AS TO THE ADMISSIBILITY OF
Application No. 19976/92
by Harold FRANKEL
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 24 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
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 30 April 1992 by
Harold Frankel against Switzerland and registered on 12 May 1992 under
file No. 19976/92;
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 is a British citizen born in 1932. He is currently
serving a prison sentence in Bellechasse prison in Switzerland. Before
the Commission he is represented by Mr. Alain Marti, a lawyer
practising in Geneva.
On 12 June 1990 the Public Prosecutor (Procureur général) of the
Canton of Geneva instituted investigations concerning the disappearance
in autumn 1989 of Ms. G., the applicant's companion of thirty years.
It was established in the course of the investigations that the
applicant had closed various bank accounts of Ms. G., forged her
signature, sold her movable property, married another woman, left
Switzerland and settled in France.
On 8 November 1990 the investigating judge (juge d'instruction)
of the Canton of Geneva issued an international warrant of arrest.
On 10 November 1990 the applicant was arrested in Paris. He apparently
consented to his extradition to Switzerland which took place on
26 February 1991. On 27 February 1991 the police questioned the
applicant. He stated that in August 1989 he had had a violent argument
with Ms. G. and hit her several times on the head with a statue,
whereupon she had died. Subsequently the applicant had drowned her
body in Lake Geneva.
On the same day the applicant was remanded in custody and charged
with manslaughter, fraud and theft.
On 16 April 1991 the investigating judge decided that the
applicant should undergo a psychiatric examination.
On 31 May 1991 the applicant complained to the investigating
judge that he had ordered the taking of evidence which was of no
significance to the proceedings; in particular, it could not lead to
establishing the financial situation of the applicant at the material
time and thus could not shed light on whether the applicant had had any
financial motives for killing Ms. G.
On 7 June 1991 the applicant requested the investigating judge
to hear certain witnesses, some of them by a commission rogatory in
France, in order to establish the exact date of the victim's death.
On 24 June 1991 the applicant informed the investigating judge
that in order to establish his financial situation at the material time
it would be necessary to hear former employees of his former client,
a bankrupt company N. He requested the judge to order a search at its
former headquarters. On 15 July 1991 the applicant reiterated this
request.
On 16 July 1991 the applicant complained to the cantonal Chamber
of Indictment (Chambre d'Accusation) that the investigating judge had
failed to take evidence concerning his financial situation at the
material time and that there had been no progress in the investigations
for the three preceding months. On 27 August 1991 the Chamber declared
the complaint inadmissible. It observed that the investigating judge
had not replied to three requests concerning the taking of evidence
within the period of at most one month and a half. The Chamber found
that this did not amount to a prolonged inactivity on the part of the
investigating judge, and was moreover in part justified by the fact
that the judge had been on holidays.
In letters of 2 September and 23 September 1991 to the
investigating judge the applicant insisted that the judge should hear
witnesses and order a search in accordance with the applicant's
requests of 7 and 24 June 1991.
On 27 November 1991 the Chamber of Indictment of the Geneva
Canton prolonged the applicant's detention for three months.
On 3 December 1991 the psychiatrists, in a medical expert
opinion, found that at the material time the applicant had suffered
from a long lasting emotional stress and depression in connection with
the tensions and arguments between him and Ms. G.
On 18 December 1991 the applicant requested to be released.
On 23 December 1991 the Chamber of Indictment of the Geneva
Canton dismissed this request. The Chamber had regard to the
seriousness of the charge and considered that there was a risk of the
applicant absconding. The Chamber considered that the continued
detention was necessary for a proper conduct of the investigations.
The applicant filed a public law appeal (recours en droit public)
with the Federal Court (Tribunal Fédéral), submitting that there was
no reasonable suspicion that he had intentionally killed Ms. G. and
that the Chamber had not indicated how his continued detention was
necessary to ensure the proper progress of the investigations. He
further submitted that the conclusions as to the risk of his absconding
were erroneous. The applicant also requested legal aid.
On 12 February 1992 the investigating judge heard the applicant.
On 14 February 1992 the Federal Court upheld the decision of
23 December 1991. The Court found a very strong suspicion that the
applicant had killed Ms. G., based on, inter alia, his own statements
made in the course of the investigations. Therefore it remained for
the Court to decide whether the offence constituted intentional
manslaughter or accidental killing. The Court considered that the
Accusation Chamber had failed sufficiently to indicate what particular
purposes of the investigations necessitated the applicant's continued
detention, and how his release would create a risk of collusion.
