Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17601/91

by Bernhard SENN

against Switzerland

The European Commission of Human Rights (First Chamber)

sitting in private on 7 April 1994, the following members being

present:

MM. A. WEITZEL, President

S. TRECHSEL

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, 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 20 November

1990 by Bernhard Senn against Switzerland and registered on 7

January 1991 under file No. 17601/91;

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 1948, is a real

property agent. Before the Commission he is represented by Mr. R.

Bühler, a lawyer practising in Lucerne.

In the 1960s and 1970s the applicant and his brothers founded

various companies in the Canton of Uri dealing mainly with real

property. In 1977 and 1978 these companies merged with two

building firms and became the C. AG with its seat in the Canton of

Lucerne. Further companies were founded of which many went

bankrupt after 1981.

Proceedings leading to the Federal Court's decisions of 29 March

1990 On 18 May 1981 the Investigation Office (Verhöramt) of the

Canton of Uri instituted criminal investigations against the

applicant and his brother on suspicion of their having committed

various economic offences. In December 1981 the Investigation

Office appointed the R. AG, a consultancy firm, to prepare an

expert opinion as to whether the various files disclosed a conduct

which appeared punishable. At the end of December 1983 the

applicant appointed a lawyer. As from 27 April 1984 onwards the

applicant was permitted to consult part of the case-file.

On 21 March 1986 the Uri Public Prosecutor's Office

(Staatsan-waltschaft) indicted the applicant and other persons of

various economic offences. On 17 June 1986 the Uri Regional Court

(Landgericht) held a preparatory meeting at which it decided on

the applicant's requests for the taking of evidence.

On 17 November 1986 the trial began before the Uri Regional

Court. Various hearings were held, inter alia on 20 January 1987.

On 12 March 1987 the Court pronounced its judgment in which it

convicted the applicant inter alia of fraud, false declaration of

companies, disloyal management, negligent bankruptcy, the failure

to keep accounts and the forgery of documents. The applicant was

sentenced to a prison sentence of five years and 10 months and to

a fine of 4,000 SFr. A period of detention on remand of six days

was deducted from the sentence.

In its judgment the Court listed the charges raised by the

Public Prosecutor's Office, the requests of the defence, and the

final statements of the accused. The Court dismissed the

applicant's request to have incriminating witnesses examined, as

he had failed to specify the nature and relevance of the

questions; and as he had already had sufficient opportunity to

examine the case-file and to submit such requests during the

investigations.

The applicant filed an appeal (Berufung) against this

judgment with the Court of Appeal (Obergericht) of the Canton of

Uri. In its judgment dated 31 May, 15 and 29 June 1988 the Court

upheld the conviction, while sentencing the applicant to six years

and 10 months' imprisonment and to a fine of 6,000 SFr. The Court

dismissed inter alia the applicant's request to have altogether 24

witnesses examined and to have further evidence taken as the facts

had been sufficiently established. The Court was composed of

judge A., the President, judge I., the Vice-president, judge M.,

and other judges.

The applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) and a public law appeal (staatsrechtliche

Beschwerde) on which the Federal Court (Bundesgericht) pronounced

itself in two decisions dated 29 March 1990 and served on the

applicant on 19 May 1990.

In its decision on the public law appeal the Federal Court

first dealt with the applicant's complaints about the proceedings

before the Regional Court and Court of Appeal. Insofar as he

complained that he had not been informed of his right to have a

lawyer, and indeed had not been granted an officially appointed

lawyer, the Court found inter alia that the applicant had

previously had many contacts with lawyers and should have known

that it was possible also in criminal proceedings to consult a

lawyer. To the extent that the judgment of the Court of Appeal

had dealt with these complaints summarily, the Court found that it

sufficed if it now itself gave sufficient reasons.

Insofar as the applicant complained that he had only been

able to consult part of the case-file and this only on 27 April

1984, the Court found that it sufficed if the applicant could

consult the entire case-file once the investigations had been

terminated; the applicant had not claimed that after termination

of the investigations on 25 April 1984 he was refused

consultation.

The Court then dealt with the applicant's complaint that in

the proceedings the R. AG, a consultancy firm, was employed as

expert although the firm also acted as administrator (Sachwalter)

in the bankruptcy proceedings of several of the applicant's

companies; thus it would have biased views on the matter. The

Court found that the firm had not acted as an expert who assisted

the judge in preparing his judgment in matters in which the judge

had insufficient specialised knowledge. Rather, the firm had only

been invited to submit additional facts and indications which,

rather than assisting the judge, had first to be assessed by the

investigating authorities.

Next, the Court dealt with the applicant's complaint that

judge A., the President of the Court of Appeal, was biased as he

had advised the applicant as a lawyer and had acted as his notary

between 1972 and 1976; and that he had presided over the Uri

municipal water corporation which in 1976, as a neighbour, had

introduced a property action against the applicant. The Court

noted that judge A.'s activities as a lawyer and notary had

occurred long ago; that the applicant had admitted the claim

introduced against him; and that the applicant had not shown any

concrete grounds for doubting the judge's impartiality.

Insofar as the applicant complained that judge I., the vice-

president of the Court of Appeal, had been biased as in 1975 he

had written a critical letter to a newspaper editor about the

water situation in the Canton of Uri, the Court noted that the

applicant had as a result instituted defamation proceedings

against the judge, though he had later withdrawn his action;

moreover, the applicant had not shown in what respect judge I.'s

letter to the newspaper now called in question his impartiality.

Insofar as the applicant complained that judge K. had slept

during the trial before the Regional Court, the Federal Court

referred to a newspaper article according to which it had not been

clear at the trial "whether the closed eyes of a judge implied

that he was thinking particularly intensively, or having a short

dream about credits coincidentally spouting millions of Francs"

("ob die geschlossenen Augen eines Richters von besonders

intensivem Nachdenken oder von einem kurzen Traum über zufällig

sprudelnde Millionenkredite zeugen"). The Court found that the

mere fact that the judge closed his eyes for a few moments did not

imply that he slept.

The applicant's complaint that the composition of judges of

the Uri Regional Court constantly changed was declared

inadmissible by the Federal Court as the applicant had not

complied with the requirement of the exhaustion of cantonal

remedies.

Insofar as the applicant complained about the insufficient

assessment of evidence and that he had not been able to put

questions to witnesses, the Court found that the applicant had not

contested that, as required by the Constitution, he been granted

this opportunity at least once during the hearing. Moreover, the

Court noted that the Court of Appeal had regarded the applicant's

requests for the taking of evidence as irrelevant to the

established facts.

The Federal Court then dealt extensively with the grounds

leading to the applicant's conviction and in respect of most

complaints dismissed the public law appeal.

It upheld the public law appeal in respect of two complaints.

First, insofar as the applicant complained that he had been

convicted in respect of the forgery of documents, the Court found

that no such charge had been raised in the bill of indictment.

Second, in respect of another set of facts the applicant

complained that he had been acquitted by the Uri Regional Court of

the offence of obtaining a false registration, and at the trial

before the Uri Regional Court the Public Prosecutor had not

requested the applicant's conviction in this respect; the Court of

Appeal had nevertheless convicted him thereof.

In respect of these two complaints the Federal Court quashed

the judgment of the Uri Regional Court of 31 May, 15 and 29 June

1988 and referred the case back for renewed decision. The Court

further found that the applicant should be reimbursed for costs to

a reduced extent, as only two of many complaints had been

successful. The Court found that it was justified to compensate

this amount with other court costs to be imposed on the applicant

and, therefore, neither reimbursed the applicant for his costs,

nor imposed court costs on him.

Also on 29 March 1990 the Federal Court struck the

applicant's plea of nullity off its list as being without object

(gegenstandslos).

Proceedings leading to the Federal Court's decisions of 3 July

1991 Proceedings were resumed before the Uri Court of Appeal. The

applicant requested the taking of further evidence and the

questioning of those witnesses the examination of which he had

already requested in the first set of proceedings.

In its judgment dated 10 and 11 October 1990 the Court of

Appeal largely confirmed its previous judgment of 31 May, 15 and

29 June 1988. However, it terminated the proceedings in respect

of the charge of giving false information on commercial companies

on account of prescription (Verjährung) and acquitted the

applicant of two charges of obtaining a false registration and of

one charge of forgery of documents. He was sentenced to

imprisonment of five years and six months and a fine of 4,000 SFr.

