SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28256/95 by M. B. against Switzerland

The European Court of Human Rights (Second Section) , sitting on 25 May 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr L. Wildhaber Mr G. Bonello, Mrs V. Strážnická, Mr M. Fischbach, Mrs M. Tsatsa-Nikolovska, Mr A.B. Baka, judges , and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 22 May 1995 and registered on 18 August 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1945, is a delegate of the International Committee of the Red Cross residing at Losone in Switzerland.  Before the Court she is represented by Mr M. Bosonnet , a lawyer practising in Zürich .

The facts of the case, as submitted by the parties, may be summarised as follows.

On 19 September 1994 the Federal Attorney ( Bundesanwältin ) issued a warrant of arrest against the applicant on the following grounds:

“repeated assassination ( ripetuto assassinio ), committed as a member of the terrorist group ‘Carlos’ and repeated participation in the preparation and implementation of the following attacks ( attentati ):

- attack at the French Embassy and the Cultural Centre in Beirut on 15.3.82

- explosives attack on the train Paris-Toulouse on 29 March 1982 (five deaths and                                        28 wounded)

- assassination of Mr and Mrs C., the French Ambassador and his wife, in Beirut on                                        15 April 1982

- bomb attack against the French Embassy and the Air France representation in Vienna                           on 19.04.1982.

Applicable norms : Articles 112 and 68 of the Code of Criminal Procedure.

Grounds of arrest :  Danger of collusion, also of fleeing, given the seriousness of the offences committed.”

On the same day, 19 September 1994, the applicant was arrested in Locarno in Switzerland and remanded in custody.  She confirmed in writing having been informed of the content of the warrant of arrest.  Her residence was searched and a number of objects were seised , such as documents and bank notes in different currencies.

On 20 September 1994 the applicant was transported to Bern where she arrived at 10h00.  At 14h40 she was questioned by police officers of the Federal Attorney’s office ( Bundesanwaltschaft ).  During the interview she stated that she did not wish to make any comments, though she announced that she would be willing to tell the Federal Attorney about her relations with the Carlos-group.  On the same day at 17h15 the applicant was questioned by the Federal Attorney who referred to documents of the state security organs ( Stasi ) of former Eastern Germany.  The applicant confirmed her codename “Sally”, and that she had frequently been in Berlin and in Budapest, though only after the bomb attacks in Vienna.

On 21 September 1994, an investigating judge of the Canton of Bern confirmed the imposition of detention on remand on the applicant.  The decision noted that the suspicion was based on files of the East German State security authorities and the Hungarian intelligence service, and that the applicant herself admitted having been a member of the Carlos group.  In view of this membership, there was an urgent suspicion that she had participated in the various events.  Furthermore, there existed a danger of collusion and of absconding.  Thus, additional investigations were necessary.  Moreover, the applicant, a delegate of the International Committee of the Red Cross, was frequently abroad and had no permanent residence in Switzerland.

The investigations were then conducted by the Federal Attorney's office.

On 28 September 1994 the applicant requested to consult the case-file.  In reply, the Federal Attorney's office on 4 October 1994 sent her copies of her warrant of arrest and of the minutes when she was questioned by the Federal Attorney and the police officers on 20 September, and when she was heard by the investigating judge.

On 5 October 1994 the applicant was heard by the Federal Attorney’s office.  As from this date, she refused to comment on the charges laid against her.

On 21 October 1994 the applicant filed a request with the Federal Attorney for release from detention.  She submitted that she had withdrawn her statement that she belonged to the Carlos group, and that it did not transpire from the documents referred to by the investigating judge on 21 September 1992 that she had been a member of this group.  There were furthermore no documents which indicated that the applicant had committed a criminal offence.  A danger of collusion and of absconding could be excluded.  The request was received by the Federal Attorney on 24 October 1994.

On 25 October 1994 the Federal Attorney dismissed the applicant's request.  The decision, numbering three pages, was served on the applicant on 26 October.  According to the decision, the applicant was suspected of having participated, as a member of the Carlos terrorist group, in bomb attacks in 1982 of French embassies in Beirut and Vienna and of a train in France.  She was also suspected of having murdered a diplomat couple in Beirut in 1982.  These bomb attacks had occurred after two members of the Carlos group had been arrested in France.  The Carlos group transmitted a letter to the French Government, threatening to commit the attacks if the two members were not released.  The applicant was suspected of having deposited this letter at the French Embassy in The Hague.  After the time-limit mentioned in the letter had elapsed, the attacks were committed.

