Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13627/88

by H.F.

against Switzerland

The European Commission of Human Rights sitting in private

on 6 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 24 November 1986

by H.F. against Switzerland and registered on 24 February 1988 under

file No. 13627/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

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 German citizen born in 1922, is a car

mechanic residing in Lingen/Ems in the Federal Republic of Germany.

On 17 August 1985 the applicant was arrested in Frutigen in

Canton Bern on suspicion of fraud, and remanded in custody.

On 3 February 1986 judge Sch., the investigating judge of the

Frutigen District committed the applicant for trial before the

Frutigen District Court for criminal matters (Strafamtsgericht) in

respect of 55 instances of professional fraud or attempts thereto,

amounting to a total of 25,265.- SFr, and nine instances of theft,

amounting to a total of 12,539.- SFr.

The instances of fraud referred to were perpetrated between

1979 and 1985 and concerned inter alia various nights spent in

different hotels, the renting of various holiday apartments, clothing,

sport equipment, electrical appliances such as televisions,

tape-recorders and typewriters, a roll of plastic bags, food and

petrol. The instances of theft concerned inter alia electrical

equipment, household appliances, bed linen, clothing, a hotel

handtowel, and three bottles of wine.

The trial took place on 18 March 1986 before the Frutigen

District Court. Judge Sch. now presided over the trial court. The

applicant pleaded not guilty in respect of only four instances of

fraud and theft.

On the same day the applicant was convicted of 55 instances of

fraud and eight instances of theft. He was further convicted of

having entered Switzerland despite a prohibition of entry and of not

having had his driving licence with him when driving a car. He was

acquitted of one count of theft and of not having filled in an arrival

form at an hotel. The applicant was sentenced to two and a half years'

imprisonment and a fine of 200.-SFr. He was prohibited from entering

Switzerland for the rest of his life, and ordered to pay the costs of

the procedure amounting to 6,017.95.-SFr.

The applicant's appeal against this judgment, in which he

complained inter alia that the same person had acted as investigating

judge and trial judge, was dismissed by the Bern Court of Appeal

(Obergericht) on 10 July 1986. The Court was presided over by judge W.

The Court of Appeal held that the judgment of the Frutigen

District Court had obtained legal force to the extent that the

applicant had been convicted of 52 instances of fraud and eight

instances of theft, as in respect of these charges he had not claimed

his acquittal at first instance. The Court then confirmed the

applicant's conviction of three additional instances of fraud, of

entering Switzerland despite a prohibition and of driving a car

without carrying a driving licence. The sentence remained the same as

that determined by the Frutigen District Court on 18 March 1986,

though the applicant was further ordered to pay the costs of the

appeal proceedings of 780.- SFr.

The applicant was transferred to the Thorberg Prison for

convicted offenders.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) and a plea of nullity (Nichtigkeitsbeschwerde) which were

dismissed by the Federal Court (Bundesgericht) on 23 September 1986 as

being either inadmissible or unfounded.

On 9 November 1986 the applicant again filed a public law

appeal which the Federal Court upheld on 9 January 1987, quashing the

decision of the Court of Appeal. The Court saw a violation, inter alia,

of Article 6 para. 1 of the Convention in that, in the criminal

proceedings instituted against the applicant, the same person had acted

as investigating judge and trial judge. As a result, the Federal

Court quashed the decision of the Bern Court of Appeal of 10 July

1986. The applicant then filed a request to be released from

detention on remand.

By announcement of 27 January 1987 judge W. of the Bern Court

of Appeal informed the applicant that an appeal hearing was fixed for

5 February 1987 though it would be limited to the issue of setting

aside the first instance decision insofar as the latter had not

obtained legal force.

Also on 27 January 1987, judge W. dismissed the applicant's

request to be released from detention on remand on the ground that the

first instance court, when again fixing the sentence, would have to

assume that the applicant had been convicted with legal force of 52

instances of fraud and eight instances of theft.

On 28 January 1987 judge W. issued a correction (Berichtigung)

of his decision of 27 January 1987, stating that it had been

overlooked that in fact the entire first instance decision was at

issue, and it could not therefore be said that the conviction for

various offences had obtained legal force.

