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AS TO THE ADMISSIBILITY OF

Application No. 28286/95

by W. O.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

S. TRECHSEL

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, 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 18 August 1995 by

W. O. against Switzerland and registered on 22 August 1995 under file

No. 28286/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

25 March 1997 and the observations in reply submitted by the

applicant on 7 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1921, is a retired notary

residing in Einsiedeln in Switzerland. Before the Commission he is

represented by Mr F. Huwyler, a lawyer practising in Schwyz in

Switzerland.

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

summarised as follows.

Until his retirement in 1986 the applicant was notary and real

property administrator (Grundbuchverwalter) of the Einsiedeln District.

On 8 April 1986 the Einsiedeln District Council (Bezirksrat)

filed a criminal action (Strafklage) against the applicant on suspicion

of having embezzled money (Veruntreuung) and forged documents

(Urkundenfälschung) on many occasions. For instance, acting in his

official functions the applicant misappropriated and disloyally managed

monies entrusted to him. When registering real property transactions

he had on over a hundred occasions stated the wrong date. He had also

annulled servitudes (Dienstbarkeiten) concerning other persons in his

own favour. The facts leading to these charges went back to 1979.

Criminal investigations were then instituted as a result of which

the applicant was remanded in custody in August 1986. Among the

investigations undertaken, it appears that a request for information

was filed with a German court.

On 27 November 1987, during the investigations, the applicant's

lawyer requested, with reference to the complexity of the case, an

extension of the time-limit until the end of 1987 for consulting the

case-file, and until 15 January 1988 for filing a supplementary

request. On 31 December 1987 he requested, with reference, inter alia,

to an illness, an extension of the time-limits until 31 January and

15 February 1988, respectively. On 1 February 1988 he requested an

extension of the time-limit until 29 February 1988 for filing a

supplementary request.

The investigations were concluded on 28 July 1988 when the

proceedings were transferred to the Public Prosecutor's Office

(Staatsanwaltschaft).

On 29 September 1988 the Public Prosecutor's Office filed the

bill of indictment (Anklage) against the applicant. Proceedings were

then continued before the Criminal Court (Strafgericht) of the Canton

of Schwyz.

On 7 November 1988 the applicant's lawyer requested a

prolongation of the time-limit to file requests for the taking of

evidence until the end of November. On 30 November 1988, he requested

a further prolongation until 10 December 1988.

The trial before the Criminal Court was fixed for 7 February

1989, whereupon the applicant's lawyer requested the fixing of a new

date in the second half of the month.

The trial was then held on 23 and 24 February 1989.

On 17 March 1989 the Criminal Court gave its decision in which

it convicted the applicant, inter alia, of embezzlement and forging

documents, and sentenced him to 16 months' imprisonment, suspended on

probation for a period of two years. He was also sentenced to a fine

of 6,000 Swiss Francs. The applicant was acquitted of other charges;

in respect of two charges the case was referred back to the prosecuting

authorities.

The applicant's appeal was partly upheld by the Cantonal Court

(Kantonsgericht) of the Canton of Schwyz on 15 May 1990. The Court

found that the Criminal Court, rather than referring certain charges

back to the prosecuting authorities, should itself have decided the

issues. As a result, the Cantonal Court quashed the previous decision.

Proceedings were resumed before the Criminal Court which on

26 July 1990 ordered the Investigation Office (Verhöramt) to conduct

evidence proceedings. On 17 April 1991 the investigations were

concluded.

On 12 December 1991 the Public Prosecutor's Office filed a

supplementary bill of indictment (ergänzende Anklage).

On 23 December 1991 the applicant's lawyer requested a period of

three weeks to file his observations.

In March 1992, the applicant's lawyer was requested to comment

on the case-file and file any requests for the taking of evidence

before the end of the month. On 30 March 1992 he filed a request to

postpone this time-limit until 15 April 1992.

The trial was held before the Criminal Court on 21 and 22 May

1992. The decision of the Criminal Court, dated 21 and 22 May 1992,

convicted the applicant, inter alia, of the offences of embezzlement

and forging documents, and acquitted him of other offences. He was

sentenced to 21 months' unconditional imprisonment and a fine of

6,000 Swiss Francs (CHF).

The judgment was served on the applicant on 28 October 1992.

Against this judgment the applicant filed an appeal with the

Cantonal Court on 4 November 1992.

An appeal hearing was held before the Cantonal Court on 3 May

1994. The Court's decision, issued on the same day, sentenced the

applicant to 24 months' unconditional imprisonment.

When deciding on the punishment, the Cantonal Court considered

that the applicant had complained of the length of the proceedings,

having so far lasted six years and 10 months. While such a period

appeared long, the Court considered that the case was complex and the

applicant had constantly presented new versions of the facts. Even in

the appeal proceedings the applicant had requested referring the case

back to the previous instance, and he had not objected when on 15 May

1990 the case had been referred back to the Criminal Court.

Nevertheless, the length of the proceedings constituted a mitigating

element when deciding on the punishment, though the previous sentence

of 21 months had been too mild.

On 4 July 1994 the applicant filed a public law appeal (staats-

rechtliche Beschwerde) and his plea of nullity (Nichtigkeitsbeschwerde)

with the Federal Court (Bundesgericht). These appeals were dismissed

by the Court in two decisions dated 27 January 1995. The decisions

were served on the applicant on 22 March 1995.

