Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29356/95

by Hugo BLUMENTHAL

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996 the following members being present:

Mrs. J. LIDDY, President

MM. S. TRECHSEL

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 16 October 1995

by Hugo Blumenthal against Switzerland and registered on 23 November

1995 under file No. 29356/95;

Having regard to:

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

the Commission;

- the Commission's decision of 18 January 1996 to communicate the

application under Article 6 of the Convention and to declare

inadmissible the remainder of the application;

- the observations submitted by the respondent Government on

11 March and 19 August 1996, the observations in reply submitted

by the applicant on 2 May and 23 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1941, is a businessman

residing at Bad Ragaz in Switzerland.

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

summarised as follows.

A. Particular circumstances of the case

On 16 April 1986 the Federal Banking Commission (Eidgenössische

Bankenkommission) filed a criminal report against the applicant on

suspicion inter alia of professional fraud, disloyal management,

negligent bankruptcy and the suppression of documents. The applicant,

who was the responsible agent (Geschäftsführer) of the Euroinvestor

foundation in Vaduz in the Principality of Liechtenstein was in

particular suspected of having induced, by means of misleading

information, 867 investors to pay money into trust accounts of the

Euroinvestor which in reality had been used for stock exchange and

foreign exchange speculations.

Following first investigations in Switzerland and Liechtenstein

the proceedings were taken over by the Zurich District Attorney's

Office (Bezirksanwaltschaft) on 2 October 1987. On 9 August 1988 the

District Attorney's Office requested the Liechtenstein authorities to

take over the investigations. The Liechtenstein Public Prosecutor's

Office (Staatsanwaltschaft) replied on 14 December 1988 that it had

requested the investigating judge of the Regional Court (Landgericht)

of Liechtenstein to institute criminal proceedings against the

applicant and other persons on the basis of the facts established by

the Zurich authorities.

In view of the proceedings in Liechtenstein the Zurich District

Attorney's Office temporarily suspended the proceedings in Switzerland

on 6 March 1989.

On 30 January 1990 the Government of the Principality of

Liechtenstein ordered the dissolution of the Euroinvestor foundation

in the course of which further charges were raised against the

applicant. The company's bankruptcy was ordered on 16 May 1990.

On 30 March 1990 the Zurich authorities issued an international

warrant of arrest against the applicant. Following a television

broadcast which referred to the applicant's case he was arrested on

14 January 1991 in France.

On 31 January 1991 the Liechtenstein authorities requested the

Zurich authorities to take over the criminal proceedings instituted

against the applicant. This was confirmed on 22 May 1991 by the Zurich

authorities.

Meanwhile, the applicant was extradited to Switzerland on

11 April 1991 where he was detained on remand.

On 16 April 1991 the applicant requested his release from

detention on remand. Later, he contested a further decision of 23 May

1991 to prolong his detention on remand; his appeal was dismissed by

the Zurich Court of Appeal (Obergericht) on 14 June 1991 and his public

law appeal in last resort by the Federal Court (Bundesgericht) on

16 November 1991.

On 18 October and 10 December 1991 the Zurich authorities also

took over criminal proceedings pending, respectively, before the Public

Prosecutor's Offices of Tübingen and Ravensburg in Germany.

The applicant's further request for release from detention was

dismissed, upon appeal, by the Indictment Chamber on 6 February 1992.

On 15 April 1992 the applicant was released from detention on remand.

On 23 February 1992 the Zurich District Attorney's Office

indicted the applicant. His subsequent appeal was declared

inadmissible on 29 April 1993 by the Zurich Court of Appeal and on

25 June 1993 by the Federal Court.

On 14 October 1993 the Zurich District Court (Bezirksgericht)

sentenced the applicant on account of, inter alia, professional fraud,

disloyal management, negligent bankruptcy and the suppression of

documents to forty months' imprisonment and a fine of 20'000 SFr.

Upon appeal the Zurich Court of Appeal on 28 June 1994 increased

the sentence to 54 months' imprisonment. His plea of nullity

(Nichtigkeitsbeschwerde), in which he also complained about the length

of the proceedings, was dismissed by the Court of Cassation

(Kassationsgericht) of the Canton of Zurich on 24 January 1995.

Meanwhile, the applicant filed a further plea of nullity on

5 September 1994 with the Federal Court in which he complained that the

Swiss courts lacked jurisdiction in his case as the European

Extradition Agreement had been breached; he also complained of the

punishment. The Federal Court dismissed the plea of nullity on 4 April

1995, the decision being served on 28 April 1995.