The Court found that the Federal Court had already dealt with many

of the applicant's complaints about the unfairness of the

proceedings. The Court of Appeal admitted some documents

submitted as evidence, but regarded as irrelevant further

witnesses whom the applicant wished to be examined. The Court was

composed by judge A., the President, judge I., the Vice-president,

judge M. and other judges.

The applicant filed a public law appeal and a plea of

nullity, which were partly upheld by the Federal Court on 3 July

1991. The Court dismissed the applicant's complaints about the

composition of the Uri Regional Court in the first set of

proceedings. It noted that two substitute judges who had not been

present at all the trial hearings had not participated in the

preparation of the judgment. Two other judges involved in the

preparation of the judgment had not been present on 17 June 1986,

though at that session only preliminary questions had been

discussed and a request filed by the applicant had indeed been

upheld. At the hearing of 12 March 1987, with one judge missing,

the judgment had been pronounced. Finally, insofar as a further

judge had not participated at the Regional Court's session of 20

January 1987, the Federal Court declared this complaint

inadmissible as being lodged out of time.

The Federal Court upheld the public law appeal to the extent

that the Court of Appeal in its judgment of 10 and 11 October 1990

had terminated the proceedings or acquitted the applicant in

respect of certain charges; it had nevertheless not reimbursed the

applicant's costs arising out of the second set of proceedings,

although the latter had become necessary after the Federal Court

partly quashed the Court of Appeal's judgment of 31 May, 15 and 29

June 1988.

In its other decision of 3 July 1991 the Federal Court upheld

the applicant's plea of nullity to the extent that the judgment of

the Court of Appeal contained insufficient motivation as to his

conviction in respect of charges of forgery and false

registration.

Proceedings leading to the Federal Court's decisions of 16

December 1991

In the proceedings resumed before the Uri Court of Appeal the

applicant challenged judge M. The applicant complained in

particular that judge M. had participated in the previous

proceedings before the Court of Appeal where that Court had

dismissed the applicant's request to have certain witnesses heard;

the Court had explained that the statements of these witnesses

could not change its opinion as to the applicant's guilt.

In its judgment of 19 September 1991 the Court of Appeal

mainly confirmed its previous judgments; it found the applicant

guilty of certain charges and acquitted him of others. The

applicant was sentenced to imprisonment of three years and six

months and to a fine of 4,000 SFr. The Court further decided that

the applicant had to pay three quarters of the court costs imposed

by the Regional Court, i.e. 65,741 SFr, and the court costs for

the first set of the proceedings before the Court of Appeal

amounting to 4,570 SFr. The Court of Appeal further dismissed the

applicant's challenge of judge M.; it also dismissed his further

requests for the taking of evidence as they were irrelevant or the

facts were known.

The applicant's public law appeal and plea of nullity against

this decision were dismissed by the Federal Court in two decisions

dated 16 December 1991. It dismissed the applicant's challenge of

judge M. of the Uri Court of Appeal, referring in particular to

that Court's conclusions that in the first set of proceedings M.

had refused to consider certain documents about the execution of

debts (Betreibungs- und Konkursakten) as being irrelevant; that in

the second set of proceedings the Court of Appeal had in fact

considered mitigating grounds; and that the applicant himself

stated that he had no concrete grounds to doubt the impartiality

of judge M.

COMPLAINTS

Proceedings leading to the Federal Court's decisions of 29 March

1990 Under Article 6 para. 1 of the Convention the applicant

complains that the President and Vice-President of the Uri Court

of Appeal had "disregarded the grounds for abstaining from

participation" ("die Ausstandsgründe missachtet"); the expert of

the R. Consultancy Company and their employees had also

disregarded the principles of abstention.

Under Article 6 para. 1 of the Convention the applicant

complains that before the Regional Court the judges constantly

changed. Judges G. and E. who participated in the judgment did

not participate at the trial hearing of 17 June 1986; judge G.

also did not participate at the hearing of 20 January 1987 where

a substitute took part.

The applicant further complains under Article 6 para. 1 of

the Convention that judge K. of the Uri Regional Court slept

during the entire hearing (während der gesamten

Landgerichtsverhandlung).