However, judge W. maintained his decision to continue to

remand the applicant in custody. He stated that there were serious

indications that the applicant had committed the offences since in the

first instance proceedings the applicant had only requested acquittal

in respect of a few charges. There was a danger of absconding in that

the applicant did not have a place of residence in Switzerland. Judge W.

concluded that the length of the new prison sentence to be imposed

would not be prejudiced by the applicant's continuing detention on

remand.

The applicant was thereafter transferred from Thorberg prison

to the Bern District prison.

On 5 February 1987 the Bern Court of Appeal, with judge W.

presiding, decided on the basis of the Federal Court's decision of

9 January 1987 to set aside the Frutigen District Court's decision of

18 March 1986, insofar as it did not acquit the applicant, and to

refer the case for retrial to the Niedersimmental District Court for

criminal matters.

In a separate part of this decision the Court of Appeal

further dismissed the applicant's request to be released from

detention on remand on the ground that there was an urgent suspicion

that he had committed the offences in view of the fact that before the

Frutigen District Court he had requested acquittal only in respect of

a few charges. Moreover, the Court of Appeal found that there was

danger of absconding in as much as the applicant did not have his

residence in Switzerland. The Court regarded as unconvincing the

applicant's submission that he had previously during his imprisonment

worked externally without having absconded.

Also on 5 February 1987 the Court of Appeal dismissed the

applicant's challenge of judge W. who, after the Federal Court's

decision of 9 January 1987, had continued to sit on the case. The

Court of Appeal found that judge W., when deciding to set aside the

decision of 18 March 1986 of the Frutigen District Court, had not

determined the merits of the case.

Against these decisions the applicant filed a public law appeal

with the Federal Court.

Proceedings were then resumed before the Niedersimmental

District Court. A hearing was fixed for 7 May 1987.

On 16 March 1987 the Federal Court dismissed the applicant's

public law appeal. The Court found in particular that partiality

could not be established merely on the basis that the Court of Appeal

judge again sat on the case after the Federal Court had given its

decision on 9 January 1987. The Court also saw no issue in the fact

that on 27 January 1987 judge W. had extended the applicant's

detention on remand.

With regard to the length of the applicant's detention on

remand, the Federal Court noted the Court of Appeal's conclusion that

there was a serious suspicion that the applicant had committed the

offences at issue and that there existed a danger of absconding.

However, in the Court's opinion an issue arose whether the 629 days of

detention on remand as of 7 May 1987, i.e. the new date fixed for the

trial hearing, exceeded the maximum permissible length, as compared

with the possible length of sentence. The decision of the Federal

Court continues:

"Die lange Haftdauer fällt nicht dem Beschwerdeführer

zur Last; er hat das Verfahren nicht erschwert. Indessen

trifft auch die Behörden des Kantons Bern kein Vorwurf;

vielmehr ist die überdurchschnittlich lange Prozess- und

Haftdauer auf die vorstehend dargelegten Umstände

(Praxisänderung des Bundesgerichtes in Befolgung einer neuen

Auslegung der EMRK durch die Konventionsorgane)

zurückzuführen. Unter solchen Umständen ist einzig noch zu

prüfen, ob die Haftdauer, objektiv betrachtet, das Mass des

Zulässigen nicht übersteige ...

Die bisher erstandenen und bis zur erstinstanzlichen

Hauptverhandlung noch zu erstehenden insgesamt 629 Tage

Untersuchungshaft ... erreichen ... noch nicht eine

Dauer, bei der konkret die Gefahr bestünde, der Sachrichter

lasse sich dadurch von der Ausfällung einer sonst allenfalls

in Betracht zu ziehenden milderen Strafe abhalten."

"The lengthy period of detention on remand is not the

responsibility of the applicant; he has not hindered the

proceedings. Nevertheless, the authorities of Canton Bern

can also not be reproached; rather, the extraordinary length

of the proceedings and of detention on remand was caused by

the above mentioned circumstances (change of case-law of the

Federal Court in complying with a new interpretation by the

Convention organs of the Convention). Under such

circumstances it need only be examined whether the length of

detention, objectively seen, has exceeded the permissible

duration. ...

The altogether 629 days length of detention on

remand which have so far been, or will until the trial

hearing be, undergone ... do not yet amount to a duration in

respect of which there would exist a concrete danger that the trial

judge would let himself be influenced by it in respect of a possibly

more lenient sentence ..."

Meanwhile, the applicant filed a renewed request for release

from detention on remand which was dismissed on 24 March 1987 by the

President of the Niedersimmental District Court who referred in his

reasoning to the grounds mentioned by the Federal Court on 16 March 1987.

On 21 April 1987 the Federal Court rejected the applicant's

request for reopening of the proceedings leading to its decision of

16 March 1987.

The new trial commenced on 7 May 1987, though it was

suspended on the same day and a new date envisaged for the end of

June 1987.

On 13 May 1987 the President of the Niedersimmental District

Court decided to release the applicant from detention on remand. The

applicant was then brought to the border and expelled from

Switzerland.

On 3 July 1987 the applicant was convicted by the

Niedersimmental District Court in absentia and sentenced to 28 months'

imprisonment.

COMPLAINTS

The applicant complains that the same person, judge Sch.,

acted in his case both as investigating judge and trial judge, and

that this was upheld by the Court of Appeal. Moreover, judge W.

prolonged the applicant's detention on remand on 27 and 28 January 1987

and participated in the decision of 5 February 1987 although he had

been involved in the previous appeal proceedings leading to the Court

of Appeal's decision of 10 July 1986. Furthermore, on 5 February 1987

the Court of Appeal only set aside part of the first instance

judgment.

The applicant further complains that, while the Federal Court

gave its decision on 9 January 1987, the Court of Appeal only quashed

the first instance judgment on 5 February 1987, thus obliging him in

the meantime to be detained as a convicted offender with the

obligation to work. He further complains of the length of detention

on remand lasting 636 days. Finally, he alleges that the

Niedersimmental District Court had no jurisdiction to try him.

The applicant relies on Articles 5 and 6 of the Convention.

THE LAW

1. The applicant complains that judge Sch. acted both as

investigating judge and trial judge. Later, judge W. participated in

the decision of the Court of Appeal of 5 February 1987 which set aside

the first instance decision, although he had already participated in

the decision of the Court of Appeal of 10 July 1986. Finally, not the

entire first instance decision was set aside.

The Commission notes that in its decision of 5 February 1987

the Bern Court of Appeal only did not set aside the judgment of the

Frutigen District Court of 18 March 1986 only to the extent that the

applicant had been acquitted. Insofar as the Frutigen District Court

had convicted the applicant, the Court of Appeal set aside that

decision and referred the case for retrial to another court.

In these circumstances the applicant can no longer claim to be

a victim of the alleged violations of the Convention within the

meaning of Article 25 (Art. 25) of the Convention. It follows that in this

respect the application is manifestly ill-founded within the meaning

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

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

Convention that the Niedersimmental District Court had no jurisdiction

to try him.

However, the Commission is not required to decide whether or

not the complaints alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the Convention,

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

according to the generally recognised rules of international law.

In the present case the applicant has not shown that he

obtained by means of a public law appeal a decision of the Federal

Court on this complaint and has therefore not shown that he exhausted

the remedies available to him under Swiss law. Moreover, his

complaints do not disclose the existence of any special circumstances

which might have absolved him, according to the generally recognised

rules of international law, from exhausting the domestic remedies at

his disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this part of

the application must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

3. The applicant also complains of the length of his detention on

remand. He relies on Article 5 para. 3 (Art. 5-3) of the Convention which

states:

"3. Everyone arrested or detained in accordance with

the provisions of paragraph 1(c) of this Article shall be

brought promptly before a judge or other officer authorised

by law to exercise judicial power and shall be entitled to

trial within a reasonable time or to release pending trial.

Release may be conditioned by guarantees to appear for

trial."

The period to be considered under Article 5 para. 3 (Art. 5-3)

of the Convention commences with the applicant's arrest and

detention. It ends with the day on which the charge is determined by

a court of first instance. Thereafter the person is in a position

provided for by Article 5 para. 1 (a) (Art. 5-1-a) of the Convention

which authorises deprivation of liberty "after conviction" (see Eur.

Court H.R., Wemhoff judgment of 27 June 1968, Series A no. 7, pp.

23-24 para. 9).

The present applicant was arrested on 17 August 1985. The

judgment of the Frutigen District Court was given on 18 March 1986,

i.e. after seven months and one day. Subsequently, after the Federal

Court had given its decision on 9 January 1987, the Bern Court of Appeal

quashed on 5 February 1987 the decision of the Frutigen District

Court. Thus, as from this last mentioned date a further three months

and eight days lapsed until the applicant was released from detention

on 13 May 1987.

