from detention on remand. The request was dismissed by the

Indictment Chamber on 27 June 1988.

65. The applicant's further public law appeal was partly upheld by

the Federal Court on 19 August 1988. With reference to the Convention

organs' case-law, the Court found in particular that the applicant had

not been granted the possibility in these proceedings to comment on

statements of the Public Prosecutor (Generalprokurator) and the

investigating judges.

66. As a result, the applicant was granted the possibility to

comment on the statements concerned. Subsequently, on 6 September

1988 the Indictment Chamber again dismissed the applicant's eighth

request to be released from detention on remand of 18 May 1988. The

applicant filed a further public law appeal which the Federal Court

again partly upheld on 15 November 1988.

67. The Court found that a mere theoretical danger of collusion

did not suffice to justify further custody. In the applicant's case

however there were concrete indications that such a danger existed.

The Court referred inter alia to the fear expressed by the Bern

authorities that, if released from detention, the applicant would

attempt to collude with his wife and various persons to fabricate

exonerating evidence. The Court also noted that on 2 September 1988

the applicant had been committed for trial (see below para. 77) and

that therefore it could not be said that the authorities had

disregarded the Court's instructions of 25 April 1988.

68. On the other hand, with regard to the question whether the

applicant's detention on remand was approaching the absolute limit,

the Court stated that for the calculation of the prospective prison

sentence not all criminal offences, but only those in respect of which

it was virtually certain that the applicant would eventually be

convicted, had to be considered. The cantonal authorities had

assumed a possible sentence of 15 years which in the Court's view was

clearly exaggerated (deutlich übersetzt). In view thereof the

cantonal authorities had failed to examine the possibility of the

applicant's early provisional release from detention. The Court thus

quashed the decision of the Indictment Chamber of 6 September 1988

with the instruction to consider the possibility of provisional

release.

69. On 10 January 1989 the Indictment Chamber dismissed for a

third time the applicant's eighth request to be released from

detention on remand.

70. The applicant's subsequent public law appeal was dismissed by

the Federal Court on 23 February 1989. The Court agreed in particular

with the Indictment Chamber's view that there were no convincing

reasons (triftige Gründe) warranting provisional release. Reference

was made in particular to the psychiatric opinion of 22 December 1986

according to which the applicant qualified as a swindler (Hochstapler)

and an unrestrained hedonist. The Court also found it irrelevant that

the applicant's conduct during detention had been excellent.

71. During these proceedings the applicant offered a security

amounting to 30,000 SFr. The security was considered insufficient by

the authorities in view of the presumed damages at a value of over

50 million SFr.

2. Applicant's indictment and trial (1988 - 1989)

72. Meanwhile, on 29 April 1988 the investigating judges announced

in the document "Notification and decision" in accordance with Section

98 of the Code of Criminal Procedure (see below Relevant domestic law

and practice) their intention to commit the applicant for trial before

the Criminal Chamber for Economic Offences (Wirtschaftsstrafgericht)

at the Bern Court of Appeal. The notification referred inter alia to

the charges of professional fraud, fraudulent bankruptcy, forging and

suppressing documents and tax fraud.

73. With regard to the charges of professional fraud, the

notification referred to damages of at least 50 million SFr, caused

between 1977/1978 and 1985. It stated that the applicant had, in

order to enrich himself, as sole or mainly responsible person with the

help of front-men abused the control of many companies located in

Switzerland, Panama, the Caribbean, the United Kingdom and the Federal

Republic of Germany. He had created a network of relations between

the companies which he then exploited by all means. When the applicant

encountered financial difficulties, he tried to solve them by

exploiting new companies, thus leading more and more companies into

bankruptcy. He deceived his creditors by means of false financial

securities and statements about the state of the companies.

74. On 17 May 1988 the applicant filed comments on these charges.

75. On 26 May 1988 the criminal proceedings against the applicant

and two other co-accused were separated in view of the urgency of

their case.

76. On 28 June 1988 the applicant complained that he was not

permitted to consult the case-file, and that his lawyer was not

allowed to take certain files to his office or use the official

photocopier free of charge. These complaints were dismissed by the

Indictment Chamber on 27 July 1988.

77. On 2 September 1988 the applicant was committed for trial

(Ãœberweisungsbeschluss) before the Criminal Chamber for Economic

Offences at the Bern Court of Appeal (Wirtschaftsstrafgericht).

78. On 30 August 1988 various orders were issued concerning the

confiscation of coins and stamps amounting to approximately 500 SFr

and two bonds (Schuldbriefe).

79. On 7 September 1988 the applicant's lawyer inquired with the

Bern Court of Appeal as to the prospective dates of the trial. On 20

September 1988 he withdrew the applicant's earlier request to be

released from detention on remand.

80. On 3 October 1988 the special investigating judges filed a

report numbering 50 pages on the manner in which the preliminary

investigations against the applicant had been conducted.

81. On 4 October 1988 the President of the Chamber concerned at

the Bern Court of Appeal discussed the prospective dates of the trial

with the parties. The result was confirmed in writing on 6 October

1988.

82. On 13 October 1988 the applicant was permitted to consult the

case-file together with his lawyer on altogether nine afternoons.

83. On 19 October 1988 the bench of judges sitting at the trial

was announced. A list of the contents of the case-file, counting 19

pages, was also issued.

84. On 9 November 1988 the Court informed the parties of the

evidence it intended to take. On 14 November 1988 it issued

instructions to the private parties involved in the proceedings.

85. On 30 November 1988 the applicant was permitted to consult the

case-file on further seven half-days.

86. On 2 December 1988 the President of the Chamber concerned of

the Bern Court of Appeal decided on various further requests to take

evidence.

87. By letter of 5 December 1988 the investigating judges informed

the Bern Court of Appeal of documents of various bankruptcy offices

which had meanwhile arrived (see above para. 55).

88. On 7 December 1988 the parties were informed of further

documents of bankruptcy offices which had arrived. On 16 December

1988 the detailed plan for the trial and the various summonses

(Vorladungen) were issued.

89. On 3 January 1989 the applicant was permitted to consult the

case-file on further five half-days.

90. On 26 January 1989 the special investigating judges

transmitted to the Bern Court of Appeal further documents inter alia

from a bankruptcy office.

91. The trial commenced on 17 February 1989 and lasted until

30 March 1989.

92. On 30 March 1989 the applicant was convicted by the Criminal

Chamber for Economic Offences at the Bern Court of Appeal inter alia

of various instances of professional fraud, fraudulent bankruptcy,

partly committed until December 1985 while he was remanded in custody,

and forging and suppressing documents. The applicant was sentenced to

11 years' imprisonment and a fine of 10,000 SFr. The detention on

remand of 1,465 days was counted towards the sentence. The applicant

was ordered to pay court costs amounting to 179,900 SFr.

93. One co-accused was sentenced to three years' imprisonment

and a fine of 2,000 SFr, another co-accused to two and a half years'

imprisonment and a fine of 2,000 SFr. These co-accused were also

ordered to pay court costs amounting to 25,700 SFr each.

94. The written reasons of the judgment were served on the

applicant on 15 January 1990.

B. Relevant domestic law and practice

95. Section 111 of the Bern Code of Criminal Procedure (Gesetz

über das Strafverfahren) lays down the requirements for detention on

remand. In particular, there must be the compelling suspicion of

having committed an offence as well as the danger of absconding, of

collusion or of repetition. To assume a danger of repetition the

accused must already have committed, during the proceedings, a further

offence.

96. According to Section 98 of the Code of Criminal Procedure the

investigating judge involved in the investigation of a case will

inform the accused if he regards the investigations as sufficient

(ausreichend). The accused is given the opportunity to reply thereto.

97. The unwritten constitutional right to personal freedom

guarantees according to the case-law of the Federal Court that

detention on remand does not last excessively long. Each case will be

decided individually, considering on the one hand the interest of the

accused in his liberty and, on the other, the interests of the State

in prosecution and the execution of a sentence, if any. In

interpreting the constitutional right to personal freedom, the Federal

Court will consider Article 5 para. 3 of the Convention in its

interpretation by the Convention organs. Thus, the Federal Court will

examine inter alia whether the authorities sufficiently pursued their

investigations.

98. If the detention on remand becomes disproportionately long,

the Federal Court will order the accused's release, even if there is a

serious suspicion that he has committed the offence and a danger of

absconding cannot be excluded (see Arrêts du Tribunal Fédéral 108 Ia

66; 107 Ia 257/8 and 105 Ia 29/30).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

99. The Commission has declared admissible the applicant's

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

concerning the length of his detention on remand.

B. Point at issue

100. Accordingly, the issue to be determined is whether there has

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

C. Assessment of the reasonableness of the applicant's detention

on remand

101. The applicant complains under Article 5 para. 3 (Art. 5-3) of

the Convention of unreasonable length of his detention on remand.

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

insofar as relevant:

" Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article ... 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

103. The applicant was arrested on suspicion of having committed

various economic offences and remanded in custody on 27 March 1985.

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 Criminal

Chamber for Economic Offences at the Bern Court of Appeal convicted

the applicant inter alia of various instances of fraud and fraudulent

bankruptcy on 30 March 1989. The period of detention on remand

therefore lasted from 27 March 1985 until 30 March 1989, i.e. four

years and three days, or as the Bern Court of Appeal calculated in its

decision of 30 March 1989, 1,465 days (see above para. 92). In the

Commission's opinion such a very lengthy period can only be justified

by extraordinary circumstances.

2. Criteria for assessing the reasonableness of the length

of detention on remand

104. The Government submit that when determining whether or not the

length of the applicant's detention on remand was reasonable, all

circumstances of the case must be considered, namely the volume and

complexity of the matter, the conduct of the authorities and the

applicant, and the relationship between the length of the detention

and the seriousness of the offences at issue.

105. 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 (see Eur. Court H.R., Neumeister judgment of 27 June 1968,

Series A No. 8, p. 37, paras. 4-5).

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 (see Eur. Court H.R., Stögmüller

judgment of 10 November 1969, Series A No. 9, p. 40, para. 4), 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

(loc. cit.; see Eur. Court H.R., Wemhoff judgment of 27 June 1968,

Series A No. 7, pp. 24-25, para. 12; Ringeisen judgment of 16 July

1971, Series A No. 13, p. 42, para. 104). 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 (see Letellier judgment

of 26 June 1991, Series A No. 207, para. 35; Matznetter judgment of 10

November 1969, Series A No. 10, p. 34, para. 12; B v. Austria judgment

loc. cit., p. 16, para. 42). Article 5 para. 3 (Art. 5-3) of the

Convention implies that there must be special diligence in the conduct

of the prosecution of persons charged and detained. Even if the

duration of the preliminary investigation is not open to criticism,

that of the detention must not exceed a reasonable time (see

Stögmüller judgment loc. cit., p. 40, para. 5). The Commission

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

expressly refers to the possibility of the accused under certain

circumstances to be released from detention on remand under guarantees

to appear for trial.

106. The grounds relating to the public interest cited by the

national judicial authorities may be very pertinent and sufficient to

justify keeping a person in detention pending trial, but that does not

free the authorities from their obligations under the Convention if

they themselves are seen to have conducted the case in such a way as

to entail an unreasonable prolongation of detention of the accused

pending trial and thus inflicting on him in the interests of public

policy a greater sacrifice than that which would normally be demanded

of a person presumed innocent (see No. 8118/77, Schertenleib v.

Switzerland, Comm. Report 11.12.80, D.R. 23 p. 190). With the passage

of time the grounds for detention will themselves diminish in

pertinence when balanced against the right to liberty guaranteed by

Article 5 (Art. 5) of the Convention to the person provisionally

detained (see No. 12325/86, Kemmache v. France, Comm. Report,

8.6.90, para. 52).

3. Reasons given by the domestic authorities

107. The Commission has first examined the reasons given by the

Swiss authorities when prolonging the applicant's detention on remand

and refusing his applications to be released on bail.

108. The authorities suspected the applicant of having committed a

number of economic offences, inter alia various instances of

professional fraud - cf. the decision of the Federal Court of 7

November 1985 (above para. 34).

109. However, the persistence of reasonable suspicion alone cannot

suffice to justify a protracted period of detention on remand, such as

in the present case. The Commission must therefore examine the other

grounds which persuaded the Swiss authorities to decide that the

detention on remand should be continued, in particular whether they

were "relevant" and "sufficient" (see Eur. Court H.R., B. v. Austria

judgment loc. cit., para. 42; Matznetter judgment loc. cit., p. 34,

para. 12).

110. In the Government's view there were concrete indications of a

danger of absconding and of collusion. While not referring to any

particular decisions the Government further submit that the Swiss

authorities also saw a risk that the applicant would commit further

offences.

111. With regard to the danger of absconding, the Commission

recalls that the possibility of a severe sentence is not sufficient

after a certain lapse of time to justify the length of detention (see

Eur. Court H.R., Wemhoff judgment loc. cit., p. 25, para. 14).

112. In the present case, the Commission notes that the Swiss

authorities assumed a danger of absconding in view of the applicant's

numerous residences abroad and the severity of the possible

punishment. The Commission refers in this respect to the decisions of

the Federal Court of 7 November 1985 (see above para. 34) and 25

August 1986 (para. 38). It is true that on 24 March 1987 the Federal

Court stated that a general danger of absconding no longer sufficed to

justify detention as long as no concrete reasons existed (see above

para. 45). However, on 25 April 1988 the Federal Court again assumed

a danger of absconding in the applicant's case (see above para. 59).

113. In the Commission's opinion, the investigating authorities

could therefore reasonably assume that in the applicant's case there

was a danger of absconding.

114. The Commission further notes that the Swiss authorities also

assumed a danger of collusion, namely with regard to the 60 companies

which the applicant controlled. The Commission refers in this respect

to the decision of the Federal Court of 7 November 1985 (see above

para. 34). It is true that on 25 August 1986 the Federal Court found

that a danger of collusion no longer existed (see above para. 38).

Nevertheless, on 15 November 1988 the Court again saw concrete

indications of such a danger, in particular that, if released, the

applicant would attempt to collude with his wife and other persons to

fabricate exonerating evidence (see above para. 67).

115. Thus, the Swiss authorities could in the applicant's case also

reasonably assume a danger of collusion.

116. The Government further refer to a danger of repetition. The

Commission notes that the applicant was eventually convicted of

offences which he had partly committed while remanded in custody (see

above paras. 92, 95). The authorities could therefore also assume a

danger of repetition.

117. On the whole, the Commission accepts that the Swiss authorities

could reasonably conclude that in the applicant's case there was a

risk of absconding, of collusion and of committing further offences.

118. The Commission further notes that during the preliminary

investigations the applicant offered a security amounting to 30,000

SFr. though this was considered insufficient by the authorities in

view of the presumed damages of over 50 million SFr. (see above para.

71).

119. The question however remains whether, as the detention

continued and its grounds diminished in pertinence, there was still

a sufficient justification for the continued detention for the purpose

of Article 5 para. 3 (Art. 5-3) of the Convention (see No. 12325/86,

Kemmache v. France, Comm. Report, loc. cit.).

4. Complexity of the case

120. In that connection, the complexity of the case falls to be

considered first. The applicant contests that the complexity of the

case could justify the length of the detention on remand. He submits

that the mere fact that the investigating authorities confiscated a

great number of documents does not in itself warrant the conclusion

that the case was complex.

121. The Government submit that the authorities of the Canton of

Bern were here confronted with their most complex case ever concerning

economic offences. Thus, 12 persons were charged and six were

arrested and remanded in custody. The applicant had intentionally

failed properly to organise the accounts of his many companies. The

investigations, which had also to be conducted on an intercantonal and

international level, covered a period of eight years. Only the most

important transactions were eventually considered at the trial.

122. The Commission observes that the charges brought against the

applicant concerned numerous economic offences, in particular fraud,

relating to approximately 60 companies located in Switzerland and

various other countries. Among these companies there existed a

complex network of relations. The special investigating judges

considered in their statement of 29 April 1988 (see above para. 73)

that the damages arising in the present case amounted to at least 50

million SFr. Altogether 12 other persons were also charged with such

offences. The investigations of the authorities concerned

approximately 200 bank accounts. The main case-file eventually

comprised 711 files; the row of all the documents extended over 120

metres. The Commission further notes that at times the documents

found were in a complete disorder (see above para. 22).

