AS TO THE ADMISSIBILITY OF
Application No. 29356/95
by Hugo BLUMENTHAL
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996 the following members being present:
Mrs. J. LIDDY, President
MM. S. TRECHSEL
M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, 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 16 October 1995
by Hugo Blumenthal against Switzerland and registered on 23 November
1995 under file No. 29356/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 18 January 1996 to communicate the
application under Article 6 of the Convention and to declare
inadmissible the remainder of the application;
- the observations submitted by the respondent Government on
11 March and 19 August 1996, the observations in reply submitted
by the applicant on 2 May and 23 September 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swiss citizen born in 1941, is a businessman
residing at Bad Ragaz in Switzerland.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
On 16 April 1986 the Federal Banking Commission (Eidgenössische
Bankenkommission) filed a criminal report against the applicant on
suspicion inter alia of professional fraud, disloyal management,
negligent bankruptcy and the suppression of documents. The applicant,
who was the responsible agent (Geschäftsführer) of the Euroinvestor
foundation in Vaduz in the Principality of Liechtenstein was in
particular suspected of having induced, by means of misleading
information, 867 investors to pay money into trust accounts of the
Euroinvestor which in reality had been used for stock exchange and
foreign exchange speculations.
Following first investigations in Switzerland and Liechtenstein
the proceedings were taken over by the Zurich District Attorney's
Office (Bezirksanwaltschaft) on 2 October 1987. On 9 August 1988 the
District Attorney's Office requested the Liechtenstein authorities to
take over the investigations. The Liechtenstein Public Prosecutor's
Office (Staatsanwaltschaft) replied on 14 December 1988 that it had
requested the investigating judge of the Regional Court (Landgericht)
of Liechtenstein to institute criminal proceedings against the
applicant and other persons on the basis of the facts established by
the Zurich authorities.
In view of the proceedings in Liechtenstein the Zurich District
Attorney's Office temporarily suspended the proceedings in Switzerland
on 6 March 1989.
On 30 January 1990 the Government of the Principality of
Liechtenstein ordered the dissolution of the Euroinvestor foundation
in the course of which further charges were raised against the
applicant. The company's bankruptcy was ordered on 16 May 1990.
On 30 March 1990 the Zurich authorities issued an international
warrant of arrest against the applicant. Following a television
broadcast which referred to the applicant's case he was arrested on
14 January 1991 in France.
On 31 January 1991 the Liechtenstein authorities requested the
Zurich authorities to take over the criminal proceedings instituted
against the applicant. This was confirmed on 22 May 1991 by the Zurich
authorities.
Meanwhile, the applicant was extradited to Switzerland on
11 April 1991 where he was detained on remand.
On 16 April 1991 the applicant requested his release from
detention on remand. Later, he contested a further decision of 23 May
1991 to prolong his detention on remand; his appeal was dismissed by
the Zurich Court of Appeal (Obergericht) on 14 June 1991 and his public
law appeal in last resort by the Federal Court (Bundesgericht) on
16 November 1991.
On 18 October and 10 December 1991 the Zurich authorities also
took over criminal proceedings pending, respectively, before the Public
Prosecutor's Offices of Tübingen and Ravensburg in Germany.
The applicant's further request for release from detention was
dismissed, upon appeal, by the Indictment Chamber on 6 February 1992.
On 15 April 1992 the applicant was released from detention on remand.
On 23 February 1992 the Zurich District Attorney's Office
indicted the applicant. His subsequent appeal was declared
inadmissible on 29 April 1993 by the Zurich Court of Appeal and on
25 June 1993 by the Federal Court.
On 14 October 1993 the Zurich District Court (Bezirksgericht)
sentenced the applicant on account of, inter alia, professional fraud,
disloyal management, negligent bankruptcy and the suppression of
documents to forty months' imprisonment and a fine of 20'000 SFr.
Upon appeal the Zurich Court of Appeal on 28 June 1994 increased
the sentence to 54 months' imprisonment. His plea of nullity
(Nichtigkeitsbeschwerde), in which he also complained about the length
of the proceedings, was dismissed by the Court of Cassation
(Kassationsgericht) of the Canton of Zurich on 24 January 1995.
Meanwhile, the applicant filed a further plea of nullity on
5 September 1994 with the Federal Court in which he complained that the
Swiss courts lacked jurisdiction in his case as the European
Extradition Agreement had been breached; he also complained of the
punishment. The Federal Court dismissed the plea of nullity on 4 April
1995, the decision being served on 28 April 1995.
In its decision the Federal Court found that the applicant's
complaint about the extradition proceedings in Switzerland was
inadmissible as he had not complied with the formal requirements for
filing the plea of nullity. Insofar as the applicant complained about
the extradition from France, the Court found that it was not competent
to examine French law. The Court then examined, and eventually
confirmed, the sentence imposed by the Court of Appeal.