In its decision the Federal Court found that the applicant's

complaint about the extradition proceedings in Switzerland was

inadmissible as he had not complied with the formal requirements for

filing the plea of nullity. Insofar as the applicant complained about

the extradition from France, the Court found that it was not competent

to examine French law. The Court then examined, and eventually

confirmed, the sentence imposed by the Court of Appeal.

B. Relevant domestic law and practice

The Federal Court has on various occasions examined complaints

filed in a public law appeal about the undue length of criminal

proceedings which had been conducted, and concluded, before the

previous cantonal instances. Thus, in its decision of 29 March 1990

the Federal Court examined criminal proceedings having lasted seven

years, and in a decision of 16 May 1991 proceedings having lasted six

years. In both cases, the Court found that the length did not breach

Article 6 para. 1 of the Convention and did not, therefore, call, for

instance, for a termination of the proceedings or a mitigation of

sentence. In its decision of 24 January 1996 the Court found that

criminal proceedings lasting four years did not breach Article 6

para. 1 of the Convention.

COMPLAINT

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

of the undue length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 October 1995 and registered

on 23 November 1995.

On 18 January 1996 the Commission decided to communicate the

complaint about the length of the proceedings under Article 6 para. 1

of the Convention, and to declare inadmissible the remainder of the

application.

The Government submitted their observations on 11 March and

19 August 1996 and the applicant his observations in reply on 2 May and

23 September 1996.

THE LAW

The applicant's remaining complaint is that, contrary to

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

instituted against him were too long. This provision states, insofar

as relevant:

"In the determination of ... any criminal charge against him,

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

..."

The Government submit that the application is inadmissible as 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 failed to challenge the decision of 24 January 1995

of the Court of Cassation of the Canton of Zurich, dismissing his

complaint about the undue length of the proceedings, by means of a

public law appeal to the Federal Court. Reference is made to the

Federal Court's case-law, in particular the decisions of 29 March 1990,

16 May 1991 and 24 January 1996. On the other hand, if such a public

law appeal is not considered an effective remedy, the applicant would

not have complied with the time-limit stated in Article 26 (Art. 26)

of the Convention, as he should then have filed his application within

six months after the decision of the Court of Cassation of

24 January 1995.

The applicant submits that he raised a public law appeal in 1991

before the Federal Court, though the latter in its decision of

19 November 1991 did not examine the complaint. Moreover, he has

complied with the requirements of Article 26 (Art. 26) of the

Convention in that he subsequently filed a plea of nullity which was

dismissed by the Federal Court on 28 April 1995. He could not be

expected again to raise complaints under Article 6 (Art. 6) of the

Convention as these had already been dealt with in the decision of

19 November 1991.

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

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law".

The present case concerns criminal proceedings which, by the time

they were brought before the Federal Court, had already been dealt with

by the courts of the Canton of Zurich, in particular the Court of

Appeal and the Court of Cassation.

In respect of cases which have already been concluded before the

previous instances, the Government have referred to various decisions

of the Federal Court, in particular its decisions of 29 March 1990 and

16 May 1991 (see above, Relevant domestic law and practice). These

decisions demonstrate that the applicant could still have filed a

public law appeal with the Federal Court with a complaint under

Article 6 para. 1 (Art. 6-1) of the Convention about the undue length

of the proceedings. The applicant submits, however, that he had

already filed a public law appeal which the Federal Court dismissed on

19 November 1991, and that there would be no point in bringing another

public law appeal.

The Commission notes that on 24 January 1995 the Court of

Cassation of the Canton of Zurich dismissed the applicant's plea of

nullity in which he also complained of the length of the proceedings.

Subsequently, the applicant filed a plea of nullity with the Federal

Court. However, he failed to file a public law appeal in which he

complained under Article 6 para. 1 (Art. 6-1) of the Convention of the

undue length of the proceedings. The previous public law appeal

dismissed by the Federal Court on 19 November 1991 concerned the length

of his detention.

Insofar as the applicant complains of the length of the

proceedings before the courts of the Canton of Zurich, he has not,

therefore, exhausted the remedies available to him under Swiss law.

It follows that in this respect the applicant has not complied with the

condition as to the exhaustion of domestic remedies, and his

application must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

Insofar as the applicant may be understood as complaining of the

proceedings before the Federal Court itself, the Commission notes that

the applicant's plea of nullity of 5 September 1994 was dismissed by

the Federal Court on 4 April 1995, the decision being served on

28 April 1995. This period of seven months and 23 days cannot be

regarded as having exceeded the notion of a "reasonable time" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. This

part of the application is therefore manifestly ill-founded within the

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

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BLUMENTHAL v. SWITZERLAND

BLUMENTHAL v. SWITZERLAND

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