AS TO THE ADMISSIBILITY OF
Application No. 18568/91
by C.G.
against Switzerland
The European Commission of Human Rights sitting in private on
1 December 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
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 3 June 1991 and
by C.G. against Switzerland and registered on 22 July 1991 under file
No. 18568/91;
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 they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1964, is a Swiss national and resident at
Gantenschweil. He is an assembler by profession. Before the Commission
he is represented by Mr. D. Buchser, a lawyer practising in Reinach.
On 20 June 1989 the Kulm District Office (Bezirksamt) issued a
penalty order (Strafbescheid) against the applicant for having
contravened a court order, assaulted Mr. W. and caused damage to the
property of Mr. S. It imposed a fine of SFR 800. Messrs. W. and S., who
participated in the proceedings as private parties, were referred to
the civil courts as regards their compensation claims.
Upon the applicant's objection (Einsprache) against the penalty
order, the criminal proceedings against him were continued before the
Kulm District Court (Bezirksgericht). In these and the following
proceedings, the applicant was assisted by his counsel Mr. Buchser.
On 12 December 1989 the Kulm District Court, having heard in
particular the applicant and his wife, Mr. W. and his wife, Mr. S. as
well as a further witness, found the applicant guilty of having
committed bodily assault and caused damage to property, but acquitted
him of the remaining charge. It imposed a fine of SFR. 500, and also
ordered him to pay to Mr. S. compensation amounting to about SFR. 161.
Messrs. W. and S. were referred to the civil courts in respect of the
remainder of their claims.
As regards the offence of bodily assault, the District Court
considered in particular that Mr. W., in the course of an altercation
with the applicant, had suffered a fracture of a rib, as certified by
a medical practitioner. Assessing the evidence, the Court found no
indication that Mr. W. had suffered this injury on another occasion.
The District Court, having regard to the repeated neighbourly disputes
and the course of the altercation in question, as described by the
witnesses, accepted that the applicant was in a position to act in
defence of his wife. However, he could have intervened without any
major use of force. The fact that he instead kicked Mr. W. with his
foot constituted an excess of his right to act in defence.
The District Court further found that the applicant, when
furiously attempting to call Mr. S. to account for several incidents
while they were both driving with their cars on a public road, had
wilfully destroyed one window of the car of Mr. S. In this respect, the
District Court had regard to the statements of the applicant and his
wife, Mr. S. and a further witness of the event in question.
On 2 May 1990 the Court of Appeal of the Canton Aargau
(Obergericht), upon the applicant's appeal (Berufung), reduced the fine
to SFR. 250, and dismissed the remainder of the appeal.
The Cantonal Court confirmed the findings of the lower instance.
It considered in particular that the questioning of Mr. W. as well as
of Mr. S. as witnesses (Zeugen) and not only as a person giving
information (Auskunftsperson) could not be objected to. According to
S. 105 para. 1 of the Aargau Code of Criminal Procedure (Strafprozess-
ordnung), persons suspected of a criminal offence or otherwise being
biassed should not be questioned as witness, but only as person giving
information on the offence in question. The Court of Appeal, referring
to its case-law, considered that persons, who had brought charges
against the accused or participated in the proceedings as private
party, could not in general be regarded as biased.
On 3 April 1991 the Federal Court (Bundesgericht) dismissed the
applicant's application for a declaration of nullity (Nichtigkeits-
beschwerde).
Furthermore, on 3 April 1991 the Federal Court dismissed his
public-law appeal (staatsrechtliche Beschwerde) against the judgment
of 2 May 1990. The Federal Court considered in particular that it was
irrelevant whether Mr. W. should not have been heard as witness, but
only as person giving information, because there was no indication that
his testimony had more weight, because he had been questioned as
witness. Even regarding his statements as those of a person giving
information, the assessment of evidence by the lower instances did not
appear arbitrary. As regards the similar complaint in respect of the
questioning of Mr. S., the Federal Court also noted that there had been
further evidence, and that Mr. S. had not been regarded as more
trustworthy due to the fact that he had been questioned as witness.
COMPLAINTS
The applicant complains under Article 6 para. 3 (d), of the
Convention about his conviction by the Swiss Courts and of the court
proceedings concerned. He submits in particular that the taking of
evidence was unfair in that two persons who were biased against him
were questioned as witnesses.
THE LAW
The applicant complains under Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention about his conviction by Swiss courts and
also of the proceedings concerned.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in 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 (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
As regards the alleged unfairness of the trial, in particular the
taking of evidence, the Commission recalls that the guarantees in
paragraph 3 of Article 6 (Art. 6-3) are specific aspects of the right
to a fair trial set forth in paragraph 1 (see Eur. Court H.R., Asch
judgment of 26 April 1991, Series A no. 203, p. 10, para. 25). The
Commission will, therefore, consider the applicant's complaint under
the two provisions taken together.
The admissibility of evidence is primarily a matter for
regulation by national law, and, as a rule, it is for the national
courts to assess the evidence before them. The task of the Convention
organs is to ascertain whether the proceedings considered as a whole,
including the way in which evidence was taken, were fair. In
particular, all the evidence must normally be produced in the presence
of the accused at a public hearing with a view to adversarial argument
(cf. Eur. Court H.R., Asch judgment, loc. cit., paras. 26-27).
The Commission notes that the Kulm District Court, in its
judgment of 12 December 1989, based the applicant's conviction of
having committed bodily assault and having caused damage to property
inter alia on the respective statements - as witnesses - of Messrs. W.
and S., i.e. the victims of the offences in question and private
parties to the criminal proceedings. On 2 May 1990, the Court of Appeal
of the Canton Aargau confirmed the applicant's conviction in respect
of these two offences and considered in particular that the questioning
of Messrs. W. and S. as witnesses could not be objected to. Referring
to S. 105 para. 1 of the Aargau Code of Criminal Procedure, the Court
of Appeal observed that a private party to the proceedings could not
be generally regarded as biased. The Federal Court, in its judgment of
3 April 1991, found this matter to be irrelevant on the grounds that,
even regarding their statements as those of persons giving information,
the assessment of evidence by the lower courts did not appear
arbitrary, and that there was further evidence.
The Commission finds that Messrs. W. and S. were heard in person
at the trial before the Kulm District Court, where the applicant, who
was assisted by counsel, had the opportunity to put questions to them
and to challenge in particular their trustworthiness. Moreover, their
statements did not constitute the only item of evidence on which the
first-instance court based its judgment. The Kulm District Court had
also regard to a medical certificate and to the statements of further
witnesses. The Commission finds no indication that the fact that
Messrs. W. and S. were questioned as witnesses and not as persons
giving information within the meaning of S. 105 para. 1 of the Aargau
Code of Criminal Procedure disregarded the applicant's defence rights,
or otherwise rendered the proceedings unfair.
Consequently, in the circumstances of the present case, the
Commission finds no appearance of a violation of the rights of the
defence, or of the applicant's right to a fair trial, as guaranteed by
Article 6 (Art. 6) of the Convention.
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 First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy