Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15736/89

by D.

against Switzerland

The European Commission of Human Rights (First Chamber)

sitting in private on 8 July 1991, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

Mr. M. de SALVIA, Secretary to the First Chamber

Having regard to:

- Article 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms;

- the application introduced on 13 December 1989 by D.

against Switzerland and registered on 7 November 1989 under file

No. 15736/89;

- the observations submitted by the respondent Government on

10 June 1991 and the observations in reply submitted by the applicant

on 27 June 1991;

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 Yugoslav citizen born in 1955, resides at

Vinkovci in Yugoslavia. Before the Commission he is represented by

Mr. K. Mäder, a lawyer practising at Zurich in Switzerland.

A. Particular circumstances of the case

On 13 March 1987 the applicant was remanded in custody by the

Zurich District Attorney's Office (Bezirksanwaltschaft) on suspicion

of having committed the offences of fraud, forging documents and

disregarding an expulsion order (Verweisungsbruch). The warrant of

arrest was signed by District Attorney L.

On 3 June 1987 the District Attorney's Office indicted the

applicant before the Zurich District Court (Bezirksgericht) of the

offences concerned. The indictment was signed by the District

Attorney L.

On 26 June 1987 the Zurich District Court convicted the

applicant of the offences of fraud, forging documents and disregarding

an expulsion order and sentenced him to twelve months' imprisonment.

The period spent in detention on remand, amounting to 106 days, was

deducted from the sentence.

Both the applicant and the Public Prosecutor's Office appealed

against this judgment to the Court of Appeal (Obergericht) of the

Canton of Zurich. On 19 January 1988 the Court of Appeal sentenced

the applicant to 15 months' penal servitude and a fine of 1,000.--

SFr. The applicant was also ordered to leave Switzerland for ten

years. The period spent in detention on remand amounting to 313 days

was deducted from the sentence.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) was

dismissed by the Court of Cassation (Kassationsgericht) of the Canton

of Zurich on 13 June 1988. With regard to the applicant's complaint

under Article 5 para. 3 of the Convention as to the Zurich District

Attorney the Court referred to the decision of the European Court of

Human Rights in the Schiesser case (see Eur. Court H.R., judgment of 4

December 1979, Series A no. 34). It considered that the position of

the Zurich District Attorney, in particular his independence, complied

with the requirements of Article 5 para. 3 even if, as in the

applicant's case, the same District Attorney had remanded the

applicant in custody and later indicted him.

The applicant then filed a public law appeal (staatsrechtliche

Beschwerde) which the Federal Court (Bundesgericht) dismissed on 14

March 1989. On the basis of a detailed analysis of the case-law of

the Convention organs, the Court found that for purposes of

determining the independence of the "judge or other officer" mentioned

in Article 5 para. 3 of the Convention it had in first line to rely on

the date when the accused was remanded in custody. The Court

continued (at p. 13 of the judgment):

"If ... according to the usual course of events, one cannot

immediately assume that the District Attorney who orders

detention on remand will later also exercise the function of

the prosecution, he cannot when confirming detention be

declared a party and therefore dependent.

It must be admitted that there is indeed the possibility for

the District Attorney subsequently to prepare the indictment

and possibly to present it - as the present case shows. The

circumstance of the mere possibility, however, cannot be of

decisive importance. For one, this circumstance cannot have

the effect that the independence originally given upon the

moment of arrest can, so to say, subsequently be called in

question and set aside by the parties .... On the other

hand, this circumstance is confirmed precisely by the

decision of the Court in the Schiesser case. Here, too,

there was the possibility of a subsequent indictment by the

District Attorney, as the competence of the Public

Prosecutor's Office was not yet determined at the outset of

the investigation and the arrest respectively; despite this

possibility the Court found no violation of Article 5 para.

3 in the Schiesser case. This circumstance, too, shows that

only the moment of arrest and not of the possible later

activity and of the later indictment can be decisive."

"Kann ... nach dem üblichen Lauf der Dinge nicht ohne

weiteres damit gerechnet werden, dass der die

Untersuchungshaft anordnende Bezirksanwalt in der Folge auch

die Funktion der Strafverfolgung ausübt, so kann dieser im

Zeitpunkt der Haftbestätigung auch nicht als Partei und

damit abhängig bezeichnet werden.

Es ist zwar einzuräumen, dass für den Bezirksanwalt in der

Tat die Möglichkeit besteht, in der Folge auch die Anklage

zu erheben und allenfalls zu vertreten - wie der vorliegende

Fall zeigt. Dem Umstand der blossen Möglichkeit kommt

indessen keine entscheidende Bedeutung zu. Zum einen kann

er nicht bewirken, dass die vorerst im Zeitpunkt der

Verhaftung gegebene Unabhängigkeit von den Parteien

gewissermassen nachträglich in Frage gestellt und beseitigt

würde ... Zum andern wird dies gerade durch die Entscheidung

des Gerichtshofes im Falle Schiesser belegt. Auch hier

bestand an sich die Möglichkeit einer späteren

Anklageerhebung durch den Bezirksanwalt, da die

Zuständigkeit der Staatsanwaltschaft zur Zeit des Beginns

der Untersuchung bzw. der Verhaftung noch nicht feststand;

trotz dieser Möglichkeit aber hat der Gerichtshof im Falle

Schiesser eine Verletzung von Art. 5 Ziff. 3 EMRK verneint.

Auch dieser Umstand zeigt, dass ausschliesslich auf den

Zeitpunkt der Verhaftung, und nicht auf die nur mögliche

spätere Tätigkeit und spätere Anklageerhebung abgestellt

werden kann."

B. Relevant domestic law and practice

According to S. 32 of the Judiciary Act (Gerichtsverfassungs-

gesetz, GVG) of the Canton of Zurich of 1976 the District Court

examines as a criminal court all matters not falling within the

jurisdiction of another court. S. 44 and 57 GVG state the various

offences which the Court of Appeal and the Jury Court, respectively,

are competent to deal with; they do not include the charges brought

against the applicant.

S. 72 GVG provides that the District Attorney's Office acts as

the indicting authority (Anklagebehörde) at the level of the District

Court, and the Public Prosecutor's Office before the Court of Appeal

and the Jury Court. S. 73 GVG states that the investigation of

offences is conducted by the District Attorney's Office and the Public

Prosecutor's Office. In practice, most investigations are carried out

by the District Attorney. As a rule, District Attorneys are elected

for office by the people for four years (S. 86 para. 2 GVG).

S. 55 of the Code of Criminal Procedure (Strafprozessordnung,

StPO) of the Canton of Zurich of 1919 authorises the District

Attorney to issue a warrant of arrest. Against the latter an appeal

may be filed. S. 64 StPO obliges the District Attorney to hear an

arrested suspect within twenty-four hours. According to S. 65 StPO,

the suspect must thereby be clearly informed of the reasons prompting

the suspicion held against him and must be given the opportunity to

invalidate these reasons. S. 31 StPO generally obliges the

investigating officer to consider exculpating and inculpating

circumstances with equal care.

Detention on remand ordered by the District Attorney may not

exceed 14 days, except if continuation is ordered by the President of

the District Court or of the Prosecuting Chamber (Anklagekammer) of

the Court of Appeal, depending on the jurisdiction of the respective

Court (S. 51 StPO).

Once the investigation has been closed and the District

Attorney's Office does not intend to prosecute the accused, the

investigation is discontinued (S. 39 StPO). Otherwise, the indicting

authority, i.e. the District Attorney's Office or the Public

Prosecutor's Office, commences the main proceedings (Hauptverfahren)

by submitting the bill of indictment (S. 161 StP0). The President of

the District Court or of the Prosecuting Chamber of the Court of the

District Court of Appeal will then decide whether or not to admit the

bill of indictment (S. 165 STPO).

S. 178 StPO states:

"The indicting authority is a party to the main

proceedings. It has as such all the rights and duties of a

party.

In his statement the indicting officer should not

one-sidedly confine himself to stressing items that tell

against the accused, but should also take into account items

in his favour."

"Die Anklagebehörde ist im Hauptverfahren Prozesspartei.

Sie hat alle einer solchen zustehenden Rechte and Pflichten.

Der Ankläger soll bei seinen Vorträgen nicht einseitig nur

dasjenige hervorheben, was den Angeschuldigten beschweren

kann, sondern auch das berücksichtigen, was zu seinen

Gunsten spricht."

The District Attorney remains under the control of the Public

Prosecutor's Office (S. 86 GVG), and the latter is authorised to

issue directives to him (S. 27 StPO). In practice District Attorneys

receive no special orders or instructions from the Public

Prosecutor's Office concerning their powers of placing individuals in

detention.

Apart from the power to order arrest and detention and to

interrogate the arrested suspect, the District Attorney has the power

to issue a summons order (Strafbefehl) if the accused has confessed

and admitted his guilt, and if a fine (Busse) or prison sentence of a

maximum of one month is considered to be adequate (S. 317 StPO).

After conviction, S. 419 StPO allows an appeal to the Court

of Appeal in which complaints may be raised alleging defects (Mängel)

both of the investigation and of the procedure (Verfahren) and the

decision of the first instance court.

COMPLAINTS

The applicant complains that, contrary to Article 5 para. 3

of the Convention, the same District Attorney first decided on the

applicant's detention and later indicted him. Thus the District

Attorney could not be regarded as having been independent as required

by that provision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 September 1989 and

registered on 7 November 1989.

On 7 January 1991 the Commission decided that notice of the

application should be given to the respondent Government and that the

parties should be invited to submit until 22 March 1991 written

observations on the admissibility and merits of the application.

On 26 February 1991 the Commission decided to refer the

application to the First Chamber.

Following the Government's request of 4 February 1991 to

adjourn the proceedings, the President of the Commission decided to

prolong the time-limit for submitting the observations on the

admissibility and merits of the application until 1 May 1991.

Following a further request of the Government of 22 April 1991, the

Commission (First Chamber) decided on 28 May 1991 to invite the

Government to submit their observations until 19 June 1991.

The Government's observations were submitted on 10 June 1991

and the applicant's observations in reply on 27 June 1991.

THE LAW

The applicant complains that, contrary to Article 5 para. 3

(Art. 5-3) of the Convention, the same District Attorney first decided

on his detention and later indicted him. Thus the District Attorney

could not be regarded as having been independent as required by that

provision.

In the light of the principles laid down in the Huber case

(Eur. Court H.R., judgment of 23 October 1990, Series A No. 188) the

Government do not contest the admissibility of the application in that

the same District Attorney first decided on the applicant's detention

and later indicted him.

The Commission finds that the application is not manifestly

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

Convention. As no other ground for declaring it inadmissible has

been established the application is admissible.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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D. v. SWITZERLAND

D. v. SWITZERLAND

LEXI