AS TO THE ADMISSIBILITY OF

                      Application No. 17116/90

                      by B.S.

                      against Switzerland

      The European Commission of Human Rights sitting in private on

11 May 1992, the following members being present:

           MM.   C.A. NØRGAARD, President

                 J.A. FROWEIN

                 S. TRECHSEL

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

           Mrs.  G.H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 A.V. ALMEIDA RIBEIRO

                 M.P. PELLONPÄÄ

                 B. MARXER

                 Mr. H.C. KRÜGER, 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 application introduced on 6 August 1990 by

B.S. against Switzerland and registered on 4 September 1990 under file

No. 17116/90;

      Having regard to the observations submitted by the respondent

Government on 9 September 1991 and the observations in reply submitted

by the applicant on 10 October 1991;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Swiss citizen born in 1950, is a businessman

residing in Zurich.  Before the Commission he is represented by Mr.

L.A. Minelli, a lawyer practising at Forch in Switzerland.

A.    Particular circumstances of the case

I.

      The applicant runs a sex shop in Zurich for homosexual persons.

He sells magazines, books, video films and other objects. Clients know

of the shop from advertisements in specialised magazines or from

meeting places for homosexuals.  From the street the nature of the shop

is not discernible.

      In a room at the back of the shop the applicant showed video

films to certain persons.  The films were changed every one or two

weeks.  Persons knew of these films by word of mouth.  Thus, between

21 and 23 November 1983 the applicant showed the film "New York City",

lasting 120 minutes and consisting almost exclusively of sexual acts.

Entry to the film was open to any male person interested who paid an

entrance fee of 15 SFr or bought sex magazines for over 50 SFr and

showed a membership card.  Altogether nine persons saw the film.

      On 23 November 1983, following a search of the premises, the

Zurich District Attorney's Office (Bezirksanwaltschaft) confiscated the

film "New York City", the video recorder, and film takings of 60 SFr.

Criminal proceedings were then instituted against the applicant.  On

28 November 1983 the applicant was questioned by the police.

      On 15 March 1984 the Zurich District Attorney's Office issued a

penal order (Strafbefehl) convicting the applicant of publishing

obscene material contrary to Section 204 of the Swiss Penal Code

(Strafgesetzbuch; see below, Relevant domestic law and practice). The

applicant was also convicted of driving under the influence of alcohol.

For both offences he was fined 6,000 SFr.

      Upon the applicant's objection (Einspruch), proceedings were

instituted before the Zurich District Court (Bezirksgericht).  On

27 June 1984 the Court convicted the applicant of driving under the

influence of alcohol and imposed a fine of 1,000 SFr.  With regard to

the offence of publishing obscene material the Court acquitted the

applicant.

      In its decision the District Court considered that the nature of

the shop was not discernible from the street.  Persons wishing to see

the film had to disclose that they were homosexuals or show their

membership card.  There was also a control in that unwanted persons had

no access.  Thus the Court considered that only a small circle of

persons could see the film, namely those who knew of it and wanted to

see it.

      The Court observed that a young plain clothes policeman had seen

the film after paying 15 SFr.  The Court considered here the

applicant's submissions according to which he had thought the man to

be homosexual; he had left the film room very quickly.  The fact that

the applicant still remembered this client's conduct led the Court to

conclude that the applicant had effective control over his clients.

      Given the small circle of viewers it could not be said, in the

Court's view, that the obscene material had been made "public" within

the meaning of Section 204 of the Penal Code.  The applicant had

undertaken all the necessary precautions to ensure that no viewers were

unintentionally confronted with the material.

      The judgment was pronounced orally on 27 June 1984.  According

to a stamp on the last page of the judgment it was served on the

applicant on 23 October 1984.  According to the subsequent appeal of

the Public Prosecutor's Office (Staatsanwaltschaft), the judgment was

served on the District Attorney's Office on 29 November 1984.

II.

      The Zurich Public Prosecutor's Office appealed against the

decision of the District Court to the Court of Appeal (Obergericht) of

the Canton of Zurich.

      According to the Public Prosecutor's Office, the written reasons

of the judgment had been forwarded from the District Attorney's Office

on 3 December 1984.  Following a request on 4 December 1984 for the

transfer of the case-file, the appeal was filed on 6 December 1984.

The applicant submits that the minutes (Protokoll) of the criminal

proceedings of the Zurich District Court state: "12 December 1984.  On

10 December 1984 ... the Public Prosecutor's Office lodged the appeal"

(" Den 12. Dezember 1984. Mit Eingabe vom 10. Dezember 1984 ... hat der

Staatsanwalt die Berufung erklärt").

      On 10 January 1985 the applicant requested the Zurich Court of

Appeal not to admit the appeal of the Public Prosecutor's Office for

being out of time.  He also complained that the different time-limits

in Section 412 of the Zurich Code of Criminal Procedure (Strafprozess-

ordnung; see below, Relevant domestic law and practice) breached the

equality of arms guaranteed by Article 6 para. 1 of the Convention.

      On 18 January 1985, after conducting a hearing, the Court of

Appeal convicted the applicant of publishing obscene material contrary

to Section 204 para. 1 of the Penal Code, and of driving under the

influence of alcohol, and imposed a fine of 4,000 SFr.

      In its judgment, the Court first noted that the decision of the

District Court had reached the Public Prosecutor's Office on 3 December

1984, for which reason its appeal, filed on 10 December 1984, complied

with the time-limit of Section 412 of the Code of Criminal Procedure.

The different calculation of time-limits was explained by the fact that

before the Court of Appeal it was no longer the District Attorney's

Office acting as the prosecutor.  The Public Prosecutor's Office which

now dealt with the appeal had first to acquaint itself with the

case-file.

      With regard to the offence of publishing obscene material the

Court of Appeal considered that Section 204 envisages the protection

of the public in a wider sense.  The Court noted the conditions of

access to the backroom of the applicant's shop and the fact that the

membership card stated no particulars of the bearer.  It also noted the

applicant's submissions that he himself could tell whether or not a

person was homosexual.  The Court continued:

[Translation]

      "The qualification of publicity does not fall away merely by

      applying a restriction of the group of viewers.  Rather, the

      latter must clearly be circumscribed and subject to control ...

      The applicant's film projection occurred - contrary to the view

      of the lower court - publicly as it was accessible, not to an

      objectively limited number of a few persons, but an unlimited

      number of persons, namely all homosexuals and bisexuals.  Given

      the above-mentioned circumstances, the circle of viewers was

      therefore not sufficiently subject to control ...  Moreover, the

      accused could not determine merely on the basis of the appearance

      of a person who, when a first-time client, could not be

      personally known to him, whether he was a homosexual person  ...

      Thus, the applicant, without further ado, granted a plain clothes

      policeman, who was investigating the sex shop, entry to the

      obscene film at issue as he incorrectly took him to be a

      homosexual."

[German]

      "Das Merkmal der Öffentlichkeit entfällt nicht schon durch die

      Anordnung irgendeiner Begrenzung des Zuschauerkreises, sondern

      erst, wenn dieser eindeutig umschrieben und überprüfbar ist ...

      Die fragliche Filmvorführung des Angeklagten erfolgte - entgegen

      der Ansicht der Vorinstanz - öffentlich, weil sie nicht lediglich

      einem objektiv begrenzten Kreis von wenigen Personen, sondern

      einem unbeschränkten Personenkreis, nämlich allen Homo- und

      Bisexuellen zugänglich war.  Der Zuschauerkreis war aufgrund der

      oben erwähnten Umstände insbesondere nicht genügend überprüfbar

      ...  Zudem konnte der Angeklagte nicht lediglich aufgrund der

      Erscheinung einer Person, die ihm zumindest als erstmaliger Kunde

      persönlich nicht bekannt sein konnte, beurteilen, ob es sich um

      einen Homosexuellen handle.  So gewährte der Angeklagte ohne

      weiteres auch einem jungen Polizeibeamten in zivil, der eine

      Überprüfung des Sex-Shops vornahm, Zutritt zum fraglichen

      unzüchtigen Film, weil er ihn fälschlicherweise für einen

      Homosexuellen hielt."

      In its decision the Court also dismissed the applicant's request

to hear the policeman as a witness, inter alia as it would be

impracticable to have to hear as a witness every official who had

participated during the investigations.

III.

      Against this decision the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) with the Court of Cassation

(Kassationsgericht) of the Canton of Zurich.  In its decision of 25

November 1985 the Court of Cassation upheld the plea of nullity and

quashed the previous decision on the ground that the Court of Appeal

should have heard the policeman as a witness.  Its decision was served

on the applicant on 27 December 1985.

IV.

      Proceedings were then resumed before the Court of Appeal of the

Canton of Zurich which on 28 August 1986 invited the parties to the

appeal hearing on 21 October 1986.  On 29 October 1986 the Court of

Appeal convicted the applicant of the offence of publishing obscene

material and of driving under the influence of alcohol and imposed a

fine of 4,000 SFr.  The decision was served on the applicant on

17 February 1987.

V.

      On 2 March 1987 the applicant filed a plea of nullity against

this decision, complaining inter alia of a breach of Article 10 of the

Convention. He also referred to the undue length of the proceedings.

On 24 March 1987 the Public Prosecutor's Office filed its observations

thereupon with the Court of Cassation.

      On 2 May 1988 the Court of Cassation convicted the applicant of

driving under the influence of alcohol and imposed a fine of 800 SFr.

It acquitted him of the offence of publishing obscene material.

      In its decision the Court found that it was not up to the

Convention States to define what fell under Article 10 of the

Convention.  Rather, freedom of expression comprised the freedom of

individual communication, including the showing of pornographic films.

The decision continues:

[Translation]

      "According to the facts underlying the contested conviction there

      was no danger that persons without or even against their

      intention would have been confronted with the incriminated film.

      Admittedly the purchase or delivery of the membership card,

      entitling the bearer to enter the projection room, did not

      involve serious difficulties ... So it can indeed not be said

      that it was a closed private group of persons.  On the other

      hand, there can be no doubt that the sex shop in question and,

      a fortiori, the adjacent separate projection room could only be

      visited by persons who came with the knowledge of what was

      awaiting them and intending to see this kind of film ...  If in

      fact the only issue is whether adults, who in full knowledge of

      its content want to see the film at issue, are indirectly to be

      hindered by means of the criminal prosecution of the applicant,

      no "pressing social need" can be discerned for such a manner of

      proceeding.  If it were an urgent necessity to protect the

      individual from his wish to see obscene publications, one would

      consequently also have to punish the private showing of such

      films, which however is not the case."

[German]

      "Nach dem der angefochtenen Verurteilung zugrundeliegenden

      Sachverhalt bestand keine Gefahr dafür, dass Personen ohne oder

      gar gegen ihre Absicht mit dem inkriminierten Film konfrontiert

      worden wären.  Zwar ist davon auszugehen, dass der Erwerb bzw.

      die Aushändigung des Kundenausweises, welcher den Inhaber zum

      Betreten des Vorführraumes berechtigte, mit keinen grossen

      Schwierigkeiten verbunden war ..., so dass in der Tat nicht von

      einem geschlossenen, privaten Personenkreis gesprochen werden

      kann.  Auf der anderen Seite besteht aber kein Zweifel daran,

      dass der fragliche Sex-Shop und somit erst recht der dazu

      gehörende separate Vorführraum nur von Personen aufgesucht wurde,

      die in Kenntnis des sie Erwartenden und mit der Absicht, diese

      Art von Film zu besichtigen, kamen ...  Wenn es faktisch also nur

      darum gehen kann, erwachsene Personen, welche in Kenntnis des

      Inhaltes den fraglichen Film sehen wollen, durch strafrechtliche

      Verfolgung des Beschwerdeführers indirekt daran zu hindern, so

      kann ein "dringendes soziales Bedürfnis" für ein solches Vorgehen

      nicht erkannt werden. Hält man es für dringend erforderlich, den

      einzelnen vor seinem Wunsch zur Betrachtung unzüchtiger

      Veröffentlichungen zu schützen, so müsste folgerichtigerweise

      auch die völlig geschlossene, private Vorführung deartiger Filme

      bestraft werden, was jedoch nicht der Fall ist."

VI.

      On 9 May 1988 the Zurich Public Prosecutor's Office filed a plea

of nullity against this decision with the Federal Court

(Bundesgericht).  On 19 June 1988 the applicant filed his observations

thereupon.

      On 20 September 1988 the Federal Court upheld the plea of

nullity, quashed the decision of the Court of Cassation, and sent the

case back to that court for a new judgment.  The decision was served

on the applicant on 14 November 1988.

