Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20320/92

by L. K.-D.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 7 July 1992 by

L. K.-D. against Switzerland and registered on 20 July 1992 under file

No. 20320/92;

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 Swiss citizen born in 1937, is a farmer residing

at Reichenburg in Switzerland. Before the Commission he is represented

by Dr M. Ziegler, a lawyer practising in Lachen in Switzerland.

Particular circumstances of the case

I.

On 30 June 1988 the applicant scolded a schoolboy of 13 years who

had allegedly stolen his cherries. The applicant apparently tore the

boy from his bicycle and knelt on him, whereupon the latter had to be

brought to a doctor. The parents reported the applicant to the March

District Office (Bezirksamt).

On 8 August 1989 the March investigating judge issued a bill of

indictment against the applicant on the ground of bodily injury

(Körperverletzung), alternatively of assault (Tätlichkeiten).

On 16 March 1990 the March District Court (Bezirksgericht)

acquitted the applicant of the offence of bodily injury, while

sentencing him to a fine of 100 SFr on account of assault. The

judgment stated that an appeal (Berufung) could be filed.

II.

The applicant filed an appeal with the Cantonal Court (Kantons-

gericht) of the Canton of Schwyz, requesting his acquittal or at least

that he should not be punished.

On 25 May 1990 the President of the Cantonal Court informed the

applicant that he could only file a plea of nullity (Nichtigkeitsbe-

schwerde), not an appeal. The applicant was granted a time-limit of

ten days for filing a plea of nullity.

On 7 June 1990 the applicant filed a plea of nullity with the

Court of Appeal, while upholding his appeal. In his plea of nullity

he complained that the investigating judge should first have issued a

penal order (Strafbefehl), rather than immediately indicting him. He

further complained that the previous court had failed to examine his

submission that there was no connection between the medical results and

his treatment of the victim. The applicant also referred to Section

177 para. 3 of the Penal Code (Strafgesetzbuch) according to which

there shall be no punishment where an insult is answered immediately

by another insult or assault. Finally, the applicant complained of the

imposition of costs.

On 25 June 1990 the Cantonal Court rejected the applicant's

appeal and dismissed his plea of nullity in two separate decisions,

given by the Criminal Chamber (Strafkammer) and the Second Appeal

Chamber (Rekurskammer), respectively. The Criminal Chamber was

composed of judges S., W., R., A. and H.

In respect of the appeal, the Criminal Chamber found inter alia

that the contested decision was incorrect in that it had, on the basis

of the same facts, both acquitted and convicted the applicant.

However, the District Court should only have pronounced itself on the

issue of assault. Thus, only the conviction of assault could be

contested. Assault constituted a misdemeanour (Übertretung) according

to Sections 101 and 126 of the Swiss Penal Code (Strafgesetzbuch; see

below, Relevant domestic law). However, an appeal against a

misdemeanour was only possible if the fine exceeded 1,500 SFr, whereas

the applicant's fine amounted to 100 SFr. As a result, the Criminal

Chamber declared the appeal inadmissible (auf die Berufung wird nicht

eingetreten).

In respect of the plea of nullity the Second Appeal Chamber found

inter alia that the District Court had implicitly established a

relation between the marks on the schoolboy's body, confirmed by the

doctor, and the applicant's conduct. The Court moreover examined

Section 177 para. 3 of the Penal Code, finding inter alia that this

provision did not cover cases where the original act was bodily

assault, rather than insult.

III.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht).

The Federal Court transmitted a copy of the applicant's public

law appeal to the Cantonal Court of the Canton of Schwyz which on

21 September 1990 filed its observations thereupon. The observations

related in particular to the procedure chosen by the Cantonal Court;

the composition of the Criminal Chamber; the necessity of an oral

hearing; the public pronouncement of a judgment; and the costs. The

observations of the Cantonal Court were not transmitted to the

applicant.

The Federal Court dismissed the public law appeal on

25 October 1991, the decision being served on the applicant on

6 January 1992.

In its decision the Federal Court undertook a legal appreciation

of the applicant's public law appeal in the light of its case-law and

of the provisions of the Convention, the Federal Constitution, the

Federal Judiciary Act and of various provisions of the legal order of

the Canton of Schwyz. The Federal Court further relied on the previous

decisions in the case, on information stated in the State Calendar

(Staatskalender) of the Canton of Schwyz, and on the medical report

issued after the original incident.

The Federal Court first examined the applicant's complaint that

the Criminal Chamber had not been composed of the judges mentioned in

the State Calendar of the Canton of Schwyz. The Court found that the

Criminal Chamber had consisted of its president, two judges of the

Criminal Chamber, and two judges of the Civil Chamber. The judges were

therefore neither substitute judges nor judges appointed for the

particular case.

In respect of the requirements of an oral hearing and the public

pronouncement of the judgment, the Federal Court noted that the

applicant was solely complaining about the appeal proceedings before

the Criminal Court (die gerügten Rechtsverletzungen ausschliesslich das

Berufungsverfahren betreffen), and that he was not entitled to an oral

hearing in a case where his appeal was declared inadmissible.

Insofar as the applicant complained that his appeal had been

declared inadmissible, the Federal Court found that the Criminal

Chamber had correctly stated that in respect of one set of facts only

an acquittal or a conviction was possible. Moreover, appeals were

inadmissible in cases of misdemeanours not exceeding 1,500 SFr.

The applicant also filed a plea of nullity (Nichtigkeitsbe-

schwerde) which the Federal Court dismissed on 4 November 1991.

Relevant domestic law

I.

According to Section 101 of the Swiss Penal Code

(Strafgesetzbuch), misdemeanours (Ãœbertretungen) will be punished with

imprisonment or a fine, or solely with a fine.

Section 126 of the Penal Code provides that assault

(Tätlichkeiten), which does not injure the body or damage health, is

punished, upon a formal complaint (Strafantrag), with a fine or with

imprisonment.

II.

According to Section 84 para. 1 (a) of the Federal Judiciary Act

(Organisationsgesetz), a public law appeal serves to complain in

particular about a violation of constitutional rights. According to

the Federal Court's case-law, complaints about a breach of Convention

rights may also be raised.

According to Section 93 of the Federal Judiciary Act, the Federal

Court may submit a public law appeal for observations to the authority

which took the contested decision; if the reasons on which the Federal

Court intended to base its decision are only contained in the resulting

observations, the applicant may be granted a time-limit to supplement

his plea of nullity.

III.

According to Section 152 of the Code of Criminal Procedure

(Strafprozessordnung) of the Canton of Schwyz, a plea of nullity serves

to complain about the breach of an essential principle of procedure;

a factual assumption (tatsächliche Annahme) which is arbitrary or not

supported by the file; or a breach of substantive law.

COMPLAINTS

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

about the proceedings before the courts of the Canton of Schwyz, and

about the public law proceedings before the Federal Court:

- Thus, he could not reply to the observations submitted by the

Cantonal Court of the Canton of Schwyz on 21 September 1990 to the

Federal Court. He submits that the Federal Court relied in substance

(massgeblich) on these observations.

- He complains of the composition of the Criminal Chamber, namely

that two judges sat on the bench who belonged to another Chamber. In

the applicant's opinion, it cannot fall to the Court President to

compose a court at his discretion, particularly as the composition was

not envisaged by the State Calendar of the Canton of Schwyz.

- He could not express himself (überhaupt nicht gehört) before the

Cantonal Court in respect of his appeal, and there was no exchange of

submissions in respect of his plea of nullity, particularly as the

Public Prosecutor was also not heard.

- Moreover, the Cantonal Court did not conduct an oral hearing and

did not pronounce its judgment in public.

2. Under Article 6 para. 2 of the Convention the applicant complains

that the Cantonal Court held that he had been wrongly acquitted by the

District Court; however, his acquittal had already become final, as it

had not been contested by an appeal.

3. Under Article 2 of Protocol No. 7 to the Convention the applicant

complains that in his case there was no second instance court to decide

on the first instance conviction.

THE LAW

1. The applicant raises various complaints under Article 6 para. 1

(Art. 6-1) of the Convention about the appeal proceedings before the

Criminal Chamber of the Cantonal Court of the Canton of Schwyz. He

complains in particular of the composition of the Criminal Chamber,

namely that two judges sat on the bench who belonged to another

Chamber. He further complains that he could not express himself before

the Criminal Chamber, and that the latter did not conduct an oral

hearing and did not pronounce its judgment in public.

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

as relevant for the present application:

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

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law. Judgment

shall be pronounced publicly ..."

The Commission considers that in its decision of 25 June 1990 the

Criminal Chamber declared the applicant's appeal inadmissible as this

remedy was only open where the fine exceeded 1,500 SFr, whereas the

applicant's fine amounted to 100 SFr.

Thus, the Criminal Chamber did not decide on the applicant's

appeal. The proceedings did not therefore concern "the determination

of a criminal charge against (the applicant)" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. The guarantees of this

provision invoked by the applicant do not therefore apply to the

applicant's complaints.

This part of the application is therefore incompatible ratione

materiae with the provisions of the Convention according to Article 27

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

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

applicant complains that there was no exchange of submissions in

respect of his plea of nullity before the Second Appeal Chamber of the

Cantonal Court of the Canton of Schwyz, particularly as the Public

Prosecutor was also not heard.

The applicant also complains under this provision that he could

not reply to the observations submitted by the Cantonal Court of the

Canton of Schwyz on 21 September 1990 to the Federal Court.

According to the Convention organs' case-law, the principle of

equality of arms implies that each party shall have a reasonable

opportunity of presenting his case to the Court under conditions which

do not place him at a substantial disadvantage vis-à-vis his opponent.

However, this principle is only one feature of the wider concept of

fair trial by an independent and impartial tribunal (see Eur. Court

H.R., Borgers judgment of 30 October 1991, Series A no. 214-B, p. 31,

para. 24; mutatis mutandis Dombo Beheer B.V. judgment of

27 October 1993, Series A no. 274, p. 19, para. 33).

As regards the proceedings before the Second Appeal Chamber, the

Commission notes that the applicant had the opportunity of presenting

his views in his plea of nullity to the Second Appeal Chamber of the

Cantonal Court of the Canton of Schwyz. As the Public Prosecutor did

not comment on the plea of nullity, the applicant was not at a

disadvantage vis-à-vis his opponent.

