Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26899/95

by H. B.

against Switzerland

The European Commission of Human Rights sitting in private on

18 September 1997, the following members being present:

Mrs. J. LIDDY, Acting President

Mr. S. TRECHSEL

Mrs. G.H. THUNE

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 March 1995 by

H. B. against Switzerland and registered on 28 March 1995 under file

No. 26899/95;

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 February 1997 and the observations in reply submitted by the

applicant on 15 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1959, is a businessman

residing in Küsnacht in Switzerland. Before the Commission he is

represented by Mr L. Erni, a lawyer practising in Zürich.

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

summarised as follows.

A. Particular circumstances of the case

On 12 May 1993 the applicant was arrested on the premises of his

company and detained on remand in Solothurn.

On the same day the investigating judge (Untersuchungsrichter)

of the Canton of Solothurn informed him that he was suspected of having

committed the offences of forging documents, of fraudulently obtaining

a false document, of disloyal management, and of giving incorrect

information as to commercial companies (Urkundenfälschung, Erschleichen

einer Falschbeurkundung, ungetreue Geschäftsführung und unwahre Angaben

über Handelsgesellschaften), and that there existed a danger of

collusion. According to the minutes, the applicant was informed that

contacts with his lawyer were not allowed.

Also on 12 May 1993 the investigating judge issued an order

according to which the applicant's company offices and house were to

be searched. The order also stated that the applicant's lawyer was not

allowed to consult the case-file, or to participate in the taking of

evidence, and he was not to see or to speak with the applicant.

Still on 12 May 1993 the applicant complained in writing of his

arrest and detention to the Court of Appeal (Obergericht) of the Canton

of Solothurn.

On 15 May 1993 the investigating judge noted that part of his

order of 12 May 1993, in particular the lawyer's prohibition to see or

speak with the applicant, had been drafted erroneously under stress,

and he amended this part of the order.

On 17 May 1993 the applicant was visited by his lawyer. He was

also questioned by the police, though he refused to reply. He insisted

that he should first duly be informed of the charges laid against him.

On 17 May 1993 in the afternoon the investigating judge informed

the applicant that the charges concerned an increase of capital of the

B. company in 1991, the balance sheet of 1991 and the accusation of

disloyal management of the B. company.

On 18 May 1993 the applicant's lawyer filed an appeal with the

Court of Appeal against the applicant's arrest and detention. Therein

he requested the applicant's release, and the lifting of all

restrictions of his defence rights. He further complained that he had

not been informed in any concrete manner of the offences laid against

him. The applicant's lawyer also complained that the applicant had not

been heard by a "judge or other officer" within the meaning of

Article 5 para. 3 of the Convention; thus, the investigating judge

concerned was in a position to refer certain cases to trial (see below,

Relevant domestic law and practice).

On 18, 19 and 22 May 1993 the applicant was again questioned.

No further information was given as to the reasons for detention.

On 22 May 1993 the applicant was released from detention on

remand.

As from 16 September 1993 the applicant and his lawyer were

permitted to consult the case-file.

On 4 October 1993 the Court of Appeal struck the applicant's

appeals of 12 and 18 May 1993 off its list of cases as having lost

their purpose (als gegenstandslos abgeschrieben). The Court referred

to the case-law of the Federal Court (Bundesgericht) as to the

requirement in such cases of an applicant's legitimation according to

S. 88 of the Federal Judiciary Act (Organisationsgesetz; see below,

Relevant domestic law and practice). The Court found that the

applicant had meanwhile been released from detention and that he

therefore lacked a practical interest in his appeal.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court in which he complained that the

Court of Appeal had struck the appeal off its list of cases. He also

complained about his detention on remand, the limitations of his

defence rights, and that the position of the investigating judge

breached Article 5 para. 3 of the Convention.

On 26 January 1994 the investigating judge filed observations

with the Federal Court on the applicant's public law appeal. With

regard to the grounds of detention, he stated that, in view of the

applicant's previous contacts with other persons concerned, it could

subsequently be assumed that he, the applicant, would with great

probability have known quite clearly which charges were laid against

him (mit grosser Wahrscheinlichkeit ziemlich genau wusste, was ihm

vorgeworfen wurde).

On 2 September 1994 the Federal Court dismissed the public law

appeal, the decision being served on 21 September. The Court

considered at the outset that it was not in a position to examine in

substance the applicant's complaints about his detention on remand, as

the Court of Appeal had not previously examined the matter and the

applicant had not, therefore, complied with the requirement as to the

exhaustion of cantonal remedies.

The Federal Court then examined, with reference to its own case-

law (see below, Relevant domestic law and practice), whether or not the

applicant was entitled under S. 88 of the Federal Judiciary Act to file

a public law appeal. The Federal Court refused to grant the applicant

standing, noting, inter alia, that the Court of Appeal had itself

stated that it would be able again to examine in a later case whether

or not the investigating judge of the Canton of Solothurn complied with

the requirements of Article 5 of the Convention. The Federal Court

found that the applicant was free to file an application with the

Commission, though certain practical problems might arise under

Article 26 of the Convention as to the exhaustion of domestic remedies

and the time-limit.

On 13 February 1995 the applicant filed a civil action with the

Federal Court against the Canton of Solothurn, claiming compensation

for unlawful detention. The proceedings are currently pending before

the Federal Court.

B. Relevant domestic law and practice

a. Federal Judiciary Act (Organisationsgesetz)

S. 88 of the Federal Judiciary Act concerns an applicant's

legitimation to file a public law appeal (staatsrechtliche Beschwerde)

and states, insofar as relevant:

"Citizens (private persons) ... have the right to file an appeal

in respect of those breaches of law, which they have suffered on

the basis of laws or orders which are generally applicable or

personally concern them."

"Das Recht zur Beschwerdeführung steht Bürgern (Privaten) ...

bezüglich solcher Rechtsverletzungen zu, die sie durch allgemein

verbindliche oder sie persönlich treffende Erlasse oder

Verfügungen erlitten haben."

The Federal Court has frequently interpreted S. 88 of the Federal

Judiciary Act in the context of matters of detention on remand (see ATF

110 Ia 140).

According to this case-law, S. 88 requires an actual and

practical interest of the applicant in the quashing of the contested

act. This requirement ensures that the Federal Court will examine

concrete and not merely theoretical issues, and thus serves procedural

economy. Once a person has been released from detention, he no longer

has an actual practical interest in the examination of his appeal for

release from detention. The persons concerned can still claim damages

based on cantonal procedural rules and on Article 5 para. 5 of the

Convention.

Exceptionally, the Federal Court will renounce the requirement

of an actual practical interest if the contested interference could at

any time be repeated (wenn der gerügte Eingriff sich jederzeit

wiederholen könnte); if there is a sufficient public interest in the

examination of the question; and if in the circumstances of the case

the matter could rarely be examined on time.

Thus, the Federal Court has examined, after a person's release

from detention, for instance, the issue of detention of very short

duration; the possibilities of an appeal upon arrest; the issue of the

same person imposing detention on remand and later filing the bill of

indictment; the monitoring of the communications between the accused

and his lawyer; and the length of review proceedings.

b. Code of Criminal Procedure (Strafprozessordnung) of the Canton

of Solothurn

According to SS. 88 ff of the Code of Criminal Procedure of the

Canton of Solothurn, the investigating judge will conduct the

preliminary investigations, though he does not represent the Public

Prosecutor's Office, and he cannot file a bill of indictment. On the

other hand, the investigating judge may in certain cases which have

been dealt with, for instance, by a District Court (Amtsgericht), refer

a case to trial (Überweisungsverfügung), if the Public Prosecutor's

Office is not called upon to prepare the indictment.

COMPLAINTS

Under Article 5 para. 2 of the Convention the applicant complains

that he was not duly and sufficiently informed of the grounds for his

detention. He was not even informed on 17 May 1993 when he was

questioned by the police. Still on 18 May 1993 his lawyer was not in

a position to challenge the grounds of detention and the suspicion

levelled against the applicant.

Under Article 5 para. 3 of the Convention the applicant

complains, with reference to the case of Huber v. Switzerland (Eur.

Court HR, judgment of 23 October 1990, Series A no. 188) of the

position of the investigating judge of the Canton of Solothurn who may

refer a case to trial, and who is under the instructions of the Public

Prosecutor's Office.

Under Article 13 of the Convention the applicant complains that

he did not have an effective remedy at his disposal to complain about

his detention on remand. The only remedy available was the appeal to

the Court of Appeal of the Canton of Solothurn, which he employed.

However, both the Court of Appeal and the Federal Court did not examine

the complaint in substance in view of the applicant's release from

detention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 March 1995 and registered

on 28 March 1995.

On 27 November 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

25 February 1997. The applicant replied on 15 May 1997.

THE LAW

1. The applicant complains under Article 5 para. 2 (Art. 5-2) of the

Convention that he was not duly and sufficiently informed of the

grounds for his detention. Under Article 5 para. 3 (Art. 5-3) of the

Convention the applicant complains of the position of the investigating

judge of the Canton of Solothurn who may refer a case to trial, and who

is under the instructions of the Public Prosecutor's Office. Under

Article 13 (Art. 13) of the Convention the applicant complains that he

did not have an effective remedy at his disposal to complain about his

detention on remand.

2. The Government contend that the applicant has not complied with

the requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies. Thus, the applicant lacked

legitimation according to S. 88 of the Federal Judiciary Act. In this

respect, reference is made in particular to the Federal Court's

constant case-law, for instance ATF 110 Ia 140. According to this

case-law, the Federal Court will not examine the complaint of a person

after his release from detention, as he no longer has an actual

practical interest in the examination of his appeal. This case-law

does not have the purpose of limiting a detained person's legal

protection. Rather, it is justified as the person has other procedures

at his disposal in which he can complain of the unlawfulness of his

detention.

The Government submit, with reference to various examples, that

in cases such as the present one there is the possibility of filing an

action for compensation. This remedy complies with the case-law of the

Convention organs according to which such remedies must be "available

and sufficient to afford redress in respect of the breaches alleged.

The existence of the remedies in question must be sufficiently certain

not only in theory but in practice" (see Eur. Court HR, Akdivar

v. Turkey judgment of 16 September 1996, para. 66, to be published in

Reports of Judgments and Decisions, 1996).

The Government recall that such an action for compensation may

be based directly on Article 5 para. 5 (Art. 5-5) of the Convention,

and it may serve to obtain compensation for both material and

immaterial damage. Furthermore, the procedures fall under the

protection of Article 6 para. 1 of the Convention. With such an action

the applicant may allege the unlawfulness of his detention which is a

condition for obtaining compensation. Indeed, in the present case the

applicant filed precisely such an action against the Canton of

Solothurn before the Federal Court. This action is currently pending.

The applicant contends that the action for compensation which he

has filed does not prevent the Commission from examining the present

application. Those proceedings also concerned various other issues,

for instance the length of detention and the applicant's contacts with

his lawyer, whereas the present application concerns an alleged breach

of Article 5 paras. 2 and 3 (Art. 5-2, 5-3) of the Convention.

The applicant submits that Article 26 (Art. 26) of the Convention

permits a State to remedy an alleged violation. If the State is

offered the possibility but does not do so, this cannot then serve as

an objection that the applicant has not exhausted domestic remedies.

In the present case, both the Court of Appeal of the Canton of

Solothurn and the Federal Court had the possibility of examining the

applicant's complaints, since the Federal Court's case-law envisages

certain conditions where the requirement of an actual practical

interest can be renounced, for instance where the contested

interference could at any time be repeated. Article 13 (Art. 13) of

the Convention aims at preventing the situation where a domestic court

wishes to bar the applicant's access to the Convention organs by not

examining his complaint in substance.

The applicant claims that in the present case the remedies which

he employed were the only available ones. They were not without

prospects of success, since the Federal Court had the possibility of

examining the appeal. As a result, the time-limit of six months must

be calculated as from the date of the final decision of the Federal

Court. Whether or not Article 26 (Art. 26) has been complied with must

be examined independently of other remedies which are at the

applicant's disposal.

Under Article 26 (Art. 26) of the Convention "the Commission may

only deal with (a) matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law ..."

According to the Convention organs' case-law the rule of

exhaustion of domestic remedies referred to in Article 26 (Art. 26) of

the Convention obliges those seeking to bring their case against the

State before an international judicial or arbitral organ to use first

the remedies provided by the national legal system. Consequently,

States are dispensed from answering before an international body for

their acts before they have had an opportunity to put matters right

through their own legal system. The rule is based on the assumption,

reflected in Article 13 (Art. 13) of the Convention - with which it has

close affinity -, that there is an effective remedy available in

respect of the alleged breach in the domestic system (see Eur. Court

HR, Akdivar v. Turkey judgment, op. cit., para. 65).

Under Article 26 (Art. 26) normal recourse should be had by an

applicant to remedies which are available and sufficient to afford

redress in respect of the breaches alleged. The existence of the

remedies in question must be sufficiently certain not only in theory

but in practice, failing which they will lack the requisite

accessibility and effectiveness. Article 26 (Art. 26) also requires

that the complaints intended to be made subsequently at Strasbourg

should have been made to the appropriate domestic body, at least in

substance and in compliance with the formal requirements (see Eur.

Court HR, op. cit., para. 66).

In the present case, the Court of Appeal of the Canton of

Solothurn on 4 October 1993 struck the applicant's appeals of 12 and

18 May 1993 off its list of cases as having lost their purpose since

the applicant had been released from detention and, therefore, lacked

a practical interest in his appeal. The Court thereby referred to the

Federal Court's case-law on the matter. Upon the applicant's public

law appeal, this decision was upheld on 2 September 1994 by the Federal

Court.

The Commission observes that, in his appeals of 12 and 18 May

1993, the applicant raised the complaints which he is now raising

before the Commission. It is undisputed that the remedies employed by

the applicant were effective in that, had they been successful during

the applicant's detention on remand, the applicant would have been

released.

The Court of Appeal of the Canton of Solothurn could nevertheless

have entered into an examination of the applicant's appeals on the

grounds established in the Federal Court's case-law. According to this

case-law, the appeal of a detained person who has meanwhile been

released may be examined if the contested interference could at any

time be repeated; if there is a sufficient public interest in the

examination of the question; and if in the circumstances of the case

the matter could rarely be examined on time.

In the present case, however, the Court of Appeal of the Canton

of Solothurn decided to strike the appeals off its list of cases, thus

concluding that the grounds established in the Federal Court's case-law

had not been met. The Federal Court upheld this decision.

The Commission considers that the examination of an appeal in

such cases will depend on an assessment by the domestic courts

concerned of the grounds established in the Federal Court's case-law.

The examination of the case thus lies outside the responsibility of the

person concerned. In particular, it cannot be said that the present

applicant failed to comply with any formal requirements for filing his

appeals. In the Commission's opinion, moreover, it is not possible for

the person concerned to foresee how the courts concerned will assess

in his particular case the grounds established in the Federal Court's

case-law.

As a result, the applicant complied with the requirements under

Article 26 (Art. 26) of the Convention by first employing the remedies

provided by the national legal system. The Swiss authorities were thus

provided the opportunity to put matters right through their own legal

system, though they chose not to do so for reasons for which the

applicant could not be held responsible.

In view thereof, it is unnecessary further to examine whether the

applicant should have introduced, in addition and on the basis of

Article 5 para. 5 (Art. 5-5) of the Convention, an action for

compensation for unlawful detention, and whether the applicant's

current action, pending before the Federal Court since 1995, would meet

the requirements of Article 26 (Art. 26) of the Convention in the

present case.

As a result, the application cannot be declared inadmissible for

non-exhaustion of domestic remedies.

3. 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, that 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.

H.C. KRÜGER J. LIDDY

Secretary Acting President

to the Commission of the Commission

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H.B. v. SWITZERLAND

H.B. v. SWITZERLAND