The decision referred to various statements of the applicant as to her involvement with the Carlos group and to the documents of the East German State security authorities which showed that the applicant was an important supporter of the group and that she had transmitted in 1982 the letter to the French Embassy in The Hague.  In view of further investigations, in particular the questioning of witnesses in Berlin and Paris, the applicant's continuing detention was required.

On 26 October 1994 the applicant was questioned by the Federal Attorney’s office.

On 27 October 1994 the applicant requested to consult the entire case-file.  The Federal Attorney's office refused the request on the same day, inter alia , in view of a danger of collusion.

On Monday, 31 October 1994 the applicant filed a complaint ( Beschwerde ) against the decisions of 25 and 27 October 1994 with the Indictment Chamber ( Anklagekammer ) of the Federal Court ( Bundesgericht ), invoking Articles 5 §§ 1, 2 and 4 of the Convention and requesting release from detention and consultation of the entire case-file.  The complaint was received by the Federal Court on 1 November 1994.

On the same day, 1 November 1994, the President of the Indictment Chamber transmitted a copy of the complaint to the Federal Attorney who was requested to submit her observations before 7 November 1994.  The Federal Attorney was further requested to send a copy of her observations directly to the applicant who, in turn, was requested to submit any observations by 11 November 1994.

On 1, 5 and 7 November 1994 the Federal Attorney’s office questioned the applicant.

On 7 November 1994 the Federal Attorney filed her observations, numbering six pages, which were received by the Federal Court on 8 November.  The observations were accompanied by all documents of the case, though it was stated “not for consultation by the defence”.  In her observations the Federal Attorney pointed out, inter alia , that the applicant, when accusations had been raised against her during her questioning, had always been able to read the respective incriminating documents.

The applicant filed her observations in reply, numbering six pages, on 11 November 1994.

On 21 November 1994 the Federal Attorney's office informed the applicant of a list of minutes when she had been questioned and heard between September and November 1994.  The list could be consulted by her lawyer on the premises of the Federal Attorney’s office.

On 23 November 1994 the Indictment Chamber of the Federal Court dismissed the applicant's request.  The decision, numbering 11 pages, was served on the applicant on 24 November 1994.

In respect of the applicant's complaint that she could not consult the entire case-file, the Indictment Chamber found that the applicant had had knowledge of the essential documents ( wesentliche Akten ).  Moreover, she did not dispute the Federal Attorney’s observations of 7 November 1994 according to which the applicant had been able to read all incriminating documents when questioned.  Thus, on 5 October 1994 she had been informed of the accusation that she had transmitted the letter to The Hague.  She had further been shown a report of the East German State security authorities according to which, as a member of the Carlos group, she had had the name “Lucy”.  On 26 October and 1, 5 and 7 November 1994 she had been shown further documents from which it transpired that she had transmitted the letter at issue.  On the whole, the applicant had had sufficient knowledge of the case-file to be able to defend herself against the Federal Attorney’s refusal to release her from detention and to substantiate her complaint to the Federal Court.

The Indictment Chamber of the Federal Court further confirmed the suspicion that the applicant had committed the offences at issue, particularly as she herself had originally admitted membership in the Carlos group.  The applicant had not withdrawn her statements, she had merely refused to speak to the authorities.  The Indictment Chamber also assumed a danger of absconding and of collusion.

On 7 December 1994 the applicant filed a further request for release which was granted by the Federal Attorney's Office in a decision dated 13 December 1994.  The decision stated that the original suspicion directed against the applicant had not been reinforced ( erhärtet ).

COMPLAINTS

1. Under Article 5 §§ 2 and 4 of the Convention the applicant complains that she was not duly informed of the grounds of her detention and the accusations against her.  In particular, she was not granted sufficient access to the case-file.  For instance, she had not been shown the documents of the East German State security authorities when replying on 11 November 1994 to the observations of the Federal Attorney's Office.

The applicant submits that it did not transpire from any of the documents shown to her that there was a serious suspicion that she had participated in the attacks mentioned.  She was only suspected of belonging to the Carlos group and of having transmitted the letter to the French Embassy in The Hague.  She was equally not shown any documents in her favour.  By limiting her access to the case-file she was deprived of the possibility of contesting her detention.  There had been no equality of arms between the applicant and the Federal Attorney's office.

2. The applicant complains that her request for release was not decided speedily within the meaning of Article 5 § 4 of the Convention.  Thus, her request was decided by the Federal Court as the sole judicial instance only after 33 days.

3. Under Article 13 of the Convention the applicant complains that there had been no effective remedy at her disposal to complain of a decision of the Indictment Chamber of the Federal Court.

THE LAW

1. The applicant complains under Article 5 §§ 2 and 4 of the Convention that she was not duly informed of the grounds of her detention and the accusations against her.  In particular, she was not granted sufficient access to the case-file.  As a result, there was no equality of arms between her and the Federal Attorney’s office.  Article 5 §§ 2 and 4 reads:

“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government submit that the applicant obtained the required information upon her arrest on 19 September and then again by the Federal Attorney on 20 September 1994 at 17h15.  She was, therefore, informed “promptly” within the meaning of Article 5 § 2 of the Convention.

Moreover, the Government do not contest that, in the proceedings before the Federal Attorney, the applicant and her lawyer did not have full access to the Federal Attorney’s file.  This transpires from the Federal Attorney’s observations of 7 November 1994 where it was expressly stated that the case-file was not to be consulted by the defence.  The Federal Court confirmed in its decision of 23 November 1994 that the applicant had not been able to consult the entire file.  However, such limited consultation of the case-file does not automatically breach the rights under Article 5 § 4 of the Convention.  In the present case, certain documents, concerning terrorism, were confidential, and the Federal Court was called upon to protect the sources of the information obtained.

The Government contend that in fact the applicant was able to defend herself in the proceedings before the Federal Court against the refusal of the Federal Attorney to release her from detention.  She was aware of all the essential elements which could have decisively influenced the question whether or not to maintain her detention on remand.  The principle of equality of arms was complied with, since the Federal Court, which was in possession of the Federal Attorney’s entire case-file, only relied on documents which were also known to the applicant.  Precisely because the applicant had not had access to confidential documents and the Federal Court had assured their confidentiality, it also cannot be assumed that the Federal Attorney withheld certain documents from the Federal Court.

The applicant replies that the Indictment Chamber was not in a position to decide which files were, or were not, relevant for the applicant, since it did not know which arguments the defence would present with respect to the documents withheld.  It is not disputed that the Federal Attorney wished to keep certain documents confidential; however, they should not then be transmitted to the court reviewing the detention.  Yet if the Federal Attorney issued a statement to the court concerning the legality of detention, then the other side had to be given the right to comment thereupon.  Otherwise, the applicant would have no possibility to refute incriminating evidence or to examine exonerating evidence in secret files.  It cannot therefore be said that the applicant could defend herself properly.  In any event, if the Federal Court only examined those files of which the applicant was aware, then why did the Federal Attorney transmit other files to the Federal Court?

In the applicant’s submissions, if it is said that she had at least been aware of the essential elements of the case-file, this remains a mere claim which the Government are not able to prove.  The information disclosed to the applicant did not indicate what it was that led the investigating authorities to conclude that a grave suspicion existed with regard to the attacks mentioned in the warrant of arrest.  If it is alleged that the applicant delivered a threatening letter to the French Embassy in The Hague, this does not in itself say anything about the perpetrators of any attacks that subsequently took place.  Finally, since the Federal Court’s decision of 23 November 1994 is as such disputed, it cannot be adduced to establish compliance with Article 5 § 4 of the Convention.

According to the Convention organs’ case-law, the right to an adversarial trial in a criminal case means that both prosecution and defence must be given the opportunity to have knowledge of and comment upon the observations filed and the evidence adduced by the other party.  It should be insured that the other party will be aware that observations have been filed and will get a real opportunity to comment thereupon (see the Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29).

The Court notes that upon her arrest on 19 September 1994, the applicant was shown the warrant of arrest which listed the main charges brought against her.

Subsequently, when the applicant was questioned by the Federal Attorney’s office and accusations were brought against her, it transpires from the observations of the Federal Attorney of 7 November 1994 that she was shown and able to read the respective incriminating documents.  As the Indictment Chamber later confirmed in its decision of 23 November 1994, this was not contested by the applicant in her reply of 11 November 1994.  The applicant has furthermore not demonstrated that, in addition, there were further documents the non-communication of which would have prevented her from challenging the lawfulness of her detention.

