Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23149/93

by G.G.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 6 September 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 1 October 1993 by

G.G. against Switzerland and registered on 22 December 1993 under file

No. 23149/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the applicant may be

summarised as follows.

The applicant, a computer scientist, is a Swiss national born in

1945 and residing in Lausanne. Before the Commission he is represented

by Mr. Jean Lob, a lawyer practising in Lausanne.

On 11 August 1993 the applicant was arrested by order of the

Prosecutor General (Procureur général de la Confédération suisse). He

was suspected of having collaborated with Soviet intelligence agents

between 1979 and 1992 and having revealed technological information to

which he had access by virtue of his professional activities.

On the day of the arrest the applicant was questioned for several

hours at a police station. In the evening he was transferred to a

prison.

On 12 August 1993, the morning following the arrest, the

applicant requested a lawyer and demanded to be released. It was

agreed between the applicant and the investigating police officer that

the applicant's wife would choose and contact a lawyer and that the

applicant would petition the Prosecutor General in writing for his

release.

In the afternoon a lawyer chosen by the applicant's wife brought,

for the applicant to sign, a power of attorney and a petition for

release addressed to the Prosecutor General. The applicant signed

these documents.

On 13 August 1993, the request for release and a request for

permission for the lawyer to visit his client were refused by the

Prosecutor General. The decision stated inter alia that the

investigation had just begun, that it was necessary to question the

applicant further and that, in view of the fact that the circle of

persons involved in the alleged collaboration was still unknown, there

was a danger of collusion.

Also, in a telephone conversation with the applicant's lawyer,

the prosecutor in charge of the case allegedly declined to assure him

that his correspondence with his client would not be examined by the

authorities.

Thereupon the lawyer telephoned his client in prison and informed

him that he had been refused authorisation to visit him during the

coming weekend.

On 16 August 1993 the applicant's lawyer submitted a complaint

to the Ministry of Justice (Département Fédéral de Justice et Police)

challenging the decision of the Prosecutor General.

On 19 August 1993 the Ministry of Justice informed the lawyer

that in view of a recent change in the legislation, they had requested

an opinion from the Federal Court (Tribunal fédéral) about their

competence to examine the complaint. On 23 August 1993, after the

Federal Court had found that the issue was within its competence, the

applicant's lawyer submitted his observations and a formal complaint

to the Court.

In the meantime the applicant was interrogated for several hours

each working day.

On Monday, 16 August 1993 two letters from the lawyer dated

13 and 16 August 1993 and a copy of the decision of the Prosecutor

General of 13 August 1993 were delivered to the applicant.

On the morning of 26 August 1993 the applicant received a letter

from his lawyer dated 23 August 1993.

In the evening of the same say he was released by order of the

Prosecutor General.

On 15 September 1993 the Federal Court struck out of its list the

applicant's complaint concerning the refusal of the Prosecutor General

to release him and to authorise his lawyer's visits as it had become

without object.

On 14 February 1995 the Prosecutor General suspended the

preliminary investigation against the applicant. The decision stated

inter alia that although it had been established that the applicant had

had numerous contacts with Soviet secret agents, there had not been

sufficient proof that the applicant had unlawfully revealed secret

information during these meetings.

Upon the applicant's claim for damages, the Federal Court

(Chambre d'accusation du Tribunal fédéral) on 6 June 1995 awarded the

applicant an indemnity of 200 SF for each day of his detention. The

Court stated that a suspension of criminal proceedings at the

preliminary police inquiry stage could give rise to a claim for damages

whenever the acts of the investigation authorities had involved a

serious prejudice for the accused. Since the detention on remand was

in itself such a serious prejudice, the applicant was entitled to an

equitable indemnity.

COMPLAINTS

The applicant complains under Article 6 para. 3(c) of the

Convention that he was deprived of his right to have contact with his

lawyer during the sixteen days of detention. The refusal of the

authorities to guarantee the privacy of the correspondence between the

applicant and his lawyer during the detention was also contrary to

Article 6 para. 3(c) of the Convention.

The applicant also complains under Article 13 in conjunction with

Article 6 para. 3(c) of the Convention that the decision of the Federal

Court to strike the applicant's appeal out of its list amounted to a

denial of an effective remedy.

THE LAW

1. The applicant complains under Article 6 para. 3(c)

(Art. 6-3-c) of the Convention of the restrictions on contact with his

lawyer and of the authorities' refusal to promise that they would not

monitor the correspondence between him and his lawyer.

Article 6 paras. 1 and 3(c) (Art. 6-1, 6-3-c) provide, insofar

as relevant, as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ...;

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

c. to defend himself in person or through legal

assistance ..."

The Commission recalls that the primary purpose of Article 6

(Art. 6), as far as criminal matters are concerned, is to ensure as a

whole a fair trial by a "tribunal" competent to determine "any

criminal charge". Nevertheless, the requirements of paragraph 3(c) of

Article 6 (Art. 6-3-c) could be relevant in pre-trial proceedings

insofar as the fairness of the trial is likely to be seriously

prejudiced by an initial failure to comply with them (Eur. Court H.R.,

Imbrioscia judgment of 24 November 1993, Series A no. 275, p. 13,

para. 36; cf. also Can v. Austria, Comm. Report 12.7.84, paras. 49,

50, Eur. Court H.R., Series A no. 96, pp. 15, 16).

However, under Article 25 (Art. 25) of the Convention the

Commission may examine complaints only from persons claiming to be

victims of a violation of one of the Convention provisions.

In the present case the applicant's complaints concern an early

stage of the proceedings, namely the police inquiry against him, and

not a "trial" before a "tribunal" within the meaning of Article 6

(Art. 6) of the Convention. The criminal proceedings against the

applicant were suspended at this stage and he has never been indicted

and brought to trial. Therefore, he has not in fact suffered any

detrimental effect of the alleged violations of Article 6 para. 3(c)

(Art. 6-3-c) and he cannot claim to be a victim of such violations.

The Commission has also noted that the applicant has received

compensation for the prejudice entailed by his detention on remand.

It follows that this part of the application is manifestly ill-

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

Convention.

2. Under Article 13 (Art. 13) the applicant complains that he had

no effective remedy at his disposal in respect of the above complaint.

The Commission finds that the applicant has not made out an

arguable claim under Article 6 para. 3(c) (Art. 6-3-c) of the

Convention (cf. Eur. Court H.R., Plattform "Ärzte für das Leben"

judgment of 21 June 1988, Series A no. 139, p. 11 et seq., para. 27 et

seq.).

The remainder 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 APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

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

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G.G. v. SWITZERLAND

G.G. v. SWITZERLAND

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