Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23857/94

by André PLUMEY

against Switzerland

The European Commission of Human Rights sitting in private on

9 September 1996, the following members being present:

Mrs. G.H. THUNE, Acting President

Mr. S. TRECHSEL

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

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

M. VILA AMIGÓ

Mr. M. de SALVIA, Deputy 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 10 March 1994 by

André Plumey against Switzerland and registered on 12 April 1994 under

file No. 23857/94;

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

9 April 1996 and the observations in reply submitted by the

applicant on 7 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1928, is a pensioner

residing at Sisseln in Switzerland. Before the Commission he is

represented by Mr. P. Zihlmann, a lawyer practising in Basel.

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

summarised as follows.

In 1986 the Public Prosecutor's Office (Staatsanwaltschaft) of

the Canton of Basel-Stadt instituted criminal proceedings against the

applicant who was suspected of having committed various economic

offences. As the applicant was abroad, the First Public Prosecutor

(Erster Staatsanwalt) issued an international warrant of arrest on

19 June 1989, whereupon the applicant was arrested in Rio de Janeiro

and extradited to Switzerland.

On 4 July 1989, immediately upon his return to Switzerland, the

applicant was arrested. On the same day he was brought before F.H.,

the Acting Public Prosecutor (Leitender Staatsanwalt) who remanded him

in custody (Sicherheitshaft).

The subsequent prolongations of the applicant's detention on

remand until 24 October 1990 were ordered, with one exception, by F.H.

On 23 October 1990 the Court handed down its judgment in the case

of Huber v. Switzerland (Eur. Court HR, Series A no. 188).

On 26 October 1990 the First Public Prosecutor prolonged the

applicant's detention. Against this decision the applicant filed an

appeal, referring to the Court's judgment in the Huber case, in that

the First Public Prosecutor had prolonged his detention on remand.

The appeal was dismissed on 8 November 1990 by the Indictment

Chamber (Überweisungsbehörde) of the Canton of Basel-Stadt. The

Chamber found inter alia that it was not yet in possession of the

Court's judgment in the Huber v. Switzerland case; and that in any

event the issue did not arise in proceedings concerning prolongation

of detention on remand, though it could become relevant at a later

stage of the proceedings.

Against this decision the applicant filed a public law appeal

(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).

On 14 December 1990 the applicant was released on bail from

detention on remand.

On 21 December 1990 the Federal Court struck the applicant's

public law appeal off its list of cases as the applicant had meanwhile

been released from detention.

On 29 November 1991 Acting Public Prosecutor F.H. announced the

intention of the Public Prosecutor's Office to indict the applicant

inter alia of professional fraud, forging of documents and negligent

bankruptcy. It was also stated that the applicant had a time-limit of

10 days to file a complaint.

On 3 December 1991 the applicant challenged F.H., as he had

signed the letter of 29 November 1991, while previously having ordered

his detention on remand. The letter was headed: "Threat of a breach

of Article 5 paras. 3 and 4 of the Convention".

In reply to the letter of 3 December 1991, F.H. wrote to the

applicant on 4 December 1991 that he himself intended to indict the

applicant.

On 7 January 1992 the applicant complained to F.H. that the bill

of indictment had still not been prepared, and that further delays

could no longer be tolerated. The letter was headed: "Here: failure

to indict".

On 14 July 1992 the applicant was indicted of various economic

offences. The bill of indictment was signed by F.H.

On 21 July 1992 the applicant complained to the President of the

Criminal Court (Strafgericht) of the Canton of Basel-Stadt that the

indictment breached Article 5 para. 3 of the Convention. He submitted

in particular that F.H. could not represent the prosecution as he had

previously ordered prolongation of the applicant's detention on remand.

On 26 January 1993 the President of the Criminal Court dismissed

the complaint, inter alia as it was belated. Thus, the applicant had

only on 21 July 1992, during the trial, filed a challenge against the

Public Prosecutor concerned. (Erst mit der vorliegenden Eingabe vom

21.7.92 hat der Verteidiger nun im Hauptverfahren sinngemäss ein

Ausstandsbegehren gegen den Staatsanwalt gestellt.) However, he should

have filed a complaint after the judgment in the case of Huber

v. Switzerland had been pronounced, at the latest after the

announcement of 4 December 1991.

The applicant's appeal against this decision was rejected on

9 March 1993 by the Court of Appeal (Appellationsgericht) of the Canton

of Basel-Stadt which found that the President of the Criminal Court had

not been competent to deal with his complaint. The applicant's public

law appeal was rejected on 14 May 1993 by the Federal Court.

The applicant's renewed challenge of Public Prosecutor F.H. was

dismissed by the Criminal Court on 24 June 1993.

On 6 August 1993 the Court of Appeal dismissed his further

appeal.

In its decision, the Court considered that there had been a

breach of Article 5 para. 3 of the Convention in that F.H. had first

remanded the applicant in custody and then indicted him. According to

the Federal Court's case-law, such a complaint could be raised upon

indictment. However, the applicant, who had been aware as from

4 December 1991 that F.H. would indict him, had waited over half a year

until 21 July 1992 when he had formally challenged F.H.

The applicant filed a public law appeal in which he pointed out

inter alia that he had referred to the issue already on 30 October

1990, i.e. immediately after the Court's judgment in the case of Huber

v. Switzerland had become known.

The public law appeal was dismissed by the Federal Court on

4 October 1993, the decision being served on 20 October 1993.

In its decision the Court considered that in the present case

Article 5 para. 3 of the Convention had "indirectly" (indirekt) been

breached, as F.H. had first imposed detention on remand on the

applicant and had later prepared the bill of indictment. The applicant

could, therefore, successfully have challenged F.H. However, the Court

recalled its case-law according to which good faith required that a

civil servant (Beamter) was challenged as early as possible. In the

present case the Court noted that the applicant had challenged F.H. on

21 July 1992. Already on 4 December 1991 the applicant had been

informed that F.H. would indict him. Indeed, on 3 December 1991 the

applicant had written to the Public Prosecutor's Office and challenged

F.H. However, after the information of 4 December 1991 he failed

immediately to file a challenge with the Criminal Court or to react

otherwise. On the contrary, on 7 January 1992 he wrote to F.H. and

urged him as soon as possible to prepare the bill of indictment,

without challenging F.H.; thus, the applicant had actually accepted

F.H. as Public Prosecutor. It breached good faith, therefore, if the

applicant challenged F.H. only half a year later.

The trial commenced on 11 October 1993. The Prosecution was

represented by the First Public Prosecutor.

On 22 December 1993 the Criminal Court of the Canton of Basel-

Stadt sentenced the applicant to seven and a half years' imprisonment.

COMPLAINTS

The applicant complains that the Federal Court accepted a breach

of Article 5 para. 3 of the Convention, yet incorrectly assumed that

he had belatedly invoked this right under this provision. Thus, he had

not acted negligently or against good faith; rather, he had complained

well before the trial began on 11 October 1993, for instance following

the prolongation of detention on remand on 26 October 1990, on

3 December 1991, and again after the indictment of 14 July 1992.

The applicant points out that the Code of Criminal Procedure of

the Canton of Basel-Stadt does not provide for remedies to challenge

breaches such as the one at issue. The position of an investigating

judge deciding on the imposition of detention on remand was only

introduced on 1 January 1993.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 March 1994 and registered

on 12 April 1994.

On 16 January 1996 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 9 April

1996. The applicant replied on 7 May 1996.

On 3 September 1996 the case was referred to the Plenary

Commission.

THE LAW

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

Convention that Public Prosecutor F.H. remanded him in custody and

later indicted him. He complains that the Federal Court, while

accepting a breach of Article 5 para. 3 (Art. 5-3) of the Convention,

nevertheless assumed that he had belatedly invoked his right under this

provision.

Article 5 para. 3 (Art. 5-3) of the Convention states, insofar

as relevant:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall be

brought promptly before a judge or other officer authorised

by law to exercise judicial power and shall be entitled to

trial within a reasonable time or to release pending trial

..."

2. The Government express doubts as to whether the applicant has

exhausted domestic remedies within the meaning of Article 26 (Art. 26)

of the Convention. Thus, when the applicant was brought before the

Acting Public Prosecutor F.H. on 4 July 1989, he should immediately

have filed a complaint under Article 5 para. 3 (Art. 5-3) of the

Convention. Given F.H.'s position in the Public Prosecutor's Office,

the applicant should already then have been aware of the fact that F.H.

could later represent the prosecution. On the other hand, Article 5

para. 3 (Art. 5-3) only concerns the first control of the legality of

a person's detention; any subsequent prolongation of detention no

longer falls under the guarantees of this provision.

The applicant submits that there was no other procedure in

Switzerland available to him to complain about the breach of Article 5

para. 3 (Art. 5-3) of the Convention. He contends that even today

there is disagreement in Switzerland as to how to proceed correctly in

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

How then can the applicant be criticised for not having employed the

correct procedure?

In the present case, it is true that the Federal Court in its

decision of 4 October 1993 dismissed the applicant's public law appeal.