The Court concludes that an examination of this part of the application does not disclose that the applicant had not sufficiently been informed of the essential legal and factual grounds for her arrest, thereby preventing her from questioning the lawfulness of her detention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

2. The applicant complains that her request for release was decided only after 33 days, and therefore not speedily within the meaning of Article 5 § 4 of the Convention.

The Government submit that the duration of the proceedings complied with the requirements under Article 5 § 4 of the Convention.  The proceedings lasted from 24 October until 24 November 1994, though the five days from 26 to 31 October, which the applicant let pass by, must be deducted.  As a result, the period to be examined under Article 5 § 4 of the Convention, lasted 26 days.  The proceedings could not have been conducted within a shorter time-limit.  To begin with, Swiss law provides for the decision of an administrative authority preceding the judicial examination of detention.  Moreover, the accused has an absolute right to reply, regardless of whether use is made of this right.  Such a right necessarily prolongs the proceedings, though in the present case the Federal Court kept the time-limit to the strict minimum of three days.

The Government further point out that at that stage investigations were still going on and the Federal Court had no knowledge of the case-file before the applicant filed her complaint on 31 October 1994.  The Federal Court also had to consider the applicant’s request for release from detention.  Matters were complicated by the fact that on 21 October 1994 an additional complaint was filed by another applicant whose Application no. 27426/95 is currently pending before the Court.  Both cases raised to a large extent the same issues, and parallel proceedings were, therefore, conducted.  The present case was decided two days after the other one.  Finally, the applicant was served the reasons of the Federal Court’s decision, numbering 11 pages, the day after the decision was given.

The applicant replies that the period to be examined under Article 5 § 4 of the Convention commenced on 21 October 1994.  Moreover, the period of five days after 26 October 1994 cannot be deducted from the total length, since the applicant’s lawyer, upon receiving a copy of the Federal Attorney’s decision, promptly filed her complaint on Monday, 31 October.  The period ended on 23 November 1994, when the Federal Court gave its decision, rather than 24 November as submitted by the Government.

In the applicant’s opinion, the administrative proceedings preceding the decision of the Federal Court do not conflict with the requirements of Article 5 § 4 of the Convention.  However, such two-stage proceedings must not lead to an excessive prolongation of the proceedings.  On the other hand, it cannot be said that the issue of the applicant’s release from detention was complex; indeed, the Federal Court was able to reply to her request for release in a brief and simple response on 23 November 1994.  If the Federal Court was faced with a second complaint concerning consultation of the case-file, the two issues could have been dealt with separately.  In any event, as the Government themselves point out, the two cases raised more or less the same issues.

Having noted the arguments of the parties in relation to the complaint, the Court considers that this part of the application raises complex issues of law and fact under the Convention which should be determined by an examination of the merits.  This part of the application cannot, therefore, be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other grounds for declaring it inadmissible have been established.

3. Under Article 13 of the Convention the applicant complains that there is no effective remedy to complain of a decision of the Indictment Chamber of the Federal Court.

Article 13 of the Convention states:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that, as regards legal remedies in matters of detention, Article 5 § 4 is the lex specialis and Article 13 the lex generalis .  It is therefore sufficient to examine the present case from the angle of Article 5 § 4.  In this regard the Court notes that the decision of the Indictment Chamber of 23 November 1994 pertaining to the applicant’s detention was given by a court in adversarial proceedings.  This means, according to the applicable case-law (see, e.g., the De Wilde , Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 40, § 76), that the judicial control required by Article 5 § 4 was incorporated in the original judicial decision and that no further remedy was required under Article 5 § 4 (see the E. v. Norway judgment of 29 August 1990, Series A no. 181-A, § 60).

In the light of this conclusion in relation to Article 5 § 4, the Court does not deem it necessary in the instant case to inquire whether the less strict requirements of Article 13 were complied with (see in particular the de Jong , Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, § 60).

Furthermore, the right of appeal in matters of detention is not as such guaranteed by the Convention, and Article 13 of the Convention cannot be relied upon in circumstances where the alleged violation of the Convention lies in the province of a court (see the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, p. 14, § 25).

Therefore this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaints about the length of the release proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President