Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18468/91

by D.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 15 April 1991 by

D. against Switzerland and registered on 8 July 1991 under file No.

18468/91;

Having regard to the Government's observations submitted on

13 November 1992 and the applicant's observations submitted in reply

on 9 February 1993;

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 parties, may be

summarised as follows:

The applicant, a Swiss citizen born in 1955, is a businessman

residing at Däniken in Switzerland.

I.

On 3 January 1989 the applicant, when driving a car, was stopped

by the police who suspected that he was driving under the influence of

alcohol. His driving licence was withdrawn. The applicant agreed to

go to the Zofingen hospital where a blood sample was taken. The blood

test, which was eventually analysed by the Aarau Cantonal Hospital,

disclosed an alcohol level between 2,92 and 3,23 promille.

Administrative proceedings were then conducted before the

Solothurn Police concerning the withdrawal of the applicant's driving

licence.

On 20 February 1989 the applicant was questioned by the Solothurn

Cantonal Police. He was told that he had been informed of the Report

of the Cantonal Police and the blood analysis, and he was asked whether

he had comments to make. The applicant replied that he did not contest

the Report, though he found the result of the blood analysis too high.

Subsequently, the applicant contested the correct result of the

blood test analysis and requested a second analysis. This was

prepared, at the applicant's costs, on 14 March 1989 by the Forensic

Medicine Institute (Gerichtsmedizinisches Institut) at the University

of Zurich. The second analysis reached approximately the same result,

namely that the applicant's blood alcohol level had reached between

2,86 and 3,16 promille. The Institute pointed out that the different

result was due to the storing and repeated opening of the blood sample

taken.

The applicant suspected that the blood sample had been confused

with another sample and therefore requested a comparative examination

of the blood tests. On 22 May 1989 the authorities instructed the

Forensic Medicine Institute at the University of Zurich to undertake

such an examination. In its report of 24 August 1989, the Institute

concluded that the blood test of 3 January 1989 stemmed with certainty

from the applicant.

II.

Criminal proceedings were then instituted before the Zofingen

District Court (Bezirksgericht).

On 26 May and 6 June 1989 the Public Prosecutor's Office

(Staatsanwaltschaft) of the Canton of Aargau indicted the applicant of

the offence of driving under the influence of alcohol. The applicant,

who was represented by the lawyer R., contested the accusations as he

had not drunk the amount claimed. According to the applicant's

submissions, throughout these proceedings he had requested to see the

two blood analyses of the Aarau Hospital and the Zurich Institute.

According to the subsequent judgment of the Zofingen District Court he

requested the hearing of five witnesses, a further analysis undertaken

by a German University, and insight into "a detailed analysis of the

Zurich Medical Institute" ("detaillierte Analyse vom Medizinischen

Institut Zürich").

By letter of 20 July 1989 the applicant's lawyer R. requested

consultation of the case-file. This was then transmitted to him. The

case-file included the police report of 3 January 1989, the blood

analysis of the Aarau Cantonal Hospital, and the analysis of the

Forensic Medicine Institute at the University of Zurich. The case-file

was returned to the District Court on 14 August 1989.

On 12 October 1989 a hearing was held before the Zofingen

District Court at which the applicant was heard. He requested in

particular a more lenient sentence.

On the same day, the District Court convicted the applicant of

driving under the influence of alcohol and sentenced him

unconditionally to three months' imprisonment and a fine of 1.000 SFr.

The decision states that the applicant was represented by R. and that

it would be served on R.

In its decision the Court noted the applicant's requests for the

taking of evidence but did not deal with them. It found that,

virtually without exception, blood analyses could be considered as

being of very reliable objective evidential value. The Court concluded

on the basis of the two blood analyses and the comparative examination

that the applicant had indeed committed the offence at issue.

On 26 October 1989 the Police Department of the Canton of

Solothurn decided that the applicant's driving licence was to remain

withdrawn until 2 May 1990. The decision stated that the applicant was

represented by the lawyer R.

The applicant appealed against his conviction and sentence,

requesting inter alia to be handed out (Herausgabe) the police report

in his case, the report of the Zofingen hospital and the detailed

analyses of the Aarau hospital and of the Zurich University Institute.

He further requested the hearing of the witnesses. The applicant also

complained that the District Court had not dealt with his requests to

be given the blood analyses.

On 25 March 1990 the Court of Appeal (Obergericht) of the Canton

of Aargau rejected the appeal, while reducing the applicant's

imprisonment to two months. The decision stated that the applicant was

represented by the lawyer R.

In its decision the Court regarded the applicant's request to be

handed out various documents as being inadmissible. The Court

considered that the handing out of documents had not been part of the

previous decision (bildeten nicht Gegenstand des vorinstanzlichen

Urteils) and could not therefore be the object of an appeal. As

regards the hearing of witnesses the Court found that a blood analysis

constituted the most importance evidence to prove driving under the

influence of alcohol, and that it was unlikely that the hearing of

witnesses would produce more favourable evidence.

The applicant lodged with the Federal Court a plea of nullity

(Nichtigkeitsbeschwerde) and a public law appeal (staatsrechtliche

Beschwerde) in which he complained of his conviction. He also

complained that he did not have a fair hearing as he was never handed

out all documents of the case-file and that the witnesses were not

heard. In his public law appeal he quoted verbatim from the

comparative analysis of the Forensic Institute of 24 August 1989. He

also stated that "the contested decision had been served on

1990 to his lawyer" ("das angefochtene Urteil wurde am 15.6.1990 meinem

Anwalt zugestellt").

On 19 September 1990 the Federal Court rejected both the plea of

nullity and the public law appeal. The Federal Court did not deal with

the applicant's complaint that he was never handed out all documents

of the case-file.

COMPLAINTS

The applicant complains under Article 6 of the Convention of the

unfairness and the outcome of these proceedings. He complains inter

alia that he was never given the police report, the report of the

Zofingen hospital or the blood analyses and that for this reason he

could not defend himself properly. He further complains that no

witnesses were heard; thus, various persons could have explained how

much alcohol he had drunk on the day concerned and whether he had been

drunk when stopped by the police or when blood had been taken at the

hospital.

The applicant also complains under Articles 2 and 3 of the

Convention of the treatment suffered, and under Article 5 of the

Convention of the withdrawal of his driving licence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 April 1991 and registered

on 8 July 1991.

On 2 September 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

insofar as it concerned the applicant's complaints under Article 6

para. 1 of the Convention about the consultation of the case-file.

The Government's observations were submitted on 13 November 1992

and the applicant's observations in reply on 9 February 1993.

THE LAW

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

Convention of the outcome of these proceedings and their unfairness.

a) The Commission recalls that in accordance with Article 19

(Art. 19) of the Convention its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers on this point to its established

case-law (see e.g. No. 458/89, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 p. 31, 45).

It is true that the applicant has also raised complaints under

Article 6 (Art. 6) of the Convention about the unfairness of the

proceedings.

b) The applicant complains that he could not defend himself properly

as in the criminal proceedings conducted against him he was never given

the police report; the report of the Zofingen hospital; or the blood

analyses.

The Government submit that in respect of this complaint the

applicant has not complied with the requirement under Article 26

(Art. 26) of the Convention of the exhaustion of domestic remedies.

On 25 March 1990 the Court of Appeal declared inadmissible the

applicant's request to be handed out various documents, as this

complaint had not been part of the previous decision. Thus, there was

no cantonal decision of last instance. As a result, the applicant had

not complied with the requirement under Section 86 para. 2 of the

Organisation of Justice Act according to which, in order to file a

public law appeal before the Federal Court, the applicant must have

exhausted all cantonal remedies. As he did not do so, the Federal

Court could not examine the issue, and indeed, in its decision of

19 September 1990 did not do so.

Under Article 26 (Art. 26) of the Convention "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law ...". According to the Commission's case-law, domestic remedies

have not been exhausted where a domestic remedy is not admitted because

of a procedural omission or mistake (see No. 6878/75, Dec. 6.10.76,

D.R. 6 p. 79).

It is true that in the present case the Court of Appeal in its

decision of 25 March 1990 declared inadmissible the applicant's

complaint as it had not been part of the previous decision.

However, the Commission notes, on the one hand, that no grounds

were given in the domestic proceedings why the complaint at issue had

not been part of the decision. On the other hand, it transpires

clearly from the facts of the case that the applicant filed the request

to be handed out these documents before the District Court, the Court

of Appeal and the Federal Court.

The applicant's complaints cannot therefore be rejected under

Article 26 (Art. 26) of the Convention for non-exhaustion of domestic

remedies.

As regards the well-foundedness of the complaint, the Government

submit that the applicant in fact was made aware of the police report

of 3 January 1989 and the analysis of the Aarau Cantonal Hospital when

questioned on 20 February 1990. Moreover, upon the request of the

lawyer R. of 20 July 1989, the case-file, including the analysis of the

Forensic Medicine Institute at the University of Zurich of 14 March

1989, was transmitted to the lawyer. It appears from the applicant's

public law appeal to the Federal Court that, when filing this appeal,

he was also aware of the comparative analysis of the Forensic Institute

of 24 August 1989. On the other hand, the absence of the Zofingen

Hospital report from the case-file did not breach the applicant's

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

The applicant submits that he had not instructed the lawyer R.

to represent him in these proceedings, and it is inexplicable why R.

was nevertheless active. Moreover, on 20 February 1989 he was only

informed of the content of the police report and the blood analysis,

though they were not handed out to him. He accepts that he was given

a copy of the comparative analysis of 24 August 1989, but submits that

it did not contain the precise results of the analysis.

The Commission finds it established that the applicant obtained

the comparative analysis of 24 August 1989, and that the report of the

Zofingen District Hospital was never in the case-file.

The Commission further notes, on the one hand, that the applicant

denies having seen a copy of the police report or the blood analysis

of the Aarau Cantonal Hospital, though he was informed of the content

thereof. On the other hand, it is not disputed that the lawyer R.

could consult the case-file during the proceedings before the Zofingen

District Court.

It is true that the applicant denies having instructed lawyer R.

to represent him in these proceedings.

However, the Commission observes that the lawyer R. is referred

to as the applicant's representative in the decision of the Zofingen

District Court of 12 October 1989; the decision of the Solothurn Police

Department of 26 October 1989; and the decision of 25 March 1990 of the

Court of Appeal of the Canton of Aargau. The applicant has not

provided any explanation therefor, and has also not shown, for

instance, that he complained to these courts, claiming that in fact R.

was not his lawyer. Moreover, the judgment of the Zofingen District

Court of 12 October 1989 was served on R. for the applicant. In his

public law appeal to the Federal Court the applicant referred to R. as

"my lawyer". In such circumstances, the Commission considers that the

lawyer R. was in fact representing the applicant.

The applicant or his lawyer thus had knowledge of the police

report of 3 January 1989; the analysis of the Aarau Cantonal Hospital;

the analysis of the Zurich Forensic Institute of 14 March 1989; and the

analysis of the Zurich Forensic Institute of 24 August 1989.

It follows that the applicant or his lawyer had all relevant

documents at their disposal to prepare their defence. They were in

particular in a position effectively to contest the blood analyses,

either that the sample analysed did not stem from him, or that the

results were incorrect.

Insofar as the report of the Zofingen District Hospital of

3 January 1989 was not in the case-file, the applicant has not shown

that in view of the other documents in the file the absence of this

report diminished his rights of defence.

c) Insofar as the applicant further complains that no witnesses were

heard in the criminal proceedings instituted against him, the

Commission recalls the Convention organs' case-law according to which

the admissibility of evidence is primarily a matter for regulation by

national law. 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 Commission does not find it unreasonable

if the courts concerned concluded on the basis of two blood analyses

and the comparative examination that the applicant had indeed committed

the offence at issue, and considered it unnecessary to take further

evidence.

d) It follows that these complaints do not disclose any appearance

of a violation of the rights set out in Article 6 (Art. 6) of the

Convention. This part of the application is therefore manifestly ill-

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

Convention.

2. Insofar as the applicant raises complaints under Articles 2 and

5 (Art. 2, 5) of the Convention, the Commission finds no issue under

these provisions. The remainder of the application is therefore also

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 First Chamber Acting President of the

First Chamber

(M.F. BUQUICCHIO) (F. ERMACORA)

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D. v. SWITZERLAND

D. v. SWITZERLAND

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