Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17602/91

by Martin THOMANN

against Switzerland

The European Commission of Human Rights sitting in private on

5 September 1994, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 December 1990

by Martin THOMANN against Switzerland and registered on 7 January 1991

under file No. 17602/91;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 7 January 1994 and the observations in reply submitted

by the applicant on 8 March 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant, born in 1949, is a Swiss national and resident in

Zurich. He is a businessman by profession. Before the Commission he

is represented by Mr. P. Joset and Mr. N. Ruckstuhl, lawyers practising

in Binningen.

A. Particular circumstances of the case

On 13 December 1988 the Basel-Stadt Public Prosecutor's Office

(Staatsanwaltschaft) preferred an indictment (Anklageerhebung) against

the applicant on charges of professional fraud, simple bankruptcy

(leichtsinniger Konkurs), and violation of his obligation to keep books

(Unterlassung der Buchführung).

The Basel-Stadt Criminal Court (Strafdreiergericht) fixed the

period between 10 and 17 May 1989 as the date for the trial against the

applicant. The applicant could not be summoned for the trial on the

ground that he had given notice of departure from his last place of

residence without indicating his new place of residence. A warrant of

arrest was issued, which referred to the possibility that the trial

could, at any time, be conducted in the applicant's absence

(Kontumazialverhandlung).

Between 10 and 17 May 1989 the Criminal Court, sitting with the

Judges Metzener, Becht-Gutmann and Memminger, conducted the trial in

the applicant's absence.

On 16 May 1989 the applicant was arrested. He was brought before

the Criminal Court on 17 May 1989 for the pronouncement of the

judgment.

On 17 May 1989 the Criminal Court convicted the applicant of

fraud, simple bankruptcy and violation of his obligation to keep books,

and sentenced him to two and a half years' imprisonment.

Thereupon, the applicant requested a rehearing of his case

(Revision) under S. 267 para. 2 of the Basel-Stadt Code of Criminal

Procedure (Strafprozessordnung), which was granted immediately by the

three Judges mentioned above.

Subsequently, in normal trial proceedings, the Criminal Court

fixed 30 October 1989 as the date for the new trial, to be conducted

by the Judges Metzener, Becht-Gutmann and Memminger.

On 29 June 1989 the applicant challenged the Judges Metzener,

Becht-Gutmann and Memminger for bias, referring to their participation

in the trial proceedings leading to his conviction on 17 May 1989.

On 27 August 1989 the Basel-Stadt Criminal Court, sitting with

the said Judges, dismissed the applicant's motion of challenge.

On 5 October 1989 the Basel-Stadt Court of Appeal (Appellations-

gericht), upon the applicant's appeal (Beschwerde), quashed the

decision of 27 August 1989 and ordered the Criminal Court to decide

upon the applicant's motion of 29 June 1989 in the absence of the three

Judges concerned.

The trial fixed for 30 October 1989 was postponed.

On 25 October 1989 the Basel-Stadt Criminal Court, sitting with

the Judges Kunz, Stephenson and Stamm, dismissed the applicant's motion

of challenge.

On 14 November 1989 the Basel-Stadt Court of Appeal dismissed the

applicant's appeal against the decision of 25 October 1989. The Court

of Appeal considered in particular that the request under S. 267

para. 2 of the Basel-Stadt Code of Criminal Procedure was not an

ordinary remedy, but, under given circumstances, resulted in a reversal

of the conviction passed in the accused's absence (Kontumazurteil), the

conduct of a normal trial and passing of a new judgment (S. 267

para. 4). There was no legal rule of competence regarding the decision

on whether the objection was granted and regarding the new trial, but,

according to practice, the court in the composition which had conducted

the trial in the accused's absence was also competent for the

proceedings following a request for rehearing of the case. The Court

of Appeal observed that the new trial was supposed to amend the

proceedings conducted in the accused's absence and that the judges

conducting a trial in the accused's absence were aware of the

provisional nature of their judgment and the possibility of a

repetition of the trial in normal proceedings. As the trial was

completely repeated, its outcome was open. There were no objective

reasons to doubt the impartiality of the judges who had first

participated in the trial in the accused's absence and then again

participated in the trial in his presence.

On 2 May 1990 the Federal Court (Bundesgericht) dismissed the

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

The Federal Court, referring to its case-law on the question of

impartiality of judges, considered that the participation of judges,

who had passed a conviction in the accused's absence (Kontumazurteil),

in the decision on the request of the person concerned for a rehearing

of his case and the subsequent new trial against him, could not be

challenged if the outcome of the normal trial appeared to be open and

there was no appearance of predetermination.

The Federal Court found that the main difference between a normal

trial and a trial in the accused's absence was that the accused could

not make use of his rights of defence under SS. 181, 185 and 186 of the

Code of Criminal Procedure, and could not be questioned by the court.

Thus, in proceedings conducted in the accused's absence, the basis for

the court's judgment was incomplete so far as those procedural elements

were concerned which presupposed the accused's presence. The accused's

statements at the trial and the personal impression made upon the court

are of great importance for the finding of the truth and the fixing of

the sentence. In order to make up for the disadvantages possibly

suffered by the accused due to his absence, the different Swiss Codes

of Criminal Procedure providing for a conviction in the accused's

absence also entitled the convicted person to request a rehearing of

his case in normal proceedings. The purpose of the request for a

rehearing under S. 267 of the Basel-Stadt Code of Criminal Procedure

was not to review the judgment passed in the accused's absence, but to

restore the case to the stage of the main proceedings in order to be

freshly examined at a new trial in the accused's presence.

The Federal Court considered that, taking into account the

importance of the accused's statements and the impression he makes at

the trial, it appeared quite possible that the judges, when reexamining

the case in normal trial proceedings, could come to a different result

than in the proceedings in the accused's absence. Thus the result of

the normal trial proceedings appeared open although the judges had

already participated in the proceedings in the accused's absence, and

there was objectively no indication of predetermination.

The Federal Court also observed that the present case could not

be compared to the case where a judge initially acts as investigating

judge, as judge deciding on the committal for trial or as judge issuing

a penalty order (Strafmandat), and then subsequently as trial judge.

If, in cases of a conviction in the applicant's absence the further

participation of the judges concerned in the review proceedings and the

possible new trial amounted to a breach of the Constitution and of

Article 6 para. 1 of the Convention, there would be a risk of abuse.

In this respect, the Federal Court noted that, in those Swiss Cantons

where the Code of Criminal Procedure did not subject the request for

a rehearing to any conditions, the accused could avoid judges whom he

disliked by not appearing in court. Moreover, new judges would have

to make themselves acquainted with the files, and thereby the workload

of the courts would be further increased and criminal proceedings be

delayed. The judgment was sent to the applicant on 6 June 1990.

The new trial against the applicant was held before the

Basel-Stadt Criminal Court, sitting with Judges Metzener, Becht-Gutmann

and Memminger, between 26 September and 3 October 1990.

On 3 October 1990 the Basel-Stadt Criminal Court convicted the

applicant again of fraud, simple bankruptcy and breach of his

obligation to keep books and sentenced him to two years and three

months' imprisonment.

B. Relevant domestic law and practice

a. Proceedings in the presence of the accused

In the course of a trial conducted in the presence of the

accused, the President of the court (Gerichtspräsident) questions the

accused about his personal situation. Subsequently, the accused has

the opportunity to make a brief statement on the indictment. The

President then questions him in detail on the charges against him

(S. 178 of the Basel-Stadt Code of Criminal Procedure -

Strafprozessordnung).

The accused can be confronted with witnesses (S. 179).

S. 181 provides that the accused can request the further taking

of evidence.

Under SS. 185 and 186, he is entitled to put forward his defence

following the statements of the Public Prosecutor and, possibly, the

victim of the offence, and he has the last word following the Public

Prosecutor's reply.

b. Proceedings in the absence of the accused

SS. 260 to 267 of the Basel-Stadt Code of Criminal Procedure

regulate the conduct of criminal proceedings against suspect persons

and accused who are absent.

According to S. 260 preliminary investigations against a suspect

who is absent are to be conducted, so far as possible and feasible, as

completely as if he were present; in particular the relevant evidence

is to be taken.

S. 261 para. 1 provides that the indictment may only be preferred

(öffentliche Anklage erheben) against an absentee, who has been heard

on the charges against him or who has himself rendered such hearing

impossible, and if a reliable result of the trial appears secured

despite the accused's absence.

Pursuant to S. 262 para. 1, the President of the criminal court

(Strafgerichtspräsident) orders that the trial be conducted in the

accused's absence (Kontumazialverhandlung), if an indictment has been

preferred against an absentee or if the accused absents himself without

sufficient excuse after having been committed for trial. This order

is included in the publications relating to search and investigation

into the person's whereabouts.

S. 263 para. 1 provides that, if the accused cannot be brought

before the court, the relevant parts of the investigation files are

brought to the court's notice in that they are circulated or read out.

Judgment is passed on the basis of the files after the parties present

have been heard. Under S. 263 para. 2, the President may, ex officio,

or upon request of a party, order the hearing of witnesses or experts.

The court may also order the further taking of evidence.

S. 264 relates to the judgment passed in the accused's absence

(Kontumazurteil). The proceedings are provisionally suspended, if the

evidence does not suffice to convict the accused (S. 264 para. 1). In

case of the accused's conviction, the court decides upon the measures

to be taken upon his apprehension. The judgment should, if possible,

immediately be executed (S. 264 para. 2).

S. 266 concerns the remedies open to the parties present at the

trial.

S. 267 regulates the accused's remedy against his conviction.

Pursuant to S. 267 para. 1 the accused convicted in his absence is

notified of his conviction as soon as he is brought before or

surrenders to the court; the notification is done in the presence of

the Public Prosecutor's Office, if the conviction followed an

indictment (öffentliche Klage). According to S. 267 para. 2, the

convicted person is entitled to request a rehearing of his case

(Revision des Verfahrens) within ten days after notification; the

Public Prosecutor's Office has the same right in case of judgments

following an indictment. The request of a convicted person who was

summoned for the trial may only be granted if he shows that he did not

receive the summons or was, through no fault of his, hindered from

appearing in court (S. 267 para. 3). If the request for rehearing is

granted, normal trial proceedings are instituted against the convicted

person and a new judgment is passed (S. 267 para. 4). In the absence

of a request for rehearing or dismissal of such a request, the judgment

passed in the accused's absence becomes final (S. 267 para. 5).

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 2 of the

Convention that, in the proceedings resulting in his conviction by the

Basel-Stadt Criminal Court of 3 October 1990, he did not have a hearing

by an impartial court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 December 1990 and registered

on 7 January 1991.

On 13 October 1993 the Commission decided to communicate the

application to the respondent Government for observations on

admissibility and merits.

On 7 January 1994, the Government submitted their observations.

The observations in reply by the applicant were submitted on

8 March 1994.

On 17 May 1994, the Commission decided not to grant legal aid to

the applicant.

THE LAW

The applicant complains under Article 6 paras. 1 and 2

(Art. 6-1, 6-2) of the Convention that, in the proceedings resulting

in his conviction by the Basel-Stadt Criminal Court of 3 October 1990,

he did not have a hearing by an impartial court.

Article 6 paras. 1 and 2 (Art. 6-1, 6-2), as far as relevant,

provides as follows:

1. "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 ...;

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The respondent Government, referring to the case-law of the

Convention organs, compare the present case with the Ringeisen case in

particular (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series

A no. 13). They submit that the Basel-Stadt Criminal Court, following

the applicant's request for a rehearing of his case, was merely called

upon to conduct the hearing in the presence of the applicant in order

fully to secure him the rights of the defence. The Government maintain

that the criminal court, when passing a conviction in the accused's

absence, has a view of the case different from the view it has when

conviction is passed in his presence. In this respect, they refer to

the record of the applicant's trial before the Basel-Stadt Criminal

Court between 26 September and 3 October 1990. They consider that

there was nothing to indicate that the judges, who had first passed the

applicant's conviction in his absence, had lost their impartiality when

they decided again on the charges against him. Rather, in such cases,

the trial starts again from the very beginning and the accused's

presence at the hearing can show new aspects.

The applicant considers that the outcome of the proceedings upon

the rehearing in the accused's presence should be fully open. However,

judges, who had passed a conviction in the accused's absence, but in

full knowledge of all material, could not be regarded as impartial when

sitting on the rehearing of the same case. He submits that the main

question in the criminal proceedings against him was the legal

qualification of the facts which he had admitted, a question already

determined by the judges at the trial in his absence.

The Commission finds that the applicant's complaint under

Article 6 (Art. 6) of the Convention raises difficult questions of fact

and of law which require an examination of the merits. The application

is therefore not manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention. No other ground for

declaring it inadmissible has been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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THOMANN v. SWITZERLAND

THOMANN v. SWITZERLAND

LEXI