AS TO THE ADMISSIBILITY OF
Application No. 20552/92
by Marc ACHTARI
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 July 1992 by
Marc Achtari against Switzerland and registered on 27 August 1992 under
file No. 20552/92;
Having regard to the report provided for in Rule 47 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 Swiss citizen born in 1946, is a pharmacist.
Before the Commission he is represented by Mr Jean Lob, a lawyer
practising in Lausanne.
On 3 November 1988 the investigating judge of the Glâne district
issued a warrant of arrest against the applicant, suspected of having
killed his associate, Mr. M.F. On the same day the applicant was
detained on remand.
On 13 April 1989 the Indictment Chamber of the Cantonal Court of
the Canton of Fribourg (Chambre d'Accusation du Tribunal Cantonal de
Fribourg) committed the applicant for trial before the Glâne Criminal
Court (Tribunal criminel) on suspicion of homicide or, alternatively,
murder.
On 29 June 1989 the Glâne Criminal Court convicted the applicant
of murder and sentenced him to life imprisonment.
The applicant filed an appeal in cassation and a public law
appeal against this judgment.
On 29 November 1989 the Federal Court (Tribunal Fédéral) quashed
the attacked judgment, finding that the lower Court had been assisted
by a registrar (greffier-juriste) who had previously participated in
the taking of important investigative measures. The Federal Court
referred the case to the Cassation Court for the Canton of Fribourg
(Cour de cassation du canton de Fribourg). On 4 December 1989 this
Court referred the case to the Gruyère Criminal Court for
reconsideration.
On 3 April 1990 the Gruyère Criminal Court convicted the
applicant of homicide, by poisoning M. F. with potassium cyanide put
into a can of beer, and sentenced him to ten years' imprisonment.
The Court found that late in the evening of 24 October 1988, the
applicant, the victim M.F., a pharmacist P.S. and his girlfriend M.C.
had been working at a pharmacy, owned by the applicant and the victim.
They had been drinking beer from cans. At a certain moment the
applicant noticed that his beer had a strange smell. Thereupon he had
exchanged his can for that of the victim. Shortly afterwards M.F. had
complained that his beer had terrible taste ("mais elle est déguelasse
cette bière") and had lost consciousness. A doctor had arrived with
an ambulance and tried to resuscitate M.F. The applicant had failed
to tell him about the acid smell of the beer; it was P.S. who had done
so. M.F. had been taken to a hospital and died shortly thereafter.
An autopsy made by the Forensic Medicine Institute in Lausanne had
shown that the beer had contained potassium cyanide.
The Court considered the evidence given, inter alia, by P.S. and
M.C., who had been present at the premises at the material time, three
security agents present in the building, the physician who had
attempted to resuscitate the victim, the ambulance assistant, the
victim's wife, other family members, taped phone conversations between
the victim's wife and, inter alia, P.S. and M.C, and a psychiatric
opinion about the applicant.
The Court noted that the applicant had consistently denied that
he had poisoned M.F., and that there were no direct witnesses of the
poisoning, nor any irrefutable material evidence. The Court further
considered six hypotheses as to the possible course of events leading
to the victim's death, namely an accident, a suicide, the victim's
attempt to kill the applicant, an action of either M.C. or P.S., a
conspiracy of unknown third parties against the victim, and the action
of an unidentified third person who could have penetrated into the
pharmacy at the material time without being seen. The Court excluded
all these possibilities and concluded that it appeared most plausible
that the crime had been committed by the applicant. In establishing
the possible motives of the applicant the Court pointed to his troubled
business relations with the victim and to a difficult character of the
latter. The Court had regard to the varying versions of the facts
given by the applicant in the course of the investigations. The Court
took into account the applicant's failure to tell the doctor about the
change of the smell of beer, as well as the fact that it was only at
a late stage of the investigations that the applicant had told the
investigating judge about the exchange of beer cans. These latter
factors, in the Court's opinion, negatively affected his credibility.
The Court considered that the principle "in dubio pro reo" on the
one hand related to the burden of proof in that it obliged the court
to prove guilt of the accused and not the accused to prove his
innocence. On the other hand this principle prohibited arbitrary
appreciation of evidence. However, it did not oblige the Court to
retain a solution most favourable to the accused.
On 17 September 1990 the Fribourg Court of Cassation dismissed
the applicant's plea of nullity. The Court noted that the lower Court
had excluded other hypotheses as to the possible cause of the victim's
death on the basis of a thorough and well-motivated reasoning; that the
Court had not overstepped the margin of appreciation in making
conclusions relating to the gaps and inconsistencies in the evidence
given by the applicant, in particular as to the fact that he had
exchanged the beer cans between himself and the victim, and as to his
failure to tell the ambulance doctor about the change of the smell of
the beer. The Court concluded that there was no arbitrariness in the
assessment of evidence by the lower Court.
The applicant filed a public law appeal with the Federal Court,
complaining under Article 6 para. 2 of the Convention and Article 4 of
the Federal Constitution that the authorities had disregarded the
presumption of innocence and had proceeded from the assumption that he
was guilty. This had led the Courts to disregard the evidence which
was more favourable to the applicant and to attach undue importance to
evidence pointing to his guilt. As a result, the assessment of
evidence was arbitrary.
On 29 January 1992 the Federal Court dismissed the applicant's
public law appeal. In its decision, numbering 28 pages, the Court
analysed the findings of the lower Courts relating to the exchange of
the beer cans and to the applicant's failure to tell the doctor about
the strange smell of the beer. The Court examined the conclusions
which the Courts had drawn therefrom as to the applicant's guilt. The
Court considered that these conclusions were not untenable, as alleged
by the applicant. It was true that the lower courts had not convicted
the applicant on the basis of any material proof, but on the basis of
concurring indications ("faisceau d'indices"). However, Article 6
para. 2 of the Convention did not require an absolute certainty of the
evidence; but only that guilt should be attributed if objective
analysis of the evidence did not allow for the conclusion that the
accused was not guilty. The Court considered that "nothing [in the
deliberations of the cantonal courts] supports an opinion that they had
acted in such a manner as to presuppose guilt of the applicant and to
interpret the facts systematically to his disadvantage in order to set
aside the evidence which was favourable for him" ("rien dans les
éléments ainsi débattus ne permet de dire que les autorités cantonales
seraient parties d'une présomption de culpabilité du recourant detenant
systématiquement à sa charge des faits douteux pour écarter ce qui dans
l'administration des preuves lui a été favorable"). The Court
concluded that the first instance court had not surpassed the limits
of appreciation of evidence or established facts in a arbitrary manner
in excluding other hypotheses as to the causes of the victim's death.
COMPLAINTS
The applicant complains of a breach of Article 6 para. 2 of the
Convention according to which everybody shall be presumed innocent
until proven guilty according to law. The applicant submits that he
was convicted on the basis of insufficient evidence, contrary to the
principle that the guilt must be firmly established. He complains that
the assessment of evidence made throughout the proceedings was
arbitrary. He submits that the Federal Court's restrictive
interpretation of this provision diminishes the protection afforded by
Article 6 of the Convention.
THE LAW
The applicant complains under Article 6 para. 2 (Art. 6-2) of the
Convention that he was convicted on insufficient evidence, contrary to
the principle that the guilt must be firmly established. He submits
that he was not presumed innocent until proven guilty in accordance
with the law. He complains that the assessment of evidence made
throughout the proceedings was arbitrary.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that under Article 19 (Art. 19) of
the Convention its only task is to ensure the observance of the
obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers on this point to its established
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 p. 31, 45).
Insofar as the applicant complains under Article 6 para. 2
(Art. 6-2) of the Convention that he was not presumed innocent until
proven guilty, the Commission recalls that the presumption of
innocence will be violated if, without the accused's having previously
been proved guilty according to law, a judicial decision concerning him
reflects an opinion that he is guilty (Eur. Court H.R., Barberà,
Messegué and Jabardo judgment of 6 December 1988, Series A no.146,
p.31, para. 67 et seq.).
In the present case the applicant does not adduce any argument
which would indicate that the presumption of innocence was disregarded
in the proceedings at issue, other than the assessment of evidence made
by the Courts. It does not appear from the case-file that during the
proceedings the Courts, before finding the applicant guilty on the
basis of the evidence, took decisions reflecting the opinion that the
applicant had committed the acts which he was charged with.
Insofar as the applicant complains about arbitrary assessment of
evidence, the Commission recalls that it is primarily for the national
courts to assess the evidence before them. The Convention organs' task
is to ascertain whether the proceedings considered as a whole,
including the way in which evidence was taken, were fair (Eur. Court
H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,
para. 26).
In the present case there is no indication that the proceedings
were unfairly conducted or that the applicant, who was represented by
a lawyer, could not adduce any evidence which he regarded as being
pertinent or to put forward any argument he considered relevant. The
Federal Court undertook a detailed analysis, numbering 28 pages, of the
applicant's complaints, addressing the issue of the assessment of
evidence by the first instance court. It concluded that the lower
courts had not overstepped the limits of appreciation of evidence or
established facts in a arbitrary manner in excluding other hypotheses
as to the causes of the victim's death. The Commission does not find
these conclusions arbitrary or otherwise unfair.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy