Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23090/93

by C. S.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. S. TRECHSEL

J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

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 24 November 1993

by C. S. against Switzerland and registered on 15 December 1993 under

file No. 23090/93;

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

21 November 1995 and the observations in reply submitted by the

applicant on 9 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1948, is a scientist

residing at Zofingen in Switzerland. Before the Commission he is

represented by Mr. R. Sutter, a lawyer practising at Wil.

On 26 February 1988 the Cantonal Police (Kantonspolizei) of the

Canton of Aargau informed the applicant that criminal proceedings had

been instituted against him on account of traffic offences.

On 2 September 1988 the District Office (Bezirksamt) of the

Canton of Aargau issued a criminal order (Strafbefehl) imposing a fine

of 350 SFr on the applicant. The latter was accused of having driven

on the motorway too closely behind another car, and of having overtaken

on the motorway a car on the right hand lane. The applicant filed an

objection against the criminal order.

On 19 January 1989 the Zofingen District Court (Bezirksgericht)

sentenced the applicant to a fine of 350 SFr on account of these

offences.

The applicant's appeal was dismissed by the Second Criminal

Chamber (Strafkammer) of the Court of Appeal (Obergericht) of the

Canton of Aargau on 20 April 1989.

On 15 November 1989 the Federal Court (Bundesgericht) dismissed

the applicant's public law appeal (staatsrechtliche Beschwerde).

However, it upheld the applicant's plea of nullity (Nichtigkeitsbe-

schwerde), quashed the decision of the Court of Appeal of 20 April 1989

and referred the case back to the previous court. The Court found that

it had not been sufficiently established whether at the time of the

events there had been dense traffic in which case it would have been

permitted to drive in a parallel line (parallele Kolonne) on the right

hand lane on the motorway. The decisions were served on the applicant

on 8 December 1989.

On 11 January 1990 the Second Criminal Chamber of the Court of

Appeal of the Canton of Aargau again sentenced the applicant to a fine

of 350 SFr for the offences concerned.

The applicant again filed a public law appeal and a plea of

nullity.

On 1 May 1990 the Federal Court rejected the plea of nullity as

being out of time.

On 29 June 1990 the Federal Court upheld the public law appeal

and quashed the decision of the Court of Appeal of 11 January 1990.

The Court found that in the previous proceedings the applicant had not

been sufficiently heard.

This decision was served on the applicant on 5 September 1990.

On 6 September 1990, the Court of Appeal of the Canton of Aargau

granted the applicant a time-limit of 20 days to file supplementary

observations on the issue of the punishment to be expected. Against

this decision the applicant filed a public law appeal.

On 6 December 1990 the Second Criminal Chamber of the Court of

Appeal sentenced the applicant a third time to a fine of 350 SFr for

the offences concerned. Against this decision the applicant filed a

further public law appeal.

The applicant's public law appeal against the decision of

6 September 1990 was rejected by the Federal Court on 14 January 1991

as the contested decision merely constituted an interim decision.

On 22 October 1991 the Federal Court upheld the applicant's

further public law appeal and quashed the decision of 6 December 1990.

The Court found that the Court of Appeal had incorrectly restricted the

possibility to file supplementary observations to the issue of the

punishment to be expected.

Also on 22 October 1991 the Federal Court struck the applicant's

plea of nullity off its list of cases as no longer having any object

(gegenstandslos).

The Federal Court's decisions were served on the applicant on

10 January 1992.

On 20 January 1992 the Court of Appeal of the Canton of Aargau

granted the applicant a time-limit of 20 days to file supplementary

observations on the factual and legal issues of the case.

On 11 March 1992 the applicant complained that the judges of the

Second Criminal Chamber of the Court of Appeal were no longer objective

if they had to decide a fourth time on the same case, particularly if

they felt insulted (gekränkt) by the Federal Court.

On 14 April 1992 the Administrative Commission (Verwaltungskom-

mission) of the Court of Appeal transferred the case to the First

Criminal Chamber of the Court of Appeal.

On 5 June 1992 the First Criminal Chamber of the Court of Appeal

fixed a hearing for 19 August 1992. Following the hearing, the Court

of Appeal confirmed the fine on the same day. In its decision the

Court noted the length of the proceedings which had already lasted

approximately four and a half years. The Court noted that the case was

complex in that from the outset the facts and the legal assessment of

the case had been disputed. The applicant could not be blamed for

having prolonged the proceedings, though the authorities could also not

be blamed. As a whole, the length of the proceedings did not warrant

terminating the proceedings; the applicant had not suffered any

disadvantages, and had from the outset known that he would at most be

fined 350 SFr, which was less than a tenth of his monthly income.

On 19 March 1993 the Federal Court dismissed the applicant's

public law appeal. In respect of the length of the proceedings the

Court noted that from the outset the factual and legal issues of the

case had been disputed. It considered that the length of the

proceedings was above average, though this had not caused the applicant

any disadvantage; the uncertainty whether he would be sentenced to a

fine for a traffic offence was not serious. Thus, even if there had

been a breach of Article 6 of the Convention, no sanctions would be

called for. As a result, the Federal Court left open whether the

length of the proceedings had breached the requirement of a speedy

decision (Beschleunigungsgebot).

