Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19800/92

by R. M. D.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 18 October 1995, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 26 March 1992 by

R. M. D. against Switzerland and registered on 6 April 1992 under file

No. 19800/92;

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

28 April 1995 and the observations in reply submitted by the

applicant on 16 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant, a Swiss citizen born in 1965, resides in Benglen

in Switzerland. Before the Commission he is represented by Mr. Bruno

Häfliger, a lawyer practising in Lucerne.

In January 1992 the Lucerne Cantonal Police (Kantonspolizei)

requested the Zurich Cantonal Police to arrest the applicant who was

suspected of having committed a burglary in the Canton of Lucerne. On

13 January 1992 the Zurich Cantonal Police arrested the applicant and

remanded him in custody in Uster in the Canton of Zurich. It appears

that the applicant was suspected of having committed thefts and other

offences in the Cantons of Zurich, Lucerne, Bern and Aargau.

On 15 January 1992 the applicant requested his immediate release

from custody. He was released from Uster prison on 17 January 1992.

On the same day the applicant was transferred to the Canton of

Lucerne where, still on 17 January 1992, the District Governor

(Amtsstatthalter) ordered his detention on remand.

On 20 January 1992 the applicant's lawyer telephoned the Willisau

District Prosecutor and requested that he, the lawyer, be appointed as

defence counsel and permitted to see the applicant on 21 January 1992.

The District Prosecutor replied that the applicant would be transferred

on 21 January 1992 to the District Court (Richteramt) of Aarwangen in

the Canton of Bern for further investigations.

On 21 January 1992 the District Governor of Willisau confirmed

in writing that the applicant had been transferred to Aarwangen.

The applicant's lawyer intended to contest the decision to detain

the applicant in Aarwangen. However, he was told by the Aarwangen

investigating judge on the telephone that the latter had not himself

issued a detention order as the order issued on 17 January 1992 by the

Willisau District Governor was still valid.

On 23 January 1992 the applicant filed an appeal (Rekurs) with

the Court of Appeal (Obergericht) of the Canton of Lucerne against the

detention order of 17 January 1992.

On 24 January 1992 the applicant was transferred to the Canton

of Glarus as the Glarus investigating judge (Verhörrichter) wished to

question the applicant about a burglary in Glarus. On the same day the

Glarus investigating judge issued a detention order.

On 27 January 1992 the Lucerne Court of Appeal struck the appeal

of 23 January 1992 off its list of cases as the applicant had been

transferred to Aarwangen on 21 January 1992 and was therefore no longer

detained in Lucerne; it had therefore to be assumed that the detention

order of 17 January 1992 had become obsolete (dahingefallen).

On 31 January 1992 the applicant filed a public law appeal

(staatsrechtliche Beschwerde) against the decision of the Court of

Appeal of 27 January 1992.

On 3 February 1992 the applicant was transferred from the Canton

of Glarus to the Canton of St. Gallen where he was detained on remand

on suspicion of having committed burglary in the Canton of Glarus.

On 12 February 1992 the Federal Court (Bundesgericht) dismissed

the applicant's public law appeal. The decision stated inter alia:

"The view can reasonably be maintained that the Court of

Appeal no longer need consider the merits of an appeal against

a detention order if the detention in the Canton of Lucerne ends

during the pending appeal proceedings, either as the accused is

released or as he is detained in another Canton and the detention

on remand in the Canton of Lucerne becomes obsolete. The Federal

Court has proceeded in a similar manner. Thus, disregarding

exceptional cases, (the Federal Court) will regard as obsolete

and strike off its list an appeal against detention if the

applicant has been released during the pending Federal Court

proceedings ... The explanation for this case-law lies in the

fact that in such a case there is no longer a present practical

interest in a decision on the appeal against detention, not even

in respect of any claims for compensation and satisfaction ...

These considerations may also be applied to cantonal appeal

proceedings. The applicant can still maintain in any subsequent

compensation proceedings that he was unlawfully arrested in the

Canton of Lucerne."

"Es lässt sich mit sachlichen Gründen die Ansicht

vertreten, das Obergericht müsse einen Haftrekurs nicht mehr

materiell behandeln, wenn die Haft im Kanton Luzern während der

Hängigkeit des Rekursverfahrens beendet wird, sei es durch

Freilassung des Angeschuldigten oder durch dessen Inhaftierung

in einem anderen Kanton, mit welcher die Untersuchungshaft im

Kanton Luzern dahinfällt. Das Bundesgericht geht in analoger

Weise vor, schreibt es doch - abgesehen von Ausnahmefällen -

eine Haftbeschwerde als gegenstandslos geworden ab, wenn der

Beschwerdeführer während der Hängigkeit des bundesgerichtlichen

Verfahrens aus der Haft entlassen wird ... Es begründet diese

Rechtsprechung damit, es bestehe in einem solchen Fall kein

aktuelles praktisches Interesse mehr an der Behandlung der

Haftbeschwerde, und zwar auch nicht im Hinblick auf die

Geltendmachung von Schadenersatz- und Genugtuungsansprüchen ...

Diese Überlegung lässt sich auch auf ein kantonales

Rekursverfahren übertragen. Der Beschwerdeführer kann noch in

einem allfälligen Entschädigungsverfahren geltend machen, er sei

im Kanton Luzern zu Unrecht verhaftet worden."

Insofar as the applicant complained that the authorities, by

conducting a sort of joint procedure (Sammelverfahren), deprived him

of his constitutional and Convention rights, the Court found that it

would have been preferable if the Willisau District Prosecutor had

declared in writing that the applicant was no longer detained in the

Canton of Lucerne. However, this could not change the conclusion that

the contested decision of the Lucerne Court of Appeal raised no issue

under Article 5 para. 4 of the Convention, "as the applicant already

when filing his appeal was no longer remanded in custody in the Canton

of Lucerne" ("weil sich der Beschwerdeführer bereits bei Einreichung

des Rekurses nicht mehr im Kanton Luzern in Untersuchungshaft befand").

Finally, the Court declared inadmissible the applicant's

complaint that he had not been officially represented by a lawyer, as

this matter had not been the subject of the appeal proceedings before

the Court of Appeal.

On 21 February 1992 the applicant was transferred from the Canton

of St. Gallen to the Canton of Schwyz where he was detained on remand.

His request for release from detention in the Canton of Schwyz

of 24 February 1992 was rejected on 25 February 1992.

On 25 February 1992 the applicant was transferred from the Canton

of Schwyz to the Canton of Zurich.

On 3 March 1992 the applicant was transferred to the Canton of

Aargau where he was detained on remand. Subsequently, he was

transferred to the Canton of Zurich. He was released from detention

on 13 March 1992.

COMPLAINTS

The applicant complains under Article 5 para. 4 of the Convention

that the Lucerne Court of Appeal and the Federal Court did not deal

with his appeal against his detention on remand, as he was no longer

detained in the Canton of Lucerne. This joint procedure

(Sammelverfahren), which moves the applicant from one Canton to

another, deprives him of his rights. The applicant points out that he

was never formally released from detention in the Canton of Lucerne.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 March 1992 and registered

on 6 April 1992.

On 17 January 1995 the Commission (Second Chamber) decided to

communicate the application to the respondent Government and invite

them to submit observations on the admissibility and merits of the

application.

The Government's written observations were submitted on 28 April

1995. The applicant replied on 16 May 1995.

THE LAW

1. The applicant complains that the Lucerne Court of Appeal and the

Federal Court did not deal with his appeal against his detention on

remand, as he was no longer detained in the Canton of Lucerne. He also

submits that he was never formally released from detention in the

Canton of Lucerne. This joint procedure (Sammelverfahren), which moves

the applicant from one Canton to another, deprives him of his rights

under Article 5 para. 4 (Art. 5-4) of the Convention which states:

"Everyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings by which the lawfulness of

his detention shall be decided speedily by a court and his

release ordered if the detention is not lawful."

2. The Government contest that the applicant has complied with the

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

The Government recall at the outset that each Canton has its own

Code of criminal procedure. In general, the powers of the Swiss courts

comply with the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention.

The Government further note that the present applicant is in fact

complaining, on the one hand, of the proceedings as a whole; and, on

the other, that the Court of Appeal of the Canton of Lucerne and the

Federal Court did not deal with his complaint.

As regards the applicant's complaints about the proceedings as

a whole, the Government point out that in his public law appeal before

the Federal Court he only complained about detention in the Canton of

Lucerne, not of the detention in the Cantons of Zurich, Bern and Glarus

where procedures compatible with Article 5 para. 4 (Art. 5-4) of the

Convention would have been at his disposal.

As regards detention in the Canton of Lucerne the Government

refer to the Federal Court's decision of 12 February 1992 according to

which the applicant was free to institute compensation proceedings for

his unlawful detention. However, he failed to do so. Such proceedings

would not have been in conflict with the requirements of Article 5

paras. 4 and 5 (Art. 5-4, 5-5) of the Convention. In particular, the

court concerned could have examined the legality of his detention.

The applicant generally contests the Government's submissions.

The State as a whole must ensure as a party to the Convention that the

Convention provisions can be complied with on the whole territory of

Switzerland.

The Commission recalls its case-law under Article 26 (Art. 26)

of the Convention according to which Article 26 (Art. 26) of the

Convention requires the exhaustion of those remedies which relate to

the breaches of the Convention alleged and at the same time can provide

effective and sufficient redress (see No. 13057/87, dec. 15.3.89,

D.R. 60 p. 243).

In the present case the Commission notes that in the domestic

proceedings the applicant complained before the Lucerne Court of Appeal

and the Federal Court about his detention on remand in the Canton of

Lucerne; he also complained about the joint procedure which deprived

him of his constitutional and Convention rights. On 12 February 1992

the Federal Court in last resort nevertheless dismissed his complaint

as he was no longer detained in the Canton of Lucerne.

Before the Commission the applicant is now complaining under

Article 5 para. 4 (Art. 5-4) of the Convention that the Lucerne Court

of Appeal and the Federal Court did not deal with his appeal against

his detention on remand, as he was no longer detained in the Canton of

Lucerne.

In the Commission's opinion, there being no further domestic

remedy available against the Federal Court's decision, the applicant

is entitled to complain before the Commission about the decision of the

Federal Court.

It is true that in the Government's submissions, the applicant

should subsequently also have filed further complaints in other

Cantons. In the Commission's opinion, however, had the applicant,

after his transfer to another Canton, again filed a complaint about

detention on remand, he could reasonably expect that the Federal Court

would again have dismissed his appeal on the ground that he had again

been transferred to another Canton. The applicant could not,

therefore, be expected to file further appeals in other Cantons.

The Government also submit that the applicant could have

introduced an action for compensation before the courts of the Canton

of Lucerne. The Commission notes, however, that the applicant, when

filing his appeal with the Court of Appeal of the Canton of Lucerne and

the Federal Court, was requesting his release from detention. It is

not in dispute that, had these appeals been successful, the applicant

would have been released from detention on remand. The Commission

finds therefore that the applicant could not be expected to file yet

a further action, now for compensation. Furthermore, an action for

compensation could only be an effective remedy in a case where the

alleged violation did in fact cause some material damage to the person

concerned. However, in the present case it does not transpire that the

applicant suffered any pecuniary disadvantages on account of the

absence of a remedy under Article 5 para. 4 (Art. 5-4) of the

Convention.

The application cannot therefore be declared inadmissible for

non-exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

3. The Commission, having examined these complaints, finds that they

raise serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

The application 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 ground for declaring it inadmissible has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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R.M.D. v. SWITZERLAND

R.M.D. v. SWITZERLAND

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