      In its decision, the Federal Court stated with reference to

Article 10 of the Convention and the case-law of the European Court of

Human Rights:

[Translation]

      "There is no reason why the morals of adult persons (among whom

      there are also persons who are unstable and easily influenced)

      and thus the morals of society as a whole should not also be

      protected.  In any event, this opinion lies within the margin of

      appreciation which the European Court has granted to the

      Convention States.  It duly considers the different points of

      view which can prevail in a democratic society with regard to the

      necessity of protecting morals."

[German]

      "Es ist nicht einzusehen, wieso nicht auch die Moral erwachsener

      Personen (unter denen sich ebenfalls labile und leicht

      beeinflussbare Menschen befinden) und damit die

      gesamtgesellschaftliche Moral schützenswert sein sollten.

      Jedenfalls liegt diese Ansicht im Rahmen des vom Europäischen

      Gerichtshof den Vertragsstaaten eingeräumten Ermessens, welches

      den verschiedenen Standpunkten Rechnung trägt, die in einer

      demokratischen Gesellschaft hinsichtlich der Erfordernisse des

      Schutzes der Moral vorherrschen können."

      The Federal Court then considered the Court's judgment in the

Müller case (see Eur. Court H.R., judgment of 24 May 1988, Series A No.

133).  It continued:

[Translation]

      "The difference from the case to be decided today is that in the

      present case no adults were confronted against their will, and

      no young persons were confronted with the incriminated film "New

      York City".  But also in such cases punishment is legitimate.

      As explained above, Section 204 of the Penal Code concerns the

      protection of public decency and morals.  No obscene objects

      should be propagated and publicly displayed.  To achieve this aim

      a prohibitory norm was enacted and endowed with penal sanctions.

      Such a penal norm is necessary as the protection aimed at could

      not (at least not with the same efficiency) be achieved in a

      different manner."

[German]

      "Der Unterschied zum heute zu beurteilenden Fall besteht darin,

      dass in casu keine Erwachsenen gegen ihren Willen und keine

      Jugendlichen mit dem inkriminierten Film "New York City"

      konfrontiert wurden.  Aber auch in Fällen dieser Art ist eine

      Bestrafung zulässig.  Wie oben dargelegt, geht es beim Art. 204

      StGB um den Schutz der öffentlichen Sittlichkeit und Moral.  Es

      soll verhindert werden, dass unzüchtige Gegenstände verbreitet

      und öffentlich zur Schau gestellt werden können.  Um dieses Ziel

      zu erreichen, wurde eine Verbotsnorm aufgestellt und diese mit

      strafrechtlichen Sanktionen ausgestattet. Eine solche Strafnorm

      ist notwendig, weil der angestrebte Schutz auf andere Weise gar

      nicht (oder jedenfalls nicht in gleich wirksamer Weise) erreicht

      werden könnte."

      Finally, the Federal Court regarded it as an abuse of rights

(rechtsmissbräuchlich) for the applicant to invoke the right to freedom

of expression although he was clearly only interested in substantial

financial profits from sex business.

      The Court thus found that it violated Federal law if Section 204

of the Penal Code was not applied on the grounds that it did not comply

with Article 10 of the Convention.

VII.

      On 3 April 1989 the Zurich Court of Cassation convicted the

applicant of publishing obscene material.  In addition to the fine

imposed on the applicant on 2 May 1988 he was fined 2,500 SFr.

      In its decision, the Court of Cassation noted inter alia that the

Federal Court had not expressed itself on the issue whether the

applicant's acquittal was still possible on the basis of an

interpretation of Section 204 of the Penal Code which complied with

Federal law.  However, the Court of Cassation considered that

undoubtedly (unzweifelhaft) the Federal Court had referred the case

back to the Court of Cassation in order to convict the applicant (zur

Verurteilung des Beschwerdeführers) according to Section 204.

VIII.

      The applicant then filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court in which he complained of a

violation of Articles 6, 8 and 10 of the Convention.  On 31 January

1990 the Federal Court dismissed the appeal.  The decision was served

on the applicant on 16 February 1990.

      In its decision the Court noted that the applicant had correctly

not complained that Section 204 of the Penal Code contradicted the

Convention (see below Relevant domestic law and practice).  To the

extent that he complained of an indirect violation of Articles 89 and

10 of the Convention the Court declared the public law appeal

inadmissible as the appropriate remedy would be the plea of nullity to

the Federal Court.  In this respect, the Federal Court noted that it

had already previously decided on the compatibility in the instant case

of the applicant's conviction with Article 10 of the Convention (see

above VI.).