The total period to be considered under Article 5 para. 3

(Art. 5-3) of the Convention is therefore 10 months and 9 days.

According to the Convention organs' case-law, in determining

whether in a given case the detention of an accused person exceeds a

reasonable limit, it is for the national judicial authorities to seek

all the facts arguing for or against the existence of a genuine

requirement of public interest justifying a departure from the rule of

respect for individual liberty. Moreover, even if the grounds cited

by the national judicial authorities are pertinent, this does not

exempt them from their obligation under the Convention if they

themselves are seen to have prolonged the detention unreasonably (see

the Wemhoff judgment, ibid. p. 21 et seq. paras. 1 et seq.).

In the present case the Swiss authorities referred to the

urgent suspicion that the applicant had committed the offences at

issue as well as to a danger of absconding in view of the fact that he

had no place of residence in Switzerland. In its decision of 16 March 1987

the Federal Court explained the duration as resulting from the fact

that the applicant's public law appeal had been successful in that the

Federal Court had changed its case-law concerning the role under

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

judge in trial proceedings.

Furthermore, the Commission finds that the case in question

concerned over 60 charges relating to completed or attempted fraud

and theft. The charges related to damages of altogether 37,804.- SFr

allegedly caused between 1979 and 1985 on many occasions in various

towns in Switzerland. In the Commission's opinion the case could

therefore be regarded as complex.

It remains to be considered whether the Swiss authorities

displayed the diligence required by the Convention in the case of a

detained person. In this respect, the applicant has not alleged that

during any particular time there were undue delays on the part of the

authorities conducting the proceedings. The Commission notes here the

following.

After the applicant had been remanded in custody on 17 August

1985 he was committed for trial after approximately five and a half

months on 3 February 1986. The trial took place six weeks later on

18 March 1986 on which day the applicant was convicted. When the

proceedings were resumed before the Niedersimmental District Court on

5 February 1987 a hearing was fixed three months later for 7 May 1987.

When on that date the trial had to be postponed the applicant was

released six days later on 13 May 1987.

Moreover, in its decision of 16 March 1987 the Federal Court

carefully reviewed the necessity for the continuation of the

applicant's detention on remand and concluded that detention would not

yet exceed the permissible length if the trial hearing was held on

7 May 1987. In this respect the Commission notes that, when the

trial was postponed on that date, the applicant was released shortly

thereafter.

The Commission considers therefore that the Swiss authorities

persistently pursued the investigations in a complex case and did not

unreasonably prolong the detention. As a result, the period of the

applicant's detention on remand did not exceed what can be considered

reasonable within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention.

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.

4. The applicant complains under Articles 5 and 6 (Art. 5, 6) of the

Convention that judge W. lacked impartiality when he decided to

prolong the applicant's detention on remand on 27 and 28 January 1987

and, as presiding judge of the Court of Appeal, on 5 February 1987,

although he had previously presided over the Court of Appeal when it

decided on 10 July 1986 on his appeal.

Insofar as the applicant may be understood as complaining

under Article 5 (Art. 5) of the Convention, the Commission notes that

according to its above-mentioned case-law the applicant was at this

stage detained "following conviction" within the meaning of Article 5

para. 1 (a) (Art. 5-1-a), and that the court under Article 5 para. 4

(Art. 5-4) does not have to review the correctness of a criminal

conviction under Article 5 para. 1 (a) (Art. 5-1-a) (see Caprino v.

the United Kingdom, Comm. Report 17.7.80, D.R. 22 p. 13, para. 66).

In this respect the application is manifestly ill-founded

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

Insofar as the applicant may be understood as complaining

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

notes that the prolongation of the applicant's detention on remand

does not amount to a "determination ... of any criminal charge"

against the applicant within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

This part of the application must therefore be rejected as

being incompatible ratione materiae with the provisions of the Convention

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

5. The applicant complains under Articles 5 and 6 (Art. 5, 6) of the

Convention that after the Federal Court had given its decision on

9 January 1987 the Court of Appeal set aside the first instance judgment

only on 5 February 1987, thus obliging him in the meantime to be

detained as a convicted offender with the obligation to work. However

the Commission finds no issue under these provisions. It follows that

this last part of the application is also manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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F. v. SWITZERLAND

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