Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18905/91

by R. B.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. 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 1 February 1991

by R. B. against Switzerland and registered on 4 October 1991 under

file No. 18905/91;

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

17 June 1993 and the observations in reply submitted by the

applicant on 28 August 1993;

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 1944, is an architect

residing at Gunzwil in Switzerland. Before the Commission he is

represented by Mr. E. Grueter, a lawyer practising in Lucerne.

I.

In 1977/78 various companies, which the three S. brothers had

founded in the Canton of Uri, merged with two building firms, A.B. AG

and C.B. AG, in the Canton of Lucerne whose board members were the

applicant and a certain A.A.

In February 1981 the Investigating Office (Verhöramt) of the

Canton of Uri instituted criminal investigations against certain

persons of the companies in the Canton of Uri. The investigations were

extended to all S. companies and the persons involved, eventually also

to the companies in the Canton of Lucerne.

Investigations concerning the applicant commenced on

17 February 1982. On 1 March 1982 he was arrested and remanded in

custody. He was questioned as to various offences, and released after

one day.

The Investigating Office prepared its final Report on 25 April

1985. On 21 March 1986 the Uri Public Prosecutor's Office

(Staatsanwaltschaft) indicted altogether 14 persons, among them the

applicant. The latter was charged with various economic offences

allegedly committed in the years 1976 and 1977.

On 12 March 1987 the Uri Regional Court (Landgericht) convicted

the applicant of repeatedly and continuously forging documents

(wiederholte Urkundenfälschung) and of continuously obtaining a false

registration (Erschleichung einer falschen Beurkundung). In one

instance, the applicant was acquitted of the offence of fraud and of

obtaining a false registration. In respect of the offence of giving

false information about commercial companies the proceedings were

terminated on account of prescription. The applicant was sentenced to

eighteen months' imprisonment, suspended on probation for three years.

The judgment of the Uri Regional Court was served on the

applicant on 24 July 1987.

II.

Both the applicant, on 18 August 1987, and the Public

Prosecutor's Office, on 3 September 1987, appealed against this

judgment.

In its judgment of 31 May, 15 June and 29 June 1988 the Court of

Appeal (Obergericht) of the Canton of Uri dismissed the applicant's

appeal and partly upheld the appeal of the Public Prosecutor's Office.

The Court found that the applicant was guilty of fraud, of repeatedly

and continuously forging documents, and of continuously obtaining a

false registration, and sentenced him to two years' imprisonment.

The decision of the Court of Appeal was served on 21 November

1988. III.

On 7 December 1988 the applicant filed with the Federal Court

(Bundesgericht) a public law appeal (staatsrechtliche Beschwerde),

complaining inter alia under Article 6 para. 1 of the Convention of the

length of the proceedings, and a plea of nullity (Nichtigkeitsbe-

schwerde).

On 29 March 1990 the Federal Court dismissed the applicant's

public law appeal. With regard to the length of the proceedings the

Court found:

"Even if it is assumed, in favour of the applicant, that the

period to be considered commenced with the first investigation

acts against the applicant, the period only commenced as from May

1981, as the Uri Investigating Office then began with the first

investigations in the -case ... The second instance judgment

was pronounced at the end of June 1988. In view of the

involvement of over 20 companies in the -case and the

concomitant volume of files, and of the altogether fourteen

indicted persons (the first instance judgment numbers 136 pages),

the length of proceedings lasting slightly more than seven years

cannot be regarded as disproportionate ... The applicant's

complaint is therefore unfounded."

"Selbst wenn zugunsten des Beschwerdeführers die ersten

Untersuchungshandlungen gegen ihn als fristauslösend angenommen

werden, läuft die Frist erst vom Mai 1981 an, weil das Verhöramt

Uri damals mit den ersten Ermittlungen in der -Affäre begann

... Das zweitinstanzliche Urteil erging Ende Juni 1988.

Angesichts der Verwicklung von über zwanzig Gesellschaften in die

-Affäre mit entsprechender Aktenfülle und der insgesamt

vierzehn Angeklagten (das erstinstanzliche Urteil umfasst 136

Seiten) kann eine etwas mehr als 7jährige Verfahrensdauer nicht

als unangemessen bezeichnet werden ... Die Rüge des

Beschwerdeführers erweist sich damit als unbegründet."

On 29 March 1990 the Federal Court partly upheld the applicant's

plea of nullity insofar as it concerned the applicant's sentence.

The Court recalled in respect of the applicant's public law

appeal that there had been no violation of Article 6 para. 1 of the

Convention on account of the length of the proceedings; it found that

it was thus unnecessary to examine whether the applicant's sentence

should be reduced on such grounds. On the other hand, the Federal

Court considered that the Court of Appeal, when determining the

sentence, had not observed that the offences had occurred relatively

long ago, and that the applicant's conduct had since been good. For

this reason it referred the case back to the Court of Appeal. The

remainder of the plea of nullity was dismissed.

Both judgments of the Federal Court were served on 19 May 1990.

IV.

Proceedings were resumed before the Court of Appeal of the Canton

of Uri which on 5 July 1990 sentenced the applicant to 21 months'

imprisonment. The judgment was served on 31 August 1990.

In its decision the Court of Appeal noted that the Federal Court,

in its decision of 29 March 1990, had found no breach of Article 6

para. 1 of the Convention in respect of the length of the proceedings.

The Court considered that in its first decision it had already taken

into account the length of the proceedings. However, following the

applicant's successful plea of nullity to the Federal Court, the Court

of Appeal found that it had insufficiently considered this ground of

reduction; moreover, two more years had elapsed since its first

judgment.

V.

Against this decision the applicant filed with the Federal Court

a plea of nullity on 20 September 1990, and a public law appeal on

27 September 1990. He complained inter alia under Article 6 para. 1

of the Convention of the length of the proceedings, submitting that the

previous court should have considered this when determining his

sentence.

In two decisions of 29 November 1990 the Federal Court dismissed

the applicant's plea of nullity and his appeal. The judgments were

served on 16 August 1991.

In respect of his complaint under Article 6 para. 1 of the

Convention the Court referred in its decision on the public law appeal

to its decision of 29 March 1990 and then continued:

"It suffices to refer here to those considerations. They are not

altered by the fact that again two further years have elapsed

while the case was referred back to the previous court. For the

rest, the applicant only raised this complaint to point out that

the Court of Appeal should have included in its reasons for the

judgment this further lapse of time as an additional ground to

reduce the sentence ... This is exactly what the Court of Appeal

did ... In this respect therefore the complaint no longer

stands."

"Es genügt hier, auf jene Erwägungen zu verweisen. Dass im

Rahmen des Rückweisungsverfahrens nun nochmals rund 2 Jahre

dazukamen, ändert daran nichts. Im übrigen erhob der

Beschwerdeführer diesen Einwand nur um darzutun, dass das

Obergericht diese zusätzlich verflossene Zeit als weiteren

Strafminderungsgrund in seine Urteilserwägungen hätte

miteinbeziehen müssen ... Gerade dies hat das Obergericht aber

getan ... Der Beschwerde ist deshalb in diesem Punkt der Boden

entzogen."

VI.

On 20 February 1992 the applicant filed a plea for pardon

(Begnadigungsgesuch) with the Council of State (Regierungsrat) of the

Canton of Uri, asking for a remission (Erlass) of his prison sentence

on the ground that more than 13 years had elapsed since he had

committed the offences for which he now had to serve a prison sentence.

On 8 April 1992 the Parliament (Landrat) of the Canton of Uri

partly upheld the applicant's plea and reduced the sentence by five

months to sixteen months' imprisonment. It took into account the

entire length of the proceedings as well as the fact that a further two

years had elapsed since the second judgment of the Court of Appeal, but

considered that a complete remission of sentence could not be granted,

inter alia as the offences which the applicant had committed were not

negligible (nicht leicht wiegen).

The applicant's public law appeal was declared inadmissible by

the Federal Court on 6 July 1992.

COMPLAINTS

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

of the length of the criminal proceedings. He observes that the Swiss

courts found no violation of Article 6 para. 1 of the Convention, and

that there was no reduction of sentence on these grounds.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 February 1991 and registered

on 4 October 1991.

On 31 March 1993 the Commission (First Chamber) decided to

communicate the application to the respondent Government and invite

them to submit written observations on the admissibility and merits in

respect of the complaint under Article 6 para. 1 of the Convention

relating to the length of the proceedings.

The Government's observations were submitted on 17 June 1993. The

applicant's observations in reply were submitted on 28 August 1993.

THE LAW

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

Convention of the length of the criminal proceedings.

2. The Government submit that the applicant is no longer a victim

of a violation of Article 6 para. 1 (Art. 6-1) of the Convention since

his sentence was twice reduced in view of the length of the

proceedings, i.e. by the Court of Appeal of the Canton of Uri on

29 March 1990, and by the Parliament of the Canton of Uri on

8 April 1992.

The applicant submits that his sentence was reduced only once,

namely by the Court of Appeal on 29 March 1990.

The Commission recalls the Convention organs' case-law according

to which an applicant's status as a "victim" within the meaning of

Article 25 (Art. 25) of the Convention may depend on compensation being

awarded to him on the basis of the facts about which he complains

before the Commission. However, in cases concerning complaints of

length of proceedings or detention the domestic authorities must have

expressly recognised the alleged infringement of the Convention and,

if necessary, provide substantial redress in relation thereto. Only

when these two conditions are satisfied does the subsidiary nature of

the protective mechanism of the Convention preclude examination of an

application (see Eur. Court H.R., Eckle judgment of 15 July 1982,

Series A no. 51, p. 32, paras. 69 et seq.; No. 10868/84, dec. 21.1.87,

Woukam Moudefo v. France, D.R. 51 p. 62; No. 10884/84, dec. 13.12.84,

H. v. Federal Republic of Germany, D.R. 41 p. 252).

In the present case the Court of Appeal of the Canton of Uri in

its judgment of 31 May, 15 June and 29 June 1988, sentenced the

applicant to 24 months' imprisonment. In its further decision of

5 July 1990 it reduced the sentence by three months to 21 months'

imprisonment. On 8 April 1992 the Parliament of the Canton of Uri

further reduced the sentence by five months to sixteen months'

imprisonment.

However, the Federal Court in its decision of 29 March 1990

expressly denied a violation of Article 6 para. 1 (Art. 6-1) of the

Convention in respect of the applicant's complaint of the length of the

proceedings. The Court of Appeal in its decision of 5 July 1990

reiterated this conclusion which was again confirmed by the Federal

Court in its further decision of 29 November 1990. The Parliament of

the Canton of Uri, while taking into account the length of the

proceedings and the lapse of two further years since the second

judgment of the Court of Appeal, also did not state that the length of

the proceedings amounted to a breach of Article 6 para. 1 (Art. 6-1)

of the Convention, or even that it had been excessive.

It follows that there is no express statement by any domestic

authority that there has been a violation of the Convention.

In these circumstances it is unnecessary to examine whether the

reduction from originally 24 months' to sixteen months' imprisonment

may be considered as a sufficiently substantial reduction (see mutatis

mutandis No. 10868/84, Woukam Moudefo v. France, loc. cit.).

The applicant can therefore still claim to be the victim within

the meaning of Article 25 (Art. 25) of the Convention of a breach of

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

3. The Government furthermore submit that the length of the

proceedings did not violate Article 6 para. 1 (Art. 6-1) of the

Convention. Thus, the proceedings commenced on 1 March 1982 when the

applicant was remanded in custody, and they ended on 16 August 1991

when the decisions of the Federal Court were served on the applicant.

The proceedings lasted altogether 9 years and five and a half months.

The Government further recall that the case was extremely

complex, involving 14 co-accused, 20 companies, and many millions of

Swiss Francs. As regards the period of investigation, the Government

point out that the applicant has not complained about any inactivity

on the part of the investigating authorities. In view of the

complexity of the case the Government have not given a detailed list

of the conduct of the investigating authorities, but would do so upon

the Commission's request. The final report of the investigating judge

counted over 300 pages, the indictment act 166 pages, the first

instance judgment 136 pages. Between 1987 and 1990 altogether seven

court decisions were taken. Finally, the Government point out that the

applicant contributed to the length of the proceedings by employing

various remedies.

The applicant submits that from the time when he committed the

offences on 11 August 1976 until the serving of the final decision of

the Federal Court on 16 August 1991, more than fifteen years elapsed.

In his view, it is inhuman and antisocial that he should thereafter

still have to serve the prison sentence. The Court of Appeal in its

decision of 31 May, 15 June and 29 June 1988 in fact raised the

sentence. On the whole, the investigations were too difficult for the

authorities.

The Commission finds that the complaint concerning the length of

the proceedings must be examined on its 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 by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

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R.B. v. SWITZERLAND

R.B. v. SWITZERLAND

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