      With regard to the different time-limits for filing an appeal

before the Zurich Court of Appeal, the Federal Court regarded the

difference as being justified, given the fact that, even if the accused

did not at the outset file an appeal, he could do so according to

Section 425 of the Code of Criminal Procedure until the end of the

appeal hearing. Moreover, the prosecution also had to consider matters

of public order and security.  In fact, both parties could

independently file an appeal.  The Court found that no issue arose

under the Convention if the Public Prosecutor's Office, before deciding

whether it would file an appeal, knew whether the applicant had done

so.

IX.

      Meanwhile, on 23 December 1988 the applicant was convicted by the

Zurich District Court of the new offence of contravening Section 204

of the Penal Code by selling obscene publications in his shop and fined

8,000 SFr. The Court found that everybody had had access to the shop.

It noted that policemen had been able to obtain the publications.  In

any event it was not relevant for the application of Section 204

whether a person could unintentionally be confronted with the obscene

material since this provision protected public decency in general.

      The applicant's appeal against this decision was dismissed on

15 June 1989 by the Zurich Court of Appeal.  His further plea of

nullity was dismissed by the Court of Cassation on 8 August 1990.

      On 23 October 1990 the Zurich District Attorney's Office issued

a penal order in which it convicted the applicant of selling obscene

material contrary to Section 204 of the Penal Code and imposed a fine

of 9,000 SFr.

B.    Relevant domestic law and practice

I.

      Article 204 of the Swiss Penal Code provides:

[Translation]

      "1.  Anyone who makes or has in his possession any writings,

      pictures, films or other items which are obscene, with a view to

      trading in them, distributing them or displaying them in public,

      or who, for the above purposes, imports, transports or exports

      such items or puts them into circulation in any way, or who

      openly or secretly deals in them or publicly distributes or

      displays them or by way of trade supplies them for hire, or who

      announces or makes known in any way, with a view to facilitating

      such prohibited circulation or trade, that anyone is engaged in

      any of the aforesaid punishable activities, or who announces or

      makes known how or through whom such items may be directly or

      indirectly procured, shall be imprisoned or fined.

      2.  Anyone supplying or displaying such items to a person under

      the age of 18 shall be imprisoned or fined.

      3.  The court shall order the destruction of the items."

[German]

      "1.  Wer unzüchtige Schriften, Bilder, Filme oder andere

      unzüchtige Gegenstände herstellt oder vorrätig hält, um damit

      Handel zu treiben, sie zu verbreiten oder öffentlich

      auszustellen, wer solche Gegenstände zu den genannten Zwecken

      einführt, befördert oder ausführt oder sonstwie in Verkehr

      bringt, wer solche Gegenstände öffentlich oder geheim verkauft,

      verbreitet, öffentlich ausstellt oder gewerbsmässig ausleiht,

      wer, um die verbotene Verbreitung oder den verbotenen Vertrieb

      zu fördern, ankündigt oder sonstwie bekannt gibt, dass sich eine

      Person mit den genannten strafbaren Handlungen befasst, wer

      ankündigt oder bekannt gibt, wie und durch wen die genannten

      Gegenstände unmittelbar oder mittelbar bezogen werden können,

      wird mit Gefängnis oder mit Busse bestraft.

      2.  Wer solche Gegenstände einer Person unter 18 Jahren übergibt

      oder vorzeigt, wird mit Gefängnis oder mit Busse bestraft.

      3.  Der Richter lässt die unzüchtigen Gegenstände vernichten."

      The Federal Court has interpreted the notion "public" as

requiring that an indeterminate group of persons, not subject to

control (unbestimmter, unkontrollierter Personenkreis), has access to

the obscene material.  The agreement of the persons concerned is

irrelevant (see Arrêts du Tribunal fédéral suisse [ATF] 100 IV 237, 96

IV 68, 87 IV 84).

II.

      As regards the time-limit for filing an appeal Section 412 of the

Code of Criminal Procedure of the Canton of Zurich states:

[Translation]

      "The time-limit for filing an appeal is ten days.

      It commences for the injured party and the accused on the day

      when the judgment is pronounced orally and, where there is no

      such pronouncement, from the date when the written reasons are

      served...