It found that, contrary to good faith, the applicant had challenged

F.H. belatedly.

However, the Commission notes that the Federal Court in its

decision of 4 October 1993 also stated that Article 5 para. 3

(Art. 5-3) of the Convention had indirectly been breached as F.H. had

first imposed detention on remand on the applicant and had later

prepared the bill of indictment.

As a result, the Federal Court dealt in fact with the applicant's

complaint in substance. The Commission is therefore satisfied that the

applicant has complied with the requirement as to the exhaustion of

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention.

On the other hand, the issue whether or not the applicant could

nevertheless have been expected to voice his complaints at an earlier

stage of the proceedings falls to be examined together with the

substance of the application.

3. The Government further submit that the applicant has not complied

with the requirement of the six months' rule stipulated in Article 26

(Art. 26) of the Convention. It is recalled that, after the Court's

judgment in the case of Huber v. Switzerland on 23 October 1990, the

applicant filed public law appeals invoking Article 5 para. 3

(Art. 5-3) of the Convention which led to three judgments of the

Federal Court, i.e. on 21 December 1990, 14 May and 4 October 1993.

The applicant should have challenged F.H. immediately after the Huber

judgment, i.e. in the proceedings leading to the Federal Court's

decision of 21 December 1990. However, the application is out of time

as it was only introduced before the Commission on 10 March 1994.

The applicant contends that the respondent Government's argument

is untenable that he has not complied with the six months' rule

according to Article 26 (Art. 26) of the Convention. It would mean that

if a person failed to file a challenge the first time when the legality

of his detention was controlled, this would exclude the possibility of

filing such a challenge whenever his detention was prolonged later on.

In the applicant's submission the Government furthermore contradict

themselves when they submit that the applicant should have filed his

application before the Commission already against the Federal Court's

decision of 21 December 1990.

The Commission notes that, after the applicant's detention on

remand was prolonged on 26 October 1990, the applicant filed an appeal

in which he referred to the Court's judgment in the case of Huber v.

Switzerland (Eur. Court HR, Series A no. 188). However, his appeal was

dismissed on 8 November 1990 by the Indictment Chamber of the Canton

of Basel-Stadt, inter alia, as the complaints were premature. The

applicant's further appeal to the Federal Court was struck off the list

of cases on 21 December 1990 as the applicant had meanwhile been

released from detention on remand.

In the Commission's opinion, therefore, the remedies to the

Indictment Chamber and to the Federal Court could not have served

effectively to raise the complaints the applicant is now raising before

the Commission.

On the other hand, the Commission observes that the Federal Court

in its decision of 4 October 1993 effectively dealt with the complaints

at issue, the decision being served on 20 October 1993 and the

applicant filed his application with the Commission on 10 March 1994.

As a result, the Commission cannot uphold the Government's

objection according to which the applicant has not filed his

application "within a period of six months from the date on which the

final decision was taken" within the meaning of Article 26

(Art. 26) of the Convention.

4. Subsidiarily, the Government do not contest that in the present

case there has been a violation of Article 5 para. 3 (Art. 5-3) of the

Convention. However, the Government submit that the applicant waived

his right under this provision in that he did not challenge F.H. when

he became aware that the latter would represent the prosecution. Thus,

before the Huber judgment, the applicant merely complained of the

length of his detention on remand; only thereafter did the applicant

request another member of the Public Prosecutor's Office to represent

the prosecution. When on 4 December 1991 F.H. informed the applicant

that he himself intended to indict the applicant, the latter on 7

January 1992 merely complained of the length of the delay of the

indictment. Only on 21 July 1992 did the applicant formally challenge

F.H. However, the applicant should have done so as soon as he became

aware of the possibility, i.e. after he received F.H.'s letter on 4

December 1991.

The applicant points out that in his letter of 3 December 1991

he challenged F.H. This challenge was never withdrawn. In his letter

of 7 January 1992 he complained that there had still not been an

indictment, and that a further delay could no longer be tolerated. The

applicant requested "an indictment", but not "an indictment by F.H.".

Thus, it cannot be said that he did not contest the letter of F.H. of

4 December 1991. The applicant also points out that the respondent

Government in fact admit in his case a breach of Article 5 para. 3

(Art. 5-3) of the Convention.

The Commission finds that this complaint raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. This case cannot,

therefore, be regarded as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no

other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M. de SALVIA G.H. THUNE

Deputy Secretary Acting President

to the Commission of the Commission

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PLUMEY v. SWITZERLAND

PLUMEY v. SWITZERLAND

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