B. Relevant domestic law and practice
The Federal Court has on various occasions examined complaints
filed in a public law appeal about the undue length of criminal
proceedings which had been conducted, and concluded, before the
previous cantonal instances. Thus, in its decision of 29 March 1990
the Federal Court examined criminal proceedings having lasted seven
years, and in a decision of 16 May 1991 proceedings having lasted six
years. In both cases, the Court found that the length did not breach
Article 6 para. 1 of the Convention and did not, therefore, call, for
instance, for a termination of the proceedings or a mitigation of
sentence. In its decision of 24 January 1996 the Court found that
criminal proceedings lasting four years did not breach Article 6
para. 1 of the Convention.
COMPLAINT
Under Article 6 para. 1 of the Convention the applicant complains
of the undue length of the proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 October 1995 and registered
on 23 November 1995.
On 18 January 1996 the Commission decided to communicate the
complaint about the length of the proceedings under Article 6 para. 1
of the Convention, and to declare inadmissible the remainder of the
application.
The Government submitted their observations on 11 March and
19 August 1996 and the applicant his observations in reply on 2 May and
23 September 1996.
THE LAW
The applicant's remaining complaint is that, contrary to
Article 6 para. 1 (Art. 6-1) of the Convention, the proceedings
instituted against him were too long. This provision states, insofar
as relevant:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
..."
The Government submit that the application is inadmissible as the
applicant has not complied with the requirement under Article 26
(Art. 26) of the Convention as to the exhaustion of domestic remedies.
Thus, the applicant failed to challenge the decision of 24 January 1995
of the Court of Cassation of the Canton of Zurich, dismissing his
complaint about the undue length of the proceedings, by means of a
public law appeal to the Federal Court. Reference is made to the
Federal Court's case-law, in particular the decisions of 29 March 1990,
16 May 1991 and 24 January 1996. On the other hand, if such a public
law appeal is not considered an effective remedy, the applicant would
not have complied with the time-limit stated in Article 26 (Art. 26)
of the Convention, as he should then have filed his application within
six months after the decision of the Court of Cassation of
24 January 1995.
The applicant submits that he raised a public law appeal in 1991
before the Federal Court, though the latter in its decision of
19 November 1991 did not examine the complaint. Moreover, he has
complied with the requirements of Article 26 (Art. 26) of the
Convention in that he subsequently filed a plea of nullity which was
dismissed by the Federal Court on 28 April 1995. He could not be
expected again to raise complaints under Article 6 (Art. 6) of the
Convention as these had already been dealt with in the decision of
19 November 1991.
Under Article 26 (Art. 26) of the Convention, the Commission "may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law".
The present case concerns criminal proceedings which, by the time
they were brought before the Federal Court, had already been dealt with
by the courts of the Canton of Zurich, in particular the Court of
Appeal and the Court of Cassation.
In respect of cases which have already been concluded before the
previous instances, the Government have referred to various decisions
of the Federal Court, in particular its decisions of 29 March 1990 and
16 May 1991 (see above, Relevant domestic law and practice). These
decisions demonstrate that the applicant could still have filed a
public law appeal with the Federal Court with a complaint under
Article 6 para. 1 (Art. 6-1) of the Convention about the undue length
of the proceedings. The applicant submits, however, that he had
already filed a public law appeal which the Federal Court dismissed on
19 November 1991, and that there would be no point in bringing another
public law appeal.
The Commission notes that on 24 January 1995 the Court of
Cassation of the Canton of Zurich dismissed the applicant's plea of
nullity in which he also complained of the length of the proceedings.
Subsequently, the applicant filed a plea of nullity with the Federal
Court. However, he failed to file a public law appeal in which he
complained under Article 6 para. 1 (Art. 6-1) of the Convention of the
undue length of the proceedings. The previous public law appeal
dismissed by the Federal Court on 19 November 1991 concerned the length
of his detention.
Insofar as the applicant complains of the length of the
proceedings before the courts of the Canton of Zurich, he has not,
therefore, exhausted the remedies available to him under Swiss law.
It follows that in this respect the applicant has not complied with the
condition as to the exhaustion of domestic remedies, and his
application must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
Insofar as the applicant may be understood as complaining of the
proceedings before the Federal Court itself, the Commission notes that
the applicant's plea of nullity of 5 September 1994 was dismissed by
the Federal Court on 4 April 1995, the decision being served on
28 April 1995. This period of seven months and 23 days cannot be
regarded as having exceeded the notion of a "reasonable time" within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. This
part of the application is therefore 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 REMAINDER OF THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy