Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31813/96

by A. R.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

S. TRECHSEL

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 April 1996 by

A. R. against Switzerland and registered on 11 June 1996 under file

No. 31813/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Croatian citizen born in 1960, is a waiter

residing in Sinjii in Croatia. Before the Commission he is represented

by Mr E. Schönenberger, a lawyer practising in Rümlang in

Switzerland.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant was remanded in custody on three occasions for a

period of altogether 44 days, i.e. on 30 September 1988 and 29 May and

18 December 1990 for having entered Switzerland despite a prohibition

to do so. In all three instances, the Zürich District Attorney's

Office (Bezirksanwaltschaft) filed bills of indictment against the

applicant with the Zürich District Court (Bezirksgericht).

In decisions given by the District Court on 5 February 1991 and

by the Court of Appeal of the Canton of Zürich (Obergericht) of

8 February 1991, it was found that the imposition of detention on

remand on the applicant breached Article 5 para. 3 of the Convention

in the light of the Convention organs' case-law as to the role of the

District Attorney in the Canton of Zürich (see Eur. Court HR, Jutta

Huber v. Switzerland judgment of 23 October 1990, Series A no. 188).

It appears that the applicant was eventually convicted of the

offence of unlawfully entering Switzerland, though the detention on

remand imposed on him was deducted from the prison sentence.

On 7 December 1990 and 2 April 1991 the applicant filed a request

for compensation of 30,000 Swiss Francs (CHF) which the Government

(Regierungsrat) of the Canton of Zürich dismissed on 24 April 1991.

On 22 October 1991 the applicant filed an action with the Zürich

District Court, arguing that the Government had breached Article 5

para. 5 of the Convention and claiming compensation of 30,000 CHF.

The applicant also filed a request for exemption from court fees

and for legal aid (unentgeltliche Prozessführung und Rechtsvertretung)

which was dismissed by the District Court for lack of prospects of

success on 8 January 1992 and upon appeal by the Court of Appeal on

3 July 1992. The applicant's subsequent plea of nullity

(Nichtigkeitsbeschwerde) was dismissed by the Court of Cassation

(Kassationsgericht) of the Canton of Zürich on 1 September 1992.

However, his public law appeal (staatsrechtliche Beschwerde) was upheld

by the Federal Court (Bundesgericht) on 2 February 1993, whereupon on

5 April 1993 the Court of Cassation granted the applicant legal aid.

On 25 May 1993 the District Court rejected the applicant's action

for compensation as being insufficiently substantiated and withdrew his

entitlement to legal aid.

The applicant's appeal was dismissed by the Court of Appeal on

22 April 1994. However, his plea of nullity was upheld by the Court

of Cassation on 26 July 1994.

Proceedings were resumed before the District Court which on

19 December 1994 dismissed the applicant's action. It considered that

the applicant would have been remanded in custody even if detention had

been imposed in accordance with Article 5 para. 3 of the Convention.

The Court found that the applicant had not sufficiently demonstrated

immaterial damage, and that the determination of a breach of Article 5

para. 3 of the Convention sufficed as satisfaction within the meaning

of Article 5 para. 5 of the Convention.

Upon the applicant's appeal, the Court of Appeal on 10 April 1995

dismissed his request for legal aid and imposed advance legal costs of

1,800 CHF on the applicant. The latter failed to pay the amount

whereupon the appeal was rejected on 8 June 1995.

The applicant's plea of nullity was dismissed by the Court of

Cassation on 6 September 1995.

On 14 September 1995 the applicant filed a public law appeal

which the Federal Court dismissed on 24 January 1996.

In its decision the Federal Court upheld the views of the

previous courts insofar as they had declared the applicant's complaints

inadmissible under Article 5 para. 5 of the Convention. The Federal

Court nevertheless found that the complaint would in any event also be

unfounded.

Thus, while it was undisputed that the applicant had been

remanded in custody in breach of Article 5 para. 3 of the Convention,

this breach had already been formally determined, and the period of

detention on remand had been deducted from the prison sentence. Both

the District Court and the Court of Appeal had found that this sufficed

as satisfaction within the meaning of Article 5 para. 5 of the

Convention. The applicant had not shown why the mere determination of

unlawfulness did not suffice in his case.

The Federal Court further found that the previous courts had not

breached Article 13 of the Convention when rejecting the applicant's

appeals on procedural grounds.

The Federal Court then dealt with the applicant's complaint under

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

proceedings. The decision stated:

"When examining the length of the proceedings, it can be assumed

that the matter was not particularly complex and not of

particular importance for the applicant. The latter employed,

in an admissible manner, remedies at his disposal during the

various phases of the proceedings. This brought about a delay

for which the authorities cannot be made responsible. The

procedural conduct of the applicant amounts to an aggravating

circumstance. He contributed to the delays in the substantial

examination of the case by filing insufficiently substantiated

statements in respect of purely procedural decisions. On the

whole, the length of proceedings of four years until the first

substantial decision of the District Court cannot be regarded as

exceeding the time-limit envisaged in Article 6 para. 1 of the

Convention. The appeal is therefore also in this respect

unfounded ..."

COMPLAINTS

1. The applicant complains under Article 5 para. 5 of the Convention

that his claim for compensation for unlawful detention on remand was

dismissed by the Swiss courts.

2. Under Article 6 para. 1 of the Convention the applicant complains

of the undue length of the proceedings. Four years elapsed until the

District Court decided a simple claim.

3. Under Article 13 of the Convention the applicant complains that

the courts did not freely examine his complaint of a breach of human

rights. In his view, the rights of Article 13 override all domestic

procedural requirements.

THE LAW

1. The applicant complains under Article 5 para. 5 (Art. 5-5) of the

Convention that his claim for compensation for unlawful detention on

remand was dismissed by the Swiss courts.

Article 5 para. 5 (Art. 5-5) of the Convention states:

"Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

The Commission recalls the Convention organs' case-law according

to which Article 5 para. 5 (Art. 5-5) of the Convention is complied

with where it is possible to apply for compensation in respect of a

deprivation of liberty effected in conditions contrary to paragraphs

1-4. It does not prohibit the Contracting States from making the award

of compensation dependent upon the ability of the person concerned to

show damage resulting from the breach. Thus, no issue as to

compensation will arise where there is no pecuniary or non-pecuniary

damage to compensate (see Eur. Court HR, Wassink v. the Netherlands

judgment of 27 September 1990, Series A no. 185-A, p. 14, para. 38).

In the present case, detention on remand was imposed on the

applicant in respect of which the Swiss authorities later considered

that it breached Article 5 para. 3 (Art. 5-3) of the Convention.

It is true that the applicant then unsuccessfully requested

compensation amounting to 30,000 CHF.

However, in the Commission's opinion it does not appear

unreasonable if the various courts refused the applicant's request as

the determination of the unlawfulness of his detention sufficed as

satisfaction within the meaning of Article 5 para. 5 (Art. 5-5) of the

Convention, as the detention on remand imposed on the applicant had

been deducted from his prison sentence, and as the applicant had not

sufficiently demonstrated any damages he had suffered.

Moreover, the applicant has failed also before the Commission to

give any indication as to the nature and amount of the material or

immaterial damages incurred.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicant complains of the undue length of the proceedings.

Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

"In the determination of his civil rights and obligations ...

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

..."

In the present case, the applicant filed his action with the

Zürich District Court on 22 October 1991. The Federal Court in last

resort dismissed his public law appeal on 24 January 1996.

The proceedings to be examined under Article 6 para. 1 (Art. 6-1)

of the Convention therefore lasted four years, three months and two

days.

The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and having regard in particular to the

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

relevant authorities, and what was at stake for the applicant (see Eur.

Court HR, Duclos v. France judgment of 17 December 1996, Reports of

Judgments and Decisions 1996-VI, p. 2180 et seq., paras. 55 and 77).

The Commission has applied these criteria to the present case.

It considers at the outset that the proceedings, concerning

compensation for unlawful detention on remand, could not be regarded

as being complex.

Moreover, the applicant did not unduly contribute to the length

of the proceedings.

As regards the conduct of the authorities, the Commission

considers that, after the applicant filed his action, the courts

proceeded relatively speedily when examining his request for legal aid,

with decisions being given by the District Court on 8 January 1992, the

Court of Appeal on 3 July 1992, the Court of Cassation on 1 September

1992, the Federal Court on 2 February 1993 and the Court of Cassation

again on 5 April 1993.

After proceedings were resumed before the District Court, the

latter gave its decision on 25 May 1993. This decision was upheld by

the Court of Appeal on 22 April 1994, i.e. within less than a year,

though it was quashed by the Court of Cassation on 26 July 1994.

The District Court again gave its decision on 19 December 1994.

Thereafter, the proceedings were again conducted speedily. Thus, the

Court of Appeal gave its decision on 8 June 1995, the Court of

Cassation on 6 September 1995, and the Federal Court on 24 January

1996. Finally, it cannot be said that the outcome of these proceedings

was of particular importance for the applicant within the meaning of

the Convention organs' case-law (see Eur. Court HR, Duclos v. France

judgment, loc. cit., p. 2186, para. 77).

Making an overall assessment of the proceedings, the Commission

finds that there is no indication of any periods of delay attributable

to the authorities which would exceed the requirement of a "reasonable

time" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

It follows that this complaint is also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. Under Article 13 (Art. 13) of the Convention the applicant

complains that the courts did not freely examine his complaint of a

breach of human rights.

Article 13 (Art. 13) of the Convention states:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls that Article 13 (Art. 13) of the

Convention requires a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (see Eur. Court HR, Powell and Rayner v. United Kingdom

judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).

In the present case, the Commission has just found that the

complaints under Article 5 para. 5 and Article 6 para. 1

(Art. 5-5, 6-1) of the Convention are manifestly ill-founded. The

Commission finds that the applicant's submissions in this respect do

not raise any prima facie issue under the Convention. As a result, no

arguable claim can be maintained in respect of a violation of these

provisions.

It follows that the remainder of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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A.R. v. SWITZERLAND

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