      For the Public Prosecutor's Office the time-limit for filing the

      appeal begins on the day when it has been served the written

      reasons of the judgment.  The Public Prosecutor's Office shall

      record, on the copy of the judgment, the day of its receipt ...."

[German]

      "Die Berufungsfrist beträgt zehn Tage.

      Sie läuft dem Geschädigten und dem Angeklagten von der Eröffnung

      des Urteils und, wo eine solche nicht erfolgt ist, von der

      schriftlichen Mitteilung an ...

      Der Staatsanwaltschaft läuft die Frist zur Berufung von dem Tage

      an, an welchem die schriftliche Urteilsausfertigung bei ihr

      eingegangen ist. Sie hat den Tag des Eingangs auf dieser

      Ausfertigung auszumerken...".

      According to Section 414 of the Code of Criminal Procedure, the

time-limit commences again if the Public Prosecutor's office, during

the time-limit for filing the appeal, requests consultation of the

case-file.

      Section 425 of the Code of Criminal Procedure provides that the

accused may until the end of the appeal hearing join the appeal of the

Public Prosecutor's Office and file requests with regard to all parts

of the first instance decision, "as if he himself had filed the appeal"

("wie wenn er selbst die Berufung eingelegt hätte").

III.

      According to Section 113 para. 3 of the Federal Constitution

(Bundesverfassung) the Federal Court cannot examine whether a Federal

Act (Bundesgesetz), such as the Penal Code, complies as such with the

Constitution or the Convention.  Complaints about violations by

cantonal authorities of the Constitution or the Convention must in the

last resort be filed with the Federal Court by means of a public law

appeal (Section 84 of the Federal Judiciary Act, Organisationsgesetz).

The incorrect application of a Federal Act must be raised in a plea of

nullity (Section 268 of the Federal Act on Criminal Procedure,

Bundesstrafprozessordnung).  Where it is complained that a judge, by

incorrectly interpreting a Federal Act, has breached the Convention,

this complaint is considered as one of an indirect violation of the

Convention (mittelbare Konventionsverletzung) which must be raised in

a plea of nullity (See ATF 116 I a 74 f, 112 IV 133).

COMPLAINTS

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

of the undue length of the criminal proceedings instituted against him.

2.    Also under Article 6 para. 1 the applicant complains of various

breaches of the principle of equality of arms.  He submits that both

in the District Court and the Court of Appeal proceedings no member of

the prosecution is obliged to be present at the hearing.  He further

points out the difference in serving the written reasons of the

judgment, i.e. no date of receipt is stamped on the written reasons

served on the District Attorney's Office.  There is thus no objective

proof of the moment when the Office received the judgment. Finally, the

applicant complains about the different calculation of time-limits

under Sections 412 and 414 of the Code of Criminal Procedure.

3.    Under Article 10 of the Convention the applicant complains of his

conviction for showing the film "New York City".  He submits that his

right to freedom of expression has been breached.  He complains that

Section 204 is not sufficiently precise and that the conviction was

unnecessary, given the fact that only persons who intended to see the

film could do so, and that young people were not allowed in.

4.    Under Article 8 of the Convention the applicant further complains

that, as the nature of the shop was not discernible from the street,

the prohibition to show the film on his own premises breached his right

to respect for private life.

5.    The applicant extends the complaints under Articles 8 and 10 of

the Convention to his subsequent convictions for selling obscene

publications in his shop.  With reference to Article 26 of the

Convention he submits that in respect of these convictions an appeal

to the Federal Court would have been pointless.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 6 August 1990 and registered

on 4 September 1990.

      On 27 May 1991 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.

      The Government's observations were received by letter dated

7 September 1991 and the applicant's observations by letter dated

10 October 1991.

THE LAW

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

Convention of the undue length of the criminal proceedings instituted

against him.

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

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

      The applicant points out that he raised this complaint in his

plea of nullity on 2 March 1987, though he was not obliged actively to

contribute to shortening the proceedings.  In any event, a complaint

about the length of proceedings would be pointless, since the Federal

Court has so far never ordered a lower court to conclude a trial by a

certain date.

      The Government contend that the applicant has not exhausted

domestic remedies as required by Article 26 (Art. 26) of the

Convention.  He did not raise a complaint based on Article 4 (Art. 4)

of the Federal Constitution before the domestic courts.  The Federal

Court could for instance give instructions to a lower court to expedite

the proceedings.

      The Commission recalls that in previous cases against Switzerland

concerning the length of proceedings it found that, in order to comply

with the requirements under Article 26 (Art. 26) of the Convention, the

applicant had to file with the authority concerned a complaint based

on Article 4 (Art. 4) of the Federal Constitution or Article 6 para.

1 (Art. 6-1) of the Convention.  However, these cases concerned pending

proceedings.  The Commission also found that the situation was

different if the applicant complained about the length of proceedings

which had been terminated, and where Swiss law provided no further

remedy (see No. 13523/88, Dec. 4. 10. 90, to be published in D.R., with

further references).

      In the present case the applicant is complaining about the entire

length of the proceedings, after their termination, ending with the

service on 16 February 1990 of the decision of the Federal Court of

31 January 1990.  However, there is no remedy available under Swiss law

to complain about the undue length of proceedings which have already

been terminated.

      The applicant's complaints cannot therefore be rejected under

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

remedies.

b)    As regards the well-foundedness of the complaint the applicant

submits that the case involved no complex issues and that he did not

contribute to the length.  In his view the period to be considered

under Article 6 para. 1 (Art. 6-1) of the Convention commenced on 23

November 1983 with the search of his premises and ended on 16 February

1990, when he received the judgment of the Federal Court of 31 January

1990.      The Government agree that the period to be examined under Article

6 para. 1 (Art. 6-1) of the Convention commenced on 23 November 1983,

the date when the applicant's premises were searched, but contend that

it ended on 13 April 1989; on this date the decision of the Zurich

Court of Cassation, which decided finally on the applicant's complaints

under Article 10 (Art. 10) of the Convention, was served on the

applicant.

      The Government submit that the only part of this period in

respect of which Article 26 (Art. 26) of the Convention has been

complied with relates to the plea of nullity proceedings before the

Federal Court.  However, this complaint would be manifestly ill-

founded, since the Federal Court decided on 20 September 1988, i.e.

five months after the plea of nullity was filed.  Even if the public

law proceedings were to be considered, the period of nine months

leading to the decision of 31 January 1990 could be considered

reasonable.

      The Commission, having regard to the parties' submissions under

Article 6 para. 1 (Art. 6-1) of the Convention, considers that these

complaints raise serious issues of fact and law which require an

examination of the merits.  This part of the application cannot

therefore be declared manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2.    Under Article 6 para. 1 (Art. 6-1) the applicant complains of a

breach of the principle of equality of arms in that the written reasons

of the District Court judgment are served differently with no date of

receipt being stamped on them, and the time-limits for filing an appeal

are calculated differently.  He also complains that the prosecution is

not obliged to be present at the hearing before the District Court or

the Court of Appeal.

      The Government submit that in this respect the applicant has not

exhausted domestic remedies according to Article 26 (Art. 26) of the

Convention.

a)    The Commission notes that the applicant's public law appeal to

the Federal Court referred to the complaints about the difference in

serving the written reasons of the judgment and in calculating the

time-limits.  In this respect, the applicant complied with the

requirements under Article 26 (Art. 26) of the Convention.

      In examining the substance of the applicant's complaints, the

Commission notes that the time-limit granted to the Public Prosecutor's

Office for filing the appeal ran from the date when the latter received

the written reasons of the judgment, whereas for the applicant it

commenced when judgment was pronounced.  However, in the District Court

proceedings it is the District Attorney's Office which undertakes the

prosecution.  The appeal is introduced by a new party, the Public

Prosecutor's Office, which must acquaint itself with the case.  Thus,

there is an objective justification for this difference.  There is also

no indication of a manipulation to the applicant's disadvantage in the

manner in which receipt was acknowledged when the judgment of 27 June

1984 was served on the District Attorney's Office.  In any event,

according to Section 425 of the Code of Criminal Procedure the accused

may until the end of the appeal hearing join the appeal of the Public

Prosecutor's Office.

      In this respect the application is therefore manifestly ill-

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

Convention.

b)    In so far as the applicant complains that the prosecution is not

obliged to be present at certain hearings, the applicant has not shown

that he obtained a decision of the Federal Court on this complaint.

He has, therefore, not exhausted the domestic remedies available to him

under Swiss law within the meaning of Article 26 (Art. 26) of the

Convention, and this part of the application must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

3.    Under Article 10 (Art. 10) of the Convention the applicant

complains of a breach of his right to freedom of expression in that he

was convicted for showing a film.  The applicant also complains that

the prohibition to show the film on his own premises breached his right

to respect for private life within the meaning of Article 8 (Art. 8)

of the Convention.

a)    According to Article 26 (Art. 26) of the Convention the

Commission may only deal with the matter "within a period of six months

from the date on which the final decision was taken".

      The applicant submits that in his public law appeal he raised the

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

the inequality of arms.  Had the Court upheld his appeal, it would have

established that the Public Prosecutor had belatedly filed his appeal

against the District Court's acquittal which would then have become

final.  The Federal Court's decision of 31 January 1990 must therefore

be considered the final one for the purpose of Article 26 (Art. 26) of

the Convention.

      The Government contest that the applicant complied with the time-

limit in Article 26 (Art. 26) of the Convention.  The Zurich Court of

Cassation was bound by the Federal Court's previous decision of 20

September 1988.  The applicant's public law appeal no longer concerned

Article 10 (Art. 10) of the Convention.  Hence, the applicant should

have brought his application before the Commission against the decision

of the Federal Court of 20 September 1988.  Even if one relied on the

decision of the Zurich Court of Cassation of 3 April 1989, the

application would still have been introduced out of time.

      The Commission observes that on 3 April 1989 the Zurich Court of

Cassation convicted the applicant of publishing obscene material.

Against this decision the applicant filed a public law appeal with the

Federal Court in which he complained inter alia under Article 6

(Art. 6) of the Convention of a breach of the equality of arms in

respect of the filing of an appeal.  On 31 January 1990 the Federal

Court dealt in substance with this complaint and then dismissed it.

      Nevertheless, the Federal Court could have upheld the applicant's

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

quashed the conviction pronounced by the Zurich Court of Cassation.

As the applicant is complaining that his conviction breached Articles

8 and 10 (Art. 8, 10) of the Convention, the public law appeal filed

with the Federal Court must be considered an effective remedy within

the meaning of Article 26 (Art. 26) of the Convention.

      It follows that the period of six months specified in Article 26

(Art. 26) of the Convention must be calculated as from 16 February

1990, i.e. the date on which the decision of the Federal Court of 31

January 1990 was served on the applicant.  The present application was

introduced on 6 August 1990.  The applicant has therefore complied with

the time-limit specified in Article 26 (Art. 26) of the Convention.

b)    As regards the well-foundedness of the complaint the applicant

contends that, contrary to the requirements of Article 10 para. 2

(Art. 10-2) of the Convention, Section 204 is not sufficiently precise

to serve as a legal basis for such a conviction.  Moreover, the latter

was unnecessary, given the fact that only persons who intended to see

the film could do so and young persons were not allowed in.

      The Government submit that the Federal Court, in its decision

of 20 September 1988, examined the conformity of the applicant's

conviction with the requirements of Article 10 (Art. 10) of the

Convention.  This decision was considered sufficiently important to

warrant publication in the official collection of decisions of the

Federal Court (ATF 114 IV 116 et seq.).

      The Commission, having regard to the parties' submissions under

Article 10 (Art. 10) of the Convention, considers that these complaints

raise serious issues of fact and law which require an examination of

the merits.  Moreover, the further complaint under Article 8 (Art. 8)

of the Convention cannot be separated from these serious issues of fact

and law.  This part of the application cannot therefore be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.    In so far as the applicant complains under Articles 8 and 10

(Art. 8, 10) of the Convention of his subsequent convictions of other

offences of selling obscene publications in his shop, the Commission

considers that he has not shown that he obtained a decision of the

Federal Court on these complaints.  He has, therefore, not exhausted

the domestic remedies available to him under Swiss law within the

meaning of Article 26 (Art. 26) of the Convention, and this part of the

application must therefore be rejected under Article 27 para. 3

Art. 27-3).

      For these reasons, the Commission, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the applicant's complaints under Article 6 para. 1 (Art. 6-1) of

      the Convention about the length of the proceedings, and his

      complaints under Articles 8 and 10 (Art. 8, 10) of the Convention

      about his criminal conviction for showing a film; and

      unanimously,

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission                 President of the Commission

       (H.C. KRÜGER)                              (C.A. NØRGAARD)