123. As a result, the Commission considers that the case was

extremely complex. The Commission notes in this respect the

Government's submissions according to which the Bern authorities were

confronted here with their most complex case ever. This complexity

constitutes an extraordinary circumstance of the present case which in

itself would have considerably contributed to the length of the

applicant's detention on remand.

124. Next, even where the authorities are faced with such

difficulties the Commission is called upon to examine whether they

displayed the diligence required by the Convention whenever a person

is detained, in particular whether the detention was not prolonged

unduly by the manner in which the case was conducted (see Schertenleib

v. Switzerland, Comm. Report, loc. cit., p. 197 et seq.). The

Commission is thus called upon to review the authorities'

investigations of the case as well as the manner in which they dealt

with the complaints and appeals which the applicant filed in order to

obtain a more detailed preparation of the trial. The applicant's

conduct is also relevant.

5. Applicant's conduct

125. The Commission has first considered whether the applicant's

conduct contributed towards the duration of his detention on remand.

The applicant submits that his conduct, in particular the fact that

he remained silent during the interrogations, could not justify the

length of his detention.

126. The Government refer to the judgment of the Federal Court of

25 August 1986 according to which the applicant was mainly responsible

for the length of his detention (see above para. 39). The defence did

not cooperate with the prosecution in establishing the facts. Mention

is also made of the applicant's various requests to be released from

detention on remand.

127. 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.

128. As regards the various complaints and appeals filed by the

applicant, the Commission recalls that a distinction must be made

between applications for release which are in fact aimed at shortening

the period of detention, and other appeals which may delay the

proceedings. Applications for release from detention on remand do not

justify delay in bringing an accused to trial. As regards the other

complaints and appeals, if the applicant had a choice between faster

proceedings and a more detailed preparation of the trial, he must, if

he chose the latter, bear the consequences of his choice (see

Schertenleib v. Switzerland, Comm. Report, loc. cit., p. 137 at p. 199

et seq.).

129. The Commission notes the applicant's complaints seeking a more

detailed preparation of the trial. On 8 July 1985 he complained about

his official representation by a lawyer, and on 2 August 1985 that one

of his lawyers was not permitted to visit him. On 6 September 1985 he

filed his only request to obtain evidence during the preliminary

investigations, namely the preparation of an expert opinion.

130. The Commission further notes that upon the applicant's

complaint the Indictment Chamber on 27 January 1987 granted him the

right to be present at the investigations. On 18 December 1987 he

requested unsupervised visits by his wife. On 17 February 1988 the

applicant complained that personal gold objects had not been handed

out to him. On 16 March 1988 he challenged an investigating judge.

Finally, on 28 June 1988 he complained inter alia that he was not

permitted to consult the case-file.

131. On the whole, the Commission considers that the number and

object of the applicant's requests and complaints do not appear

excessive and the length of the applicant's detention on remand cannot

therefore be imputed to his behaviour.

6. Conduct of the authorities

132. The applicant, while admitting the irregular bookkeeping of

his companies, contends that the authorities were mainly responsible

for the length of his detention on remand. He accepts that the trial

was conducted speedily. However, he submits that it was not always

clear what the special investigating judges undertook from July 1987

until 29 April 1988 and thereafter until 17 February 1989. The

applicant considers that the special investigating judges possessed no

specific knowledge relevant for the investigations; the results after

four years' investigations were insufficient for the trial. The

authorities compiled 700 pages of minutes stating that he had remained

silent during the various interrogations. The infrastructure at the

disposal of the investigating judges was also inadequate.

133. The Government observe that two special investigating judges

as well as other persons exclusively dealt with the case. These

investigating judges were lawyers (Anwälte) with many years of

experience gained in the registry of the Bern Court of Appeal. The

Federal Court regularly declared unfounded the applicant's complaints

that the judges were incompetent or had delayed the proceedings. The

Federal Court also constantly exhorted the cantonal authorities

speedily to pursue their investigations.

134. The Commission considers at the outset that when assessing the

authorities' conduct sufficient time must be allowed for studying the

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

interrogations and for issuing requests for evidence, for instance by

means of letters rogatory. 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).

135. In the present case two special investigating judges were

employed exclusively to conduct the investigations. They were

assisted by two specialists of the Bern Cantonal Police and by two to

three secretaries. A computer was at their disposal.

136. On approximately 350 occasions the investigating authorities

questioned the co-accused and other persons. The applicant was

questioned on 36 occasions.

137. Between March 1985 and June 1986 the investigating authorities

were busy searching residences of the applicant and other persons and

companies, seizing documents found as well as bank accounts and

valuables. Letters rogatory were issued in respect of various

documents. Often the documents seized were in a disorderly state.

138. Between July and October 1986 the investigating authorities

requested the preparations of two expert opinions.

139. In February 1987 the investigating judges issued instructions

to the Bern police concerning further investigations. On 16 April

1987 the Munich Public Prosecutor's Office transmitted a report

concerning the applicant's activities to the Bern authorities. On a

number of occasions between 16 January and 21 August 1987 and again on

1 December 1987 the authorities undertook searches and confiscated

money and valuables. On 11 December 1987 the investigating judges

requested various bankruptcy offices to submit further documents. On

22 February 1988 the Bern Cantonal Police submitted a report on its

investigations.

140. On 29 April 1988 the special investigating judges announced

their intention to commit the applicant for trial, and on 2 September

1988 the committal was decided. The time thereafter, until the trial

commenced on 17 February 1989, was occupied mainly with the

preparation of the trial.

141. In the light of the above facts the Commission considers,

first, that while the authorities frequently interrogated the

applicant, this did not advance the investigations after 11 April

1986 when it became clear that he no longer replied to questions.

On the other hand, these interrogations also served the purpose of

confronting the applicant with the successive results of the

investigations and thus provided him with an opportunity to state his

objections thereto.

142. Second, the Commission notes that between June 1986 and

February 1987, between August 1987 and 29 April 1988, and then again

until the committal for trial on 2 September 1988, comparatively few

instances of investigations took place. In this respect, however, the

Commission recalls the exceptional complexity of the case and

considers that the investigating authorities' examination and

assessment of the case-file would have required a substantial period

of time.

143. In the Commission's opinion, therefore, it cannot be said that

there were periods where the authorities did not actively pursue their

investigations.

144. The Commission further considers that both the Public

Prosecutor and the Indictment Chamber of the Bern Court of Appeal were

called upon to supervise these investigations. The Federal Court also

continuously controlled the length of the applicant's detention on

remand. The Commission here notes, for instance, that on 15 November

1988 the Federal Court partly upheld the applicant's public law appeal

and instructed the cantonal authorities to consider the possibility of

a provisional release (see above para. 68).

D. General assessment

145. The Commission notes that, even if no omissions or errors can

be identified in the authorities' conduct of the investigations, this

could warrant prolongation of detention on remand on the sole ground

of the complexity of the case only up to a certain point. Nor can

prolongation be justified by the prison sentence eventually imposed on

the applicant which amounted to eleven years. In fact, in order to

avoid such prolongation of detention on remand, the national

authorities may in particular circumstances even have to accept a

certain residual risk of collusion and of absconding.

146. In this connection the Commission recalls that at the early

stages of the applicant's detention on remand, the Federal Court, in

its decision of 7 November 1985, pointed out that the mere fact that

the case was complex would hardly justify detention on remand for many

years (see above para. 35), though later the Federal Court considered,

for instance, that continuation of detention on remand was necessary

in view of additional work resulting from the investigations (see

decision of 29 October 1987, above para. 52).

147. In the present case the Commission considers that even the

extraordinary complexity of the case could not justify the whole

period of detention on remand which the Commission regards as

inordinate.

148. Consequently, the applicant's detention on remand, exceeded a

reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention.

E. Conclusion

149. The Commission concludes, by 19 votes to 1, that there has

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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

20 September 1988 Introduction of the application

10 November 1988 Registration of the application

Examination of the Admissibility

12 July 1989 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

13 October 1989 Government's observations

13 December 1989 Applicant's observations in reply

9 October 1990 Commission's decision to declare the

application admissible

Examination of the Merits

28 November 1990 Government's and applicant's further

observations on the merits

12 January, ) Commission's consideration of the

2 March, ) state of proceedings

6 July 1991 )

4 September 1991 Commission's deliberations on the

merits and final vote

10 September 1991 Adoption of the Report

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W. v. SWITZERLAND

W. v. SWITZERLAND

LEXI