In its decisions, the Court referred, inter alia, to the

applicant's complaint under Article 6 para. 1 of the Convention about

the undue length of the proceedings. The Court found that the Cantonal

Court had duly considered the length as a mitigating circumstance and

that, according to the findings of the Cantonal Court, the applicant

himself had accepted that the proceedings before the Cantonal Court had

not lasted unduly long.

On 13 July 1995 the Petitions Commission (Petitionskomission) of

the Canton of Schwyz dismissed the applicant's request for pardon,

there being no indication of serious miscarriage of justice.

On 8 February 1996 the Administrative Court of the Canton of

Schwyz decided, with reference to two medical expert opinions, that in

view of the applicant's depression he was unable to serve his sentence

(nicht hafterstehungsfähig).

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

of the undue length of the proceedings. He did not contribute to the

length, whereas the prosecuting authorities committed many mistakes.

He refers to the psychological stress which he suffered.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 August 1995 and registered

on 22 August 1995.

On 17 January 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 25 March

1997. The applicant replied on 7 May 1997.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the undue length of the proceedings. He did not

contribute to the length, whereas the prosecuting authorities committed

many mistakes. He refers to the psychological stress which he

suffered.

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

relevant:

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

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

..."

The Government contend that the applicant's complaints are

inadmissible as being manifestly ill-founded. It is submitted that the

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

Convention commenced in June 1986 when the applicant was briefly

remanded in custody, and ended on 22 March 1995 when the Federal

Court's judgments were served on the applicant.

The Government consider that, while the proceedings may appear

long, in fact, if the different stages are assessed independently, they

were conducted rapidly. Even the investigations, which were originally

pursued in the wrong direction, were conducted with care and speed,

which explains why later they had to be complemented. Indeed, nowhere

in his submissions does the applicant sufficiently point to concrete

delays in the proceedings.

The Government submit that the complexity of the case contributed

to the length of the proceedings. Thus, the case comprised a large

number of offences, in respect of which there was little case-law, with

facts going back to 1979, and involving two complainants, i.e. the

Einsiedeln District and a private person. The applicant himself had

not kept any accounts, and an impressive number of documents had to be

examined in detail. Investigations were even undertaken in Germany.

Reference is also made to the volume of the various judgments, e.g. the

judgment of the Criminal Court of 17 March 1989 comprising 102 pages,

with minutes of the hearing amounting to 246 pages; the judgment of the

Cantonal Court of 15 May 1990 comprising 87 pages; the second judgment

of the Criminal Court of 21/22 May 1992 comprising 61 pages, with

minutes of the hearing amounting to 67 pages; and the judgment of the

Cantonal Court of 3 May 1994 of 83 pages. Even the decision of the

Administrative Tribunal of 8 February 1996 amounted to 22 pages.

The Government further contend that the applicant himself

contributed to the length of the proceedings. Thus, he at times

modified his version of the facts, and on various occasions -

27 November and 31 December 1987, 1 February and 7 and 30 November

1988; 31 January and 23 December 1991; and 30 March 1992 - he requested

an extension of the time-limit. Moreover, in the second set of

proceedings, the Cantonal Court actually intended to fix the hearing

in February 1994, though the applicant's lawyer was too busy, and the

hearing was then fixed for 3 May 1994.

Finally, the Government point out that in its judgment of 3 May

1994 the Cantonal Court duly considered the length of proceedings when

determining the applicant's sentence. The Government refer in this

case to the comparable case of R.B. v. Switzerland where the Commission

found no violation of Article 6 para. 1 (Art. 6-1) of the Convention,

as that applicant's sentence had been reduced as a result of the length

of the proceedings (see Comm. Report 24.5.91, para. 60).

The applicant submits that he was first officially informed of

the criminal proceedings instituted against him on 8 April 1986, though

he suspects that investigations were already commenced beforehand, even

as early as 1984. The judgment of the Criminal Court of 19 September

1988 later had to be set aside in view of numerous procedural errors.

In any event, the applicant was acquitted in respect of a substantial

number of charges. The proceedings in 1989 were nerve-racking, as the

investigations had to commence again.

The applicant contends that the fact that the first proceedings

had to be declared invalid and new investigations carried out, leading

to a new indictment, constitutes in itself a ground for assuming that

the proceedings lasted too long. In any event, the fact that two sets

of proceedings were conducted should have been sufficient reason to

expedite the individual stages. However, after completion of the

second investigation, a further eight months elapsed until the

supplementary bill of indictment was filed on 12 December 1991. It

took another five months for the Criminal Court to deliver its second

judgment of 21/22 May 1992, and a further 18 months passed, after the

appeal statement was filed, until the Cantonal Court gave its judgment

on 3 May 1994.

The applicant emphasises that his lawyer made every effort to

expedite the proceedings, and did not request any unnecessary

extensions of time-limits. In any event, the extensions were of short

duration, and the applicant's lawyer was never reproached during the

proceedings for having made excessive use of his rights as defence

lawyer. The fact that the applicant lodged appeals was something he

had every right to do in order to defend himself.

In the applicant's view, the domestic courts on the whole

admitted that the proceedings had lasted too long. However, they

failed to recognise that a period of eight years, involving a serious

psychological and physical burden, was a punishment in itself. The

courts were obviously overtaxed by the entire proceedings, and he

cannot be blamed for this.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The

Commission concludes, therefore, the application is not manifestly ill-

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

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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W.O. v. SWITZERLAND

W.O. v. SWITZERLAND

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