Information Note on the Court’s case-law 16

March 2000

I.O. v. Switzerland (dec.) - 21529/93

Decision 23.3.2000 [Section II]

Article 5

Article 5-3

Judge or other officer exercising judicial power

Independence of investigating judge subject to control of the prosecuting authority by virtue of cantonal law: admissible

After a warrant for his arrest had been issued by the Berne investigating judge, the applicant was arrested, and on 15 January 1992 the judge ordered a preliminary judicial investigation to be launched in respect of him for extortion and blackmail and his detention to avoid the risk of collusion. The applicant was interviewed by the investigating j udge and on 23 January he applied for provisional release from pre-trial detention and access to the case file so that he could give reasons in support of his application for release. After the investigating judge refused those two applications in a reason ed decision dated 28 January 1992, the application for release was automatically referred, in accordance with cantonal legislation, to the Indictment Division of the Berne Court of Appeal, which likewise refused it. On 13 February 1992 a witness was examin ed by the investigating judge in the presence of, among others, the applicant’s lawyer and the district prosecutor. On 17 February 1992 the Indictment Division refused an appeal that the applicant had lodged against the investigating judge’s decision of 28 January 1992. Nevertheless, on 19 February, that is to say thirty-five days after the applicant’s arrest, his lawyer was able to inspect the investigation file. On 20 February a press conference was held in which the Berne police chief, the investigating judge and the district prosecutor took part, among others. On 16 March 1992 the applicant lodged a public-law appeal with the Federal Court against the two decisions by the Indictment Division in which he relied on an infringement of Articles 5 § 3 and 4 a nd Article 6 § 1 and § 3(b) and (c) of the Convention. In a judgment of 27 May 1992 the Federal Court held that the complaint that access to the file had been denied was inadmissible on the grounds that the application had become devoid of purpose once per mission had been granted on 19 February 1992. It dismissed the complaint based on Article 5 § 3 of the Convention as being unfounded and held that, with respect to this, while the district prosecutor’s right under cantonal legislation to give instructions was in itself an infringement of the requirement that investigating judge must be independent, Article 5 § 3 would nevertheless have to be held not to have been infringed because, as the Principal Public Prosecutor had observed, over the previous decades i t had been the settled practice that no directions for the arrest of an accused were given by the prosecuting authority to the investigating judges, any more than had happened in the instant case, in which the district prosecutor had not issued any orders to have the applicant arrested or kept in custody. By concurring decisions of the investigating judge and the prosecutor, the applicant was committed for trial at the Berne Criminal Court and on 3 February 1994 was finally convicted by the Court of Appeal, which sentenced him to twenty-four months’ imprisonment and made an order excluding him from the country for five years.

Admissible under Article 5 § 3 and § 4.

Inadmissible under Article 6 § 3 (b) and (c): non-exhaustion.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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