Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18145/91

by H.K.

against Switzerland

__________

The European Commission of Human Rights, sitting in private on

12 January 1993, the following members being present:

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

G. SPERDUTI

E. BUSUTTIL

S. TRECHSEL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 12 April 1991 by

H.K. against Switzerland and registered on 3 May 1991 under file No.

18145/91;

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

Commission's Rules of Procedure;

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 1931, is a lawyer residing

at Zumikon in Switzerland. Before the Commission he is represented by

Messrs. B. Badertscher and J. Stickelberger, lawyers practising in

Zurich.

Particular circumstances of the case

The applicant is the husband of a former Swiss Minister of

Justice who resigned in January 1989.

In 1988 criminal proceedings were instituted against the

applicant and a former company associate. The applicant was in

particular suspected of fraud and forgery while acting as a chairman

of the X-AG, a stock corporation with its seat in Zurich.

On 7 December 1989 the applicant was indicted in respect of three

sets of charges. The bill of indictment comprised 38 pages, excluding

annexes.

One set of charges concerned alleged forgeries committed in view

of an increase of shares at the shareholders' meeting on 18 November

1980. The applicant was accused inter alia of having caused

(veranlasst) the submission of three false documents to the general

meeting.

Secondly, the applicant was charged with forgery regarding

incorrect or incomplete statements in a company prospectus (Prospekt)

published in 1980. He was further charged with having fraudulently

induced investors to subscribe shares and with having fraudulently

arranged the sale of 10,000 shares in 1980.

The third set of charges related to a further capital increase

in 1981. The applicant was accused inter alia of having arranged the

submission, publication, or registration, of various false documents,

and the fraudulent sale of 100,000 shares.

On 2 August 1990 the Indictment Chamber (Anklagekammer) of the

Zurich Court of Appeal (Obergericht) committed the applicant for trial.

Against this decision the applicant filed a public law appeal

(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht),

complaining that the Indictment Chamber had violated Article 6

para. 3 (a) of the Convention by committing him to trial without having

sufficiently specified the charges laid against him.

The applicant further alleged a breach of Article 8 of the

Convention in that proceedings instituted against him and his wife

always resulted in wide press coverage and brought about abusive mail.

His committal for trial and its consequences would lead to further

similar attacks on his private and family life.

On 22 October 1990 the Federal Court dismissed the public law

appeal. The Court regretted the threats and insults against the

applicant and his wife. It noted that they were well known persons and

subject to extraordinary public exposure (unvergleichliche

Exponiertheit). Nevertheless, the Court found that under Article 8

para. 2 of the Convention the applicant's indictment was in accordance

with the law, in particular Section 161 et seq. of the Zurich Code of

Criminal Procedure, and was necessary in order to conduct criminal

proceedings. In respect of the complaint under Article 6 para. 3 (a)

the Court decided not to deal with that part of the applicant's public

law appeal as it concerned an interlocutory decision and did not result

in an irreparable disadvantage for the applicant.

Relevant domestic law

Article 4 of the Federal Constitution states that "All Swiss are

equal before the law" ("Alle Schweizer sind vor dem Gesetze gleich").

The Federal Court has interpreted this provision as granting the

applicant a right sufficiently to be informed of charges against him;

the Court has also stated that in this respect Article 6 para. 3 (a)

of the Convention does not grant further-reaching rights than Article 4

of the Federal Constitution (see Arrêts du Tribunal Fédéral Suisse

116 Ia 73 et seq.).

Under Section 87 of the Federal Judiciary Act a public law appeal

in which a violation of Article 4 of the Federal Constitution is

alleged may be filed with the Federal Court against a final decision

(Endentscheid). Against an interlocutory decision (Zwischenentscheid)

a public law appeal may be filed if it causes an irreparable

disadvantage (einen nicht wiedergutzumachenden Nachteil).

COMPLAINTS

1. Under Article 6 para. 3 (a) of the Convention the applicant

complains that his committal for trial was based on an indictment which

did not sufficiently specify the charges laid against him.

2. The applicant further complains that his committal for trial will

result in unfavourable reports and comments in the media and in abusive

mail. He contends that this constitutes a breach of his right to

respect for his private and family life as guaranteed by Article 8 of

the Convention.

THE LAW

1. The applicant complains under Article 6 para. 3 (a) (Art. 6-3-a)

of the Convention that his committal for trial was based on an

indictment which did not sufficiently specify the charges laid against

him.

The Commission notes that the Federal Court in its decision of

22 October 1990 decided not to deal with that part of the applicant's

public law appeal as it concerned an interlocutory decision and did not

result in an irreparable disadvantage for the applicant. In this

respect the Commission observes in particular that the criminal

proceedings instituted against the applicant are still pending.

An issue arises therefore whether the applicant has complied with

the requirement as to the exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention. The Commission need

not resolve this issue, however, since this part of the application

is in any event inadmissible as being manifestly ill-founded for the

following reasons.

The Commission recalls that under Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention an accused person has the right to be

informed not only of the acts with which he is charged and on which his

indictment is based, but also of the legal classification of the acts

in question (see No. 8490/79, Dec. 12.3.81, D.R. 22 p. 140).

In the present case the Commission considers that the bill of

indictment against the applicant set out in sufficient detail the acts

with which he was charged as well as their legal classification.

Furthermore, the applicant does not claim that his counsel is

being denied access to any item of the case-file or that any relevant

information is otherwise being withheld from the applicant.

Finally, the Commission observes that following the applicant's

committal for trial, the charges brought against him must now be

examined in detail at the trial, in particular whether or not the

applicant had in fact caused the acts leading to the offences.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant also complains that his committal for trial will

result in unfavourable reports and comments in the media and in abusive

mail. This according to him constitutes a breach of his right to

respect for his private and family life as guaranteed by Article 8

(Art. 8) of the Convention.

The Commission considers that, while the applicant's indictment

and committal for trial may have led to such reports and comments, this

cannot in itself qualify as an interference with his right to respect

for private and family life within the meaning of Article 8 (Art. 8)

of the Convention.

Even assuming that the indictment and committal for trial amount

to an interference with the applicant's rights under Article 8

(Art. 8), the Commission considers that this interference would in any

event be justified under Article 8 para. 2 (Art. 8-2) of the

Convention.

As the Federal Court found in its decision of 22 October 1990,

the applicant's committal for trial was based on Section 161 et seq.

of the Zurich Code of Criminal Procedure. The interference was

therefore "in accordance with the law" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

Furthermore, the applicant's committal for trial serves to have

examined at the trial whether or not he has in fact caused the alleged

acts leading to the offences. The interference thus could be regarded

as "necessary in a democratic society ... for the prevention of ...

crime" within the meaning of this provision.

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 Acting President

to the First Chamber of the First Chamber

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

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H.K. v. SWITZERLAND

H.K. v. SWITZERLAND

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