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

Convention of the insufficient reasoning given in the judgments of

the Uri Regional Court and Court of Appeal.

Under Article 6 paras. 1 and 2 of the Convention the

applicant complains that the Federal Court quashed the judgment of

the Regional Court of 31 May, 15 and 25 June 1988, yet he received

no compensation for court costs.

Under Article 6 paras. 1 and 3 (b) the applicant complains

that he and his lawyer could only consult part of the case-file,

and this only on 27 April 1984, i.e. three years after the

investigations commenced.

Under Article 6 paras. 1 and 3 (c) the applicant complains

that he should have been given an officially appointed lawyer, yet

he was not even informed of the possibility to have a lawyer.

While the criminal investigations commenced on 18 May 1981, the

accused himself obtained a lawyer only in December 1983.

Under Article 6 paras. 1 and 3 (d) of the Convention the

applicant complains that he could not question incriminating

witnesses or have exonerating witnesses questioned. He was not

informed in advance of the questioning of witnesses. There was no

possibility to put supplementary questions. The applicant could

not put forward evidence and have evidence taken.

Proceedings leading to the Federal Court's decisions of 3 July

1991 The applicant reiterates his complaints previously made under

Article 6 of the Convention. He also complains under Article 6

para. 1 of the Convention that the Federal Court dismissed his

public law appeal insofar as it concerned the composition of the

Uri Regional Court.

Under Article 6 paras. 1 and 2 of the Convention the

applicant complains that, although the Federal Court again partly

upheld his public law appeal, he was not granted compensation.

Proceedings leading to the Federal Court's decisions of 16

December 1991

The applicant reiterates the complaints previously raised

under Article 6 para. 1 of the Convention. He also complains

under Article 6 para. 1 of the Convention that "in respect of

Court of Appeal judge M. the ground of abstention from the

proceedings was not considered" ("indem bezüglich Oberrichter M.

der gegebene Ausstandsgrund missachtet wurde").

Under Article 6 paras. 1 and 2 of the Convention the

applicant complains that he was awarded compensation for the court

costs amounting to 5,000 SFr, although he had spent 70 hours

preparing the second set, and 35 hours for the third set, of the

proceedings.

THE LAW

1. The applicant raises various complaints under Article 6

(Art. 6) of the Convention and its various subparagraphs. Article

6(Art. 6), insofar as relevant, reads 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.

3. Everyone charged with a criminal offence has the

following minimum rights: ...

(b) to have adequate time and facilities for the

preparation of his defence;

(c) to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient

means to pay for legal assistance, to be given it free when

the interests of justice so require;

(d) to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him".

The guarantees contained in para. 3 of Article 6 (Art. 6-3)

are specific aspects of the general concept of a fair trial set

forth in para. 1 (Art. 6-1) of the same Article, and the

Commission will examine the applicant's complaints under the

general rule of para. 1 (Art. 6-1) (see Eur. Court H.R., Bönisch

judgment of 6 May 1985, Series A no. 92, p. 14 et seq., para. 29;

No. 12391/86, Dec. 13.4.89, D.R. 60, p. 182).

Furthermore, the question whether a trial is in conformity

with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention must be considered on the basis of an examination of

the proceedings as a whole (see No. 11058/84, Dec. 13.5.86, D.R.

47, p. 230). The Commission has accordingly looked at the

applicant's trial as a whole.

2. a) The applicant submits that before the Uri Regional Court

the judges constantly changed. However, the Commission notes the

Federal Court's decision of 3 July 1991, not contradicted by the

applicant, that two judges who had not been present at all

hearings before the Regional Court were substitute judges not

participating in the preparation of the judgment; that a further

hearing where two judges had not participated only concerned

preliminary issues; and that the final hearing, where one judge

had not been present, only concerned the pronouncement of

judgment. In respect of a further hearing where one judge had

been absent the Federal Court declared the applicant's complaint

inadmissible as being out of time.

The applicant complains that judge K. slept during the entire

trial before the Regional Court. The Commission notes the Federal

Court's decision of 29 March 1990, referring to a newspaper

article on the trial, according to which the mere fact that the

judge closed his eyes for a few moments during the trial did not

show that he slept.

The applicant complains that the consultancy firm R. AG which

acted as administrator in the bankruptcy proceedings of various of

the applicant's companies gave an expert opinion before the

Regional Court. However, the Commission notes the distinction

made by the Federal Court in its decision of 29 March 1990

according to which this company was only called upon to submit

additional facts which had first to be assessed by the

investigating authorities.

The applicant complains of the bias of judge A., the

President, and of judge I., the Vice-President of the Uri Court of

Appeal. The Commission notes that A. acted as his lawyer and

notary and also presided over a water corporation which introduced

a property action against the applicant; I. had written a letter

to a newspaper about the water situation in Uri. However, the

Federal Court found in its decision of 29 March 1990 that A.'s

activities as a lawyer and notary had occurred long ago, that the

applicant had admitted the claim, and that he had not

substantiated his complaint in respect of I.'s letter to a

newspaper. In the view thereof and lacking further submissions on

the applicant's part the Commission finds no indication to call in

question the impartiality of judges A. and I.

The applicant complains that judge M. was biased in the third

set of the proceedings as he had already participated in the first

and second sets. The Commission notes the Federal Court's decision

of 22 November 1991 that while judge M. and other judges had in

the first set of proceedings regarded certain documents as being

irrelevant as evidence, in the second set the Court of Appeal even

accepted mitigating grounds in respect of the applicant's

punishment; and that the applicant mentioned no other grounds

calling in question the impartiality of judge M. In the

Commission's opinion the applicant has not sufficiently

established doubts warranting the conclusion that M. had a

preconceived opinion as to his guilt.

b) The applicant complains of the insufficient reasoning in the

judgments of the Uri Regional Court and of the Uri Court of

Appeal. However, even assuming that an issue could arise under

Article 6

(Art. 6) of the Convention, the applicant has not substantiated

this complaint. In its decision of 29 March 1990 the Federal

Court gave its own substantial reasons in respect of the

applicant's complaints, and the applicant does not claim before

the Commission that these reasons were insufficient.

c) The applicant complains that he could only consult part of

the case-file, and only three years after the investigations

commenced. However, he has not shown in what respect the refusal

to consult the case-file at the early stage of the investigations

hindered his right to an effective defence. The Commission is

furthermore satisfied that, as pointed out by the Federal Court in

its decision of 29 March 1990, once the final report of the Uri

Investigation Office was prepared the applicant had the right to

consult the full case-file.

d) The applicant complains that he was not given an officially

appointed lawyer; that he was not even informed of the possibility

to have a lawyer; and that he only obtained a lawyer in December

1983. However, the Commission notes that during the

investigations the applicant was remanded in custody for only six

days. Thus, he was at any time free to consult a lawyer of his

own choosing, or to file a request to obtain an officially

appointed lawyer.

e) The applicant complains that he could not question

incriminating witnesses or have exonerating witnesses questioned;

that neither he nor his lawyer were informed of the questioning of

witnesses; and that he could not put forward evidence or have

evidence taken.

As a rule it is for the national courts to assess the

evidence before them. The Convention organs' 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 applicant has not shown that the domestic

courts arbitrarily decided that certain evidence was irrelevant to

the facts, and he has not mentioned any hearings of witnesses to

which he was not invited. The Commission further notes the Federal

Court's decision of 29 March 1990, not contradicted by the

applicant, that he had the right at least once during the

proceedings to put questions to witnesses.

f) The applicant complains that the Federal Court in its

decision of 29 March 1990 quashed the judgment of the Regional

Court of 31 May, 15 and 25 June 1988, yet he received no

compensation for court costs. He also received no compensation

when on 3 July 1991 the Federal Court again partly upheld his

public law appeal. On 22 November 1991 the Federal Court only

awarded 5000 SFr as compensation, although he spent 105 hours

preparing the second and third set of the proceedings. However,

Article 6 (Art. 6) of the Convention does not as such guarantee a

right to reimbursement of court costs, and the applicant has not

alleged any other breach of this provision, for instance that the

calculation of court costs rendered the proceedings unfair,

restricted his access to court or contained an appraisal of his

guilt.

3. The Commission finds that none of the above complaints

disclose any appearance of a violation of the rights set out in

Article 6 (Art. 6) of the Convention. 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 by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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SENN v. SWITZERLAND

SENN v. SWITZERLAND

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