The Commission has next examined the complaint that the applicant

could not reply to the observations submitted by the Cantonal Court to

the Federal Court.

However, the applicant has not pointed out instances whereby the

Cantonal Court listed grounds unknown to the applicant and proving

decisive for the Federal Court's judgment. Indeed, he has not

explained in what respect the Federal Court relied on these

observations at all.

The Commission has therefore examined the observations which the

Cantonal Court filed with the Federal Court. They related to the

procedure chosen by the Cantonal Court in respect of the applicant's

remedies; the composition of the Court; the necessity of an oral

hearing; the public pronouncement of a judgment; and the costs of the

proceedings. In the Commission's opinion there is no indication that

in its ensuing decision the Federal Court relied on any new factual

arguments submitted by the Cantonal Court in its observations.

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.

3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that in respect of his plea of nullity the Second Appeal

Chamber of the Cantonal Court did not conduct an oral hearing and did

not pronounce its judgment publicly.

According to the Convention organs' case-law, the absence of

publicity before a second or third instance court may be justified by

the special features of the proceedings at issue (see Eur. Court H.R.,

Sutter judgment of 22 February 1984, Series A no. 74, pp. 13 et seq.,

paras. 30 et seq.; Helmers judgment of 29 October 1991, Series A no

212-A, p. 16, para. 36).

In the present case it is not disputed that the trial in first

instance before the March District Court was conducted publicly.

The Commission has therefore had regard to the nature of the

issues to be decided by the Second Appeal Chamber of the Cantonal Court

upon the applicant's plea of nullity.

According to Section 152 of the Schwyz Code of Criminal

Procedure, a plea of nullity serves to complain about the breach of an

essential principle of procedure; a factual assumption which is

arbitrary or not supported by the file; or a breach of substantial law.

In his plea of nullity of 7 June 1990, the applicant complained

that the investigating judge had not issued a penal order; that the

March District Court had not examined the applicant's submission that

there was no connection between the medical results and his treatment

of the victim; that a provision of the Swiss Penal Code should be

interpreted differently; and that all costs had been imposed on him.

In the Commission's opinion, none of the issues to be decided by

the Cantonal Court required a renewed establishment of the facts, or

a renewed determination of which facts had been proved or were

applicable to the case. Insofar as the applicant complained that the

District Court had not addressed one of his submissions, the Commission

finds that this point merely concerned the legal assessment of

otherwise established facts.

Thus, the Second Appeal Chamber was only confronted with

questions of law, the plea of nullity not raising any serious issues

as to the facts which would have required a hearing.

Moreover, in view of the limited nature of the issues before the

Second Appeal Chamber, the absence of public pronouncement did not

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

pursued by this provision, namely ensuring scrutiny of the judiciary

by the public, having been achieved during the course of the

proceedings taken as a whole (see Eur. Court H.R., Axen judgment of

8 December 1983, Series A no. 72, p. 14, para. 32).

This part of the application is therefore manifestly ill-founded

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

Convention.

4. Under Article 6 para. 2 (Art. 6-2) of the Convention the

applicant complains that the Cantonal Court held that he had

incorrectly been acquitted by the District Court, although his

acquittal had already become final.

According to Article 6 para. 2 (Art. 6-2) of the Convention,

"everyone charged with a criminal offence shall be presumed innocent

until proved guilty according to law".

In the present case the Criminal Chamber of the Cantonal Court

merely found that the District Court had incorrectly pronounced both

an acquittal and a conviction, and that only the applicant's conviction

could be contested by an appeal. There is no indication here that the

Criminal Chamber treated the applicant as if he were guilty before it

rejected his plea of nullity.

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.

5. The applicant complains that there was no second instance court

deciding on his first instance conviction. He relies on Article 2 of

Protocol No. 7 (P7-2) to the Convention which states, insofar as

relevant:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law ..."

The Commission notes that the applicant had the possibility of

filing a plea of nullity against the decision of the March District

Court. It need nevertheless not examine whether or not this plea of

nullity amounted to a "review by a higher tribunal" within the meaning

of para. 1 of Article 2 of Protocol No. 7 (P7-2-1).

Thus, according to para. 2 (P7-2), the right to review is

subjected to "exceptions in regard to offences of a minor character,

as prescribed by law".

In the Commission's opinion, the offence of which the applicant

was convicted - assault with no lasting damage to body or health -

constitutes a "minor" offence as confirmed by the fine of 100 SFr.

Domestic law qualified the offence as a misdemeanour and thus also

regarded it as a minor one.

The Commission therefore considers that the exception to the

right to a review by a higher tribunal, pursuant to Article 2 para. 2

of Protocol No. 7 (P7-2-2), applies.

It follows that the remainder of the application is also

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.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

Menu

L.K. -D. v. SWITZERLAND

L.K. -D. v. SWITZERLAND

LEXI