Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20551/92

by P. W.

against Switzerland

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The European Commission of Human Rights (Second Chamber) sitting

in private on 29 June 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 31 July 1992 by

P. W. against Switzerland and registered on 27 August 1992 under file

No. 20551/92;

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 French citizen born in 1950, is a carpenter,

currently detained at Grasse prison in France. Before the Commission

he is represented by Mr. Jean Lob, a lawyer practising in Lausanne.

The applicant was arrested on 29 October 1989 in Leysin on

suspicion of having killed his wife. In the course of the criminal

investigations instituted against him, the Aigle District investigating

judge ordered the preparation of a medical expert opinion as to the

applicant's psychiatric state at the time of the crime, with a view to

determining the degree of responsibility for the act. A list of

questions to be answered in the medical examination was submitted to

two medical experts. The list included six questions, added to the

list upon the applicant's request, on the issues whether the applicant

was subject to violent emotion at the time of the crime; whether this

emotion was justified by the circumstances; whether the act committed

depended on a particular psychological or emotional context; whether

alcohol played a part in the crime; and whether the behaviour of the

applicant after the crime could be considered as attempted suicide.

On 15 January 1990 the Cantonal Court of the Canton of Vaud, upon

the Public Prosecutor's request, struck these six questions off the

list as they concerned legal, not medical, issues. Thus, it fell to

the court and not to the medical experts to answer these questions.

On 4 June 1990 an expert medical opinion was submitted to the

Aigle District investigating judge who then ordered the investigation

to proceed. On 25 October 1990 this order was annulled by the Cantonal

Court of the Canton of Vaud on the grounds that the report contained

answers to the questions which should have been struck off the list by

virtue of the decision of 15 January 1990. As a result, the Court

appointed a new medical expert in order to prepare a new opinion.

On 23 November 1990 the Federal Court declared inadmissible the

applicant's public law appeal against the order of 25 October 1990 on

the ground that the decision at issue was not a final one.

On 9 November 1990 the applicant applied to be released, citing

parts of the rejected expert medical opinion. The investigating judge

refused the request. He explained that parts of the applicant's letter

referring to the report would be deleted so as not to appear in the

file and that the reason for appointing another medical expert was that

he could prepare his opinion without delay. The applicant's lawyer

then requested the investigating judge to include the first expert

medical opinion in the file and to assign one of its authors, doctor

D., as a witness. This was refused on 4 February 1991.

On 28 March 1991 the applicant requested the Aigle District Court

to hear the same medical expert, doctor D., as a witness. This was

refused by the Court on 3 April 1991 without further reasons.

On 5 April 1991 the applicant again requested the Court to hear

the medical expert, doctor D., as a witness and to include the first

expert medical opinion in the file. This was refused by the Court on

8 April 1991, again without reasons.

The trial was held on 26 June 1991 before the Aigle District

Court. The Court refused in particular to grant the applicant's

request to hear the medical expert, doctor D., as a witness and to

include the first expert medical opinion into the file. The Court

upheld the conclusions of the Cantonal Court of the Canton of Vaud that

the expert opinion deleted from the file contained considerations which

in view of their legal nature were exclusively for the court to make.

The reason for the refusal to hear as a witness the expert, doctor D.,

who had prepared the first expert medical opinion, was that his

testimony would result in circumvention of a decision not to admit his

expert medical opinion as evidence. On the same day the Cantonal Court

convicted the applicant of homicide and sentenced him to 12 years'

imprisonment.

The applicant filed a plea of nullity and an appeal to the Court

of Cassation of the Canton of Vaud. On 19 September 1991 the Court of

Cassation upheld the contested judgment. The Court also found it

correct that the expert medical opinion was limited to questions

requiring specialised knowledge, while the six questions at issue were

not of such a nature.

On 17 March 1993 the Federal Court dismissed the applicant's

public law appeal. The Court considered in particular that the right

to a fair trial included the right to propose and produce evidence,

provided it was pertinent. It did not allow the accused to request the

preparation of an expert opinion in order to explain questions of fact,

but only those requiring specialised knowledge. Thus, limiting the

expert medical opinion to such issues was not contrary to the

guarantees of a fair trial. The Court further found that the applicant

had not been prevented from producing evidence on the same

circumstances by other means such as witnesses, documents or a

privately ordered expert opinion.

COMPLAINTS

The applicant complains under Article 6 of the Convention of

unfairness of the proceedings and of a breach of equality of arms in

that he was not allowed to present the medical expert as a witness who

would give evidence in his favour under the same conditions as the

witnesses against him. He also complains that the courts decided not

to include in the file the medical expert opinion which mentioned

mitigating circumstances in respect of his criminal responsibility.

He further complains that all passages in the documents in the file

referring to this opinion and containing passages thereof were deleted.

THE LAW

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

Convention that he was not allowed to present the medical expert as a

witness who could give evidence in his favour, and that the courts

decided not to include in the file the medical expert opinion and other

documents which mentioned mitigating circumstances in respect of his

criminal responsibility.

The Commission recalls that the admissibility of evidence is

primarily a matter for regulation by national law and, as a rule, it

is for the national courts to assess the evidence before them. The

Commission's task is to ascertain whether the proceedings considered

as a whole, including the way in which evidence was taken, were fair

(see Eur. Court H. R., Asch judgment of 26 April 1991, Series A,

no. 203, p. 10, para. 26).

In the present case the Commission notes that on 25 October 1990

the Cantonal Court of the Canton of Vaud ordered the preparation of an

expert medical opinion. However, it decided not to include in the list

of questions addressed to the expert questions concerning mitigating

circumstances in respect of the applicant's criminal responsibility as

they were of a legal, not factual, nature. In their subsequent

decisions of 3 and 8 April 1991 the Aigle District Court refused the

applicant's further request to have a medical expert opinion prepared

on these questions or even to include these issues in the file.

In the Commission's opinion the fact that the courts decided the

issue of the applicant's criminal responsibility without expert advice

did not render the proceedings unfair.

Moreover, there is no indication that the applicant who was

represented by a lawyer could not express before the courts his own

views, or put forward his own evidence, as regards his criminal

responsibility.

It follows that the application is 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 Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

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P.W. v. SWITZERLAND

P.W. v. SWITZERLAND

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