Also on 19 March 1993 the Federal Court dismissed the applicant's

plea of nullity, considering inter alia that the applicant had not

suffered any disadvantage on account of the length of the proceedings.

The Federal Court's decisions were served on the applicant on

2 June 1993.

COMPLAINTS

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

of the length of the proceedings. He cannot be blamed for having

employed all legal remedies, and the delays were caused by the Court

of Appeal which on a number of occasions decided contrary to his

constitutional rights. He had to appear three times before court and

spent countless hours studying the case-file.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 November 1993 and registered

on 15 December 1993.

On 6 September 1995 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

21 November 1995. The applicant replied on 9 April 1996.

THE LAW

The applicant complains of the length of the proceedings. He

relies on Article 6 para. 1 (Art. 6-1) of the Convention which 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 contend that the application is manifestly ill-

founded. In the Government's opinion, the proceedings commenced on

2 September 1988 when the Zofingen District Office issued a penal

order. It is further submitted that the case raised very complex

factual and legal issues. Thus, the Federal Court's decision of

15 November 1989 served to clarify the case-law on the matter.

Moreover, the applicant constantly disputed the facts; he also filed

ten appeals of which three were admitted by the Federal Court. The

domestic judicial authorities, on the other hand, conducted their

proceedings within very short periods of time. Thus, 15 decisions were

handed down within four and a half years.

The Government also submit that only exceptionally can it play

a part under Article 6 (Art. 6) of the Convention if a higher court is

called upon to correct the decision of a lower court. In the present

case there can be no question of any obstruction of the Federal Court

on behalf of the Cantonal Court. Indeed, the latter always gave

grounds for its decisions. In any event, the fine of 350 SFr was of

a minor nature.

The applicant submits that the proceedings in his case commenced

on 26 February 1988 when the Cantonal Police informed the applicant

that criminal proceedings had been instituted against him on account

of traffic offences. Moreover, it cannot be said that the domestic

authorities gave their many decisions one after the other. Rather, the

applicant at times filed parallel appeals; moreover, when the Federal

Court upheld his public law appeal, it was not obliged to consider his

plea of nullity.

In the applicant's opinion the case could not be considered

complex, in particular as the facts remained the same throughout the

proceedings. The applicant can also not be made responsible for faulty

decisions on the part of the courts. Finally, the applicant disputes

the implication that in cases involving offences of a minor nature he

shall lose his right to speedy proceedings. He also does not lose this

right by filing various appeals.

The Commission considers that the period to be examined under

this provision in the present case commenced on 26 February 1988 when

charges were brought against the applicant, and ended on 2 June 1993

when the decisions of the Federal Court of 19 March 1993 were served

on the applicant.

The relevant period therefore lasted five years, three months and

seven 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 is at stake for the applicant (cf. Eur.

Court HR, Mansur v. Turkey judgment of 8 June 1995, Series A no. 321,

para. 61; Nibbio v. Italy judgment of 26 February 1992, Series A

no. 228-A, p. 10, paras. 16 and 18).

The present case involved the offences of driving too closely

behind another car on the motorway and overtaking on the right hand

lane. In the Commission's opinion, the factual and legal points at

issue were of a certain complexity which justified to some extent the

length of the proceedings conducted against the applicant.

Moreover, the applicant did not unreasonably contribute to the

overall length of the criminal proceedings. On the other hand, the

applicant filed numerous appeals. While he cannot be blamed for having

made full use of the remedies available to him under domestic law, his

behaviour is an objective fact; it cannot be attributed to the

respondent State and must be taken into account for the purpose of

determining whether or not the reasonable time has been exceeded (Eur.

Court HR, Lechner and Hess v. Austria judgment of 23 April 1987,

Series A no. 118, p. 19, para. 49).

As regards the authorities' conduct, the Commission notes that

four instances gave altogether 13 decisions relating to the charges

raised against the applicant, namely the District Office on 2 September

1988; the District Court on 19 January 1989; the Court of Appeal on

20 April 1989; the Federal Court (two decisions) on 15 November 1989;

the Court of Appeal again on 11 January 1990; the Federal Court on

1 May and on 29 June 1990; the Court of Appeal on 6 December 1990; the

Federal Court on 22 October 1991; the Court of Appeal on 19 August

1992; and the Federal Court (two decisions) on 19 March 1993.

Moreover, on 1 May 1990 the Federal Court rejected the

applicant's plea of nullity as being inadmissible. The Court of Appeal

fixed time-limits for the applicant to file supplementary observations

on 6 September 1990 and 20 January 1992. On 14 April 1992 the

Administrative Commission transferred the case from the Second to the

First Criminal Chamber of the Court of Appeal, and on 19 August 1992

an appeal hearing was held. On 22 October 1991 the Federal Court

struck the applicant's plea of nullity off its list of cases.

In the Commission's opinion the authorities thus constantly

pursued the case.

The Commission further considers that no unduly lengthy periods

of inactivity transpire. Moreover, the case does not fall within the

category of cases which in the Court's case-law have been considered

as requiring particular diligence (see Nibbio v. Italy judgment,

loc.cit.). The Commission finds no indication that the length of the

proceedings exceeded the notion of a "reasonable time" within the

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

It follows that the case is 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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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