Lexploria

AS TO THE ADMISSIBILITY OF

Applications Nos. 1) 15252/89 2) 15628/89

3) 17384/90

by N.

against Switzerland

The European Commission of Human Rights sitting in private on 13

May 1993, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M. P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. M. de SALVIA, Deputy 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 applications introduced on 1) 23 April 1987,

2) 25 July 1989 and 3) 10 September 1990 by N. against Switzerland and

registered on 1) 20 July 1989, 2) 4 October 1989 and 3) 31 October

1990 under file Nos. 1) 15252/89, 2) 15628/89 and 3) 17384/90;

Having regard to:

- the Commission's decision of 8 April 1991 to join Applications

Nos. 15252/89, 15628/89, 15629/89, 15630/89, 15857/89 and 17384/90;

to communicate certain of the applicant's complaints in so far as they

concern Applications Nos. 15252/89, 15628/89 and 17384/90; and to

declare inadmissible the remainder of the applications;

- the observations submitted by the respondent Government on

19 July 1991 and the observations in reply submitted by the applicant

on 18 September 1991;

- the Commission's decision of 11 May 1992 to declare Applications

Nos. 15252/89, 15628/89 and 17384/90 admissible;

- the Government's observations on the merits of 10 July 1992;

- the Commission's decision of 30 March 1993 to request the

applicant to comment on the Government's observations of 10 July 1992;

- the information provided by the applicant on 19 April 1993;

- the Government's submissions of 30 April 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 1935, is a pig-breeder

residing at Oberbüren in Switzerland.

On 15 December 1982 the police stopped the applicant in his car.

As he was suspected of driving under the influence of alcohol, he

underwent a breath analysis the result of which was positive.

On 4 March 1983 criminal proceedings were instituted against the

applicant. On 8 October 1985 the investigating judge questioned him.

On 27 October 1985 the Wil District Office (Bezirksamt) informed

the applicant of its intention to issue a penal order (Strafbefehl)

against him. The applicant was given a time-limit of eight days to

consult the case-file and submit any further evidence.

On 5 November 1985 the applicant's lawyer asked for leave to

consult the case-file. On 6 November 1985 the investigating judge

replied that the time-limit had expired on 4 November 1985; he enclosed

a penal order, dated 6 November 1985, in which the Wil District Office

convicted the applicant of driving under the influence of alcohol and

obstruction of official acts, and sentenced him to a fine of 200 SFr

and two weeks' suspended imprisonment.

The applicant filed an appeal claiming in particular that he had

not received the letter of 27 October 1985 until 29 October, for which

reason the time-limit had not expired until 6 November 1985. The

appeal was dismissed by the Indictment Chamber (Anklagekammer) of the

Canton of St. Gallen on 3 February 1986. The applicant's further

public law appeal (staatsrechtliche Beschwerde) was rejected by the

Federal Court (Bundesgericht) on 14 January 1987.

Meanwhile, on 21 November 1985, the applicant filed an objection

against the penal order. The case was referred to the Wil Judicial

Commission (Gerichtskommission) which on 1 September 1987 confirmed the

previous conviction. The applicant's appeal was dismissed on

8 March 1988 by the St. Gallen Cantonal Court (Kantonsgericht). On

16 December 1988 the Court of Cassation (Kassationsgericht) of the

Canton of St. Gallen dismissed his plea of nullity

(Nichtigkeitsbeschwerde). His subsequent plea of nullity to the

Federal Court was dismissed on 28 February 1989. His public law appeal

was dismissed by that court on 3 May 1989.

COMPLAINTS

In Application No. 15252/89 it appeared that the applicant

complained under Article 6 para. 1 of the Convention of the length of

the criminal proceedings instituted against him on account of driving

under the influence of alcohol. In Application No. 15628/89 the

applicant again referred to his complaints made in Application No.

15252/89.

In his applications the applicant also complained about the

length of proceedings instituted against the Canton of St. Gallen; and

of the imposition of advance court costs.

PROCEEDINGS BEFORE THE COMMISSION

The applicant filed six applications which were introduced as

follows: 1) Application No. 15252/89 on 23 April 1987; 2) No. 15628/89

on 25 July 1989; 3) No. 15629/89 on 18 May 1989; 4) No. 15630/89 on

18 May 1989; 5) No. 15857/89 on 3 October 1989; and 6) No. 17384/90 on

10 September 1990.

These applications were registered as follows: 1) 20 July 1989;

2) 4 October 1989; 3) 16 October 1989; 4) 16 October 1989;

5) 4 December 1989; and 6) 31 October 1990.

In his statement of 23 April 1987, leading to Application

No. 15252/89, the applicant appeared to complain that the criminal

proceedings instituted against him were not being conducted within a

reasonable time as required by Article 6 para. 1 of the Convention.

In the application form leading to Application No. 15628/89, which

concerned the criminal proceedings instituted against the applicant,

he again referred to the statement of 23 April 1987.

On 8 April 1991 the Commission decided to join the applications;

to communicate them in so far as they concerned the complaints about

the length of the proceedings instituted against the Canton of St.

Gallen, the length of the criminal proceedings instituted against the

applicant, and the court costs of 6,500 SFr which the applicant was

asked to pay in the proceedings against the Swiss Confederation; and

to declare inadmissible the remainder of the applications.

The Government's observations were received by letter dated

19 July 1991.

The applicant's observations were dated 18 September 1991. He

stated that he had not maintained that the criminal proceedings

instituted against him had lasted too long before the Federal Court

("admis que le requérant n'a pas fait valoir que les procédures en

question avaient été trainées en longeur par le Tribunal Fédéral").

On 11 May 1992 the Commission declared Applications Nos.

15252/89, 15628/89 and 17384/90 admissible insofar as they concerned

the applicant's complaints under Article 6 para. 1 of the Convention

about the length of the proceedings instituted against the Canton of

St. Gallen; the length of the criminal proceedings instituted against

the applicant; and about the advance court costs.

On 10 July 1992 the Government maintained that the applicant had

not in his applications before the Commission invoked the complaint

under Article 6 para. 1 of ther Convention about the length of the

criminal proceedings instituted against him.

By decision of 30 March 1993 the Commission requested the

applicant to comment on the Government's observations.

By letter of 19 April 1993 the applicant informed the Commission

that he had not originally raised the complaint under Article 6 para. 1

of the Convention about the length of the criminal proceedings

instituted against him, though he would now raise it.

By letter of 30 April 1993 the Government invited the Commission

to declare the application inadmissible under Article 29 of the

Convention.

THE LAW

On 11 May 1992 the Commission declared admissible the issue under

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

of the criminal proceedings instituted against the applicant.

In their further observations of 10 July 1992 the Government

maintained that the applicant had not in his applications before the

Commission made the complaint at issue.

By letter of 19 April 1993 the applicant informed the Commission

that he had not originally raised the complaint under Article 6 para.

1 (Art. 6-1) of the Convention about the length of the criminal

proceedings instituted against him, though he would now raise it.

In view thereof the Government have invited the Commission to

declare this complaint inadmissible under Article 29 (Art. 29) of the

Convention.

Article 29 (Art. 29) of the Convention states:

"After it has accepted a petition submitted under Article

25 (Art. 25), the Commission may nevertheless decide by a

majority of two-thirds of its members to reject the petition if,

in the course of its examination, it finds that the existence of

one of the grounds for non-acceptance provided for in Article 27

(Art. 27) has been established.

In such a case, the decision shall be communicated to the

parties."

In the present case, it originally appeared that the applicant

was filing a complaint under Article 6 para. 1 (Art. 6-1) of the

Convention of the length of the criminal proceedings instituted against

him. According to his observations of 18 September 1991, however, he

had apparently not maintained that the criminal proceedings instituted

against him had lasted too long before the Federal Court.

In these circumstances, the applicant was asked to clarify the

situation. The applicant now states that he did not originally raise

the complaint at issue. However, he has also stated that he is now

raising the complaint.

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

only deal with a matter "within a period of six months from the date

on which the final decision was taken."

The Commission has satisfied itself that the applicant did not

originally raise the complaint at issue. Insofar as the applicant

stated on 19 April 1993 that he would now raise the complaint under

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

criminal proceedings instituted against him, the Commission notes that

the final decision regarding this complaint was given by the Federal

Court on 3 May 1989. The complaint at issue was therefore introduced

more than six months after the date of this decision. Furthermore, an

examination of the case does not disclose the existence of any special

circusmtances which might have interrupted or suspended the running of

that period.

This part of the applications would therefore fall to be rejected

on the ground of inadmissibility provided for in Article 27 para. 3

(Art. 27-3) of the Convention.

Under these circumstances, the Commission is of the opinion that

this part of the applications should be rejected under Article 29

(Art. 29) of the Convention since one of the grounds for non-acceptance

provided for in Article 27 (Art. 27) of the Convention has been

established.

For these reasons, the Commission, unanimously, and thus by the

majority required in Article 29 (Art. 29),

REJECTS THE APPLICATIONS insofar as they concern the applicant's

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

of the length of criminal proceedings instituted against himself.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

Menu

N. v. SWITZERLAND

N. v. SWITZERLAND

LEXI