However, the Court observed that in view of the lack of family,
property or professional ties of the applicant in Switzerland there was
a genuine risk of his absconding. The Court found that the period of
detention was not disproportionate to the possible penalty. The Court
refused to grant legal aid as the appeal obviously offered no prospects
of success.
On 19 and 25 March 1992 the applicant complained to the Chamber
of Indictment of the Canton of Geneva that the investigating judge had
refused to comply with his requests to take certain evidence and about
the length of the proceedings.
On 26 March 1992, in a letter to the investigating judge, the
applicant complained about the manner in which the investigations had
been conducted, and in particular that he had not been heard since
12 February 1992. He submitted that the proceedings lasted too long.
On 6 May 1992 the Chamber of Indictment dismissed the applicant's
further request for release.
On 18 May 1992 the Accusation Chamber partly dismissed the
applicant's complaint about the conduct of the investigation and partly
upheld it, ordering the investigating judge to hear one witness
required by the applicant and to translate the applicant's memorials
submitted in English in their entirety. The Chamber observed that a
certain request of the applicant as to the taking of evidence had
meanwhile been complied with.
The applicant appealed against this decision, complaining that
the investigations had not been conducted efficiently and, as a result,
that they exceeded a reasonable time.
On 25 May 1992 the Chamber of Indictment of the Canton of Geneva
prolonged the applicant's detention for another three months.
On 1 July 1992 the Federal Court declared inadmissible the
applicant's appeal against the decision of 18 May 1992 finding that the
applicant had not suffered irreparable damage in result thereof, as he
still could ask for certain evidence to be taken in further
proceedings. The Court also dismissed the appeal against the decision
of 25 May 1992. It considered that the Chamber of Indictment was
justified in finding that there was a risk of the applicant absconding
and further found sufficient grounds to believe that the applicant had
committed the crime at issue. The Court considered that the length of
detention was not disproportionate to the possible penalty. It
observed that it was decisive for the outcome of the case to establish
whether the killing was accidental or intentional. This was difficult
in the given circumstances, and necessitated establishing the
applicant's motives, including a possible financial one. The Court
noted that the investigating authorities had taken ample evidence
relating thereto, having questioned the applicant sixteen times.
Moreover, five times certain evidence had been taken by commissions
rogatory and on numerous occasions the investigating authorities had
heard witnesses and carried out searches. The investigations had thus
been conducted in a regular manner.
On 16 October 1992 the Jury Court (Cour d'assises) of the Canton
of Geneva convicted the applicant of manslaughter, fraud and theft and
sentenced him to seven years' imprisonment.
COMPLAINTS
The applicant complains under Article 5 para. 3 of the Convention
that his detention on remand was unjustified as the grounds for
detention relied on by the Swiss authorities were insufficient. He
complains that the authorities wrongly regarded his British nationality
as a sufficient ground for believing that there was a risk of his
absconding; this consideration was erroneous as he had consented to
his extradition from France to Switzerland. He further complains about
the length of his detention on remand, which in his view was
disproportionate to the possible penalty.
The applicant complains under Article 6 para. 1 of the Convention
that the investigating judge conducted the investigations in an
inefficient manner with long periods of inactivity. He complains that
the proceedings were unreasonably long.
The applicant complains under Article 6 para. 3 (c) of the
Convention about the refusal of legal aid in the proceedings before the
Federal Court upon the public law appeal concerning his complaint about
the refusal of release from detention on remand. He submits that this
refusal was arbitrary.
THE LAW
1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the
Convention that his continued detention was unjustified. He complains
that the authorities erroneously regarded his British nationality as
a sufficient ground for believing that there was a risk of his
absconding. He complains about the length of his detention on remand,
and in particular alleges that it was disproportionate to the possible
penalty.
Article 5 para. 3 (Art. 5-3) of the Convention, insofar as
relevant, provides as follows:
"Everyone arrested or detained in accordance with the provisions
of paragraph 1 (c) of this Article (...) shall be entitled to
trial within a reasonable time or to release pending trial."
The applicant's detention on remand commenced on 26 February 1991
(extradition) and ended on 16 October 1992 (conviction). The period
to be examined under Article 5 para. 3 (Art. 5-3) of the Convention
thus lasted altogether one year, seven months and twenty days.
The Commission recalls that it is in the first place for the
national authorities to ensure that, in a given case, pre-trial
detention of an accused person does not exceed a reasonable time.
To this end, they must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying, with
due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty and set them
out in their decisions on the question of release. It is essentially
on the basis of the reasons given in these decisions and of the true
facts mentioned by the applicant in his appeals, that the Convention
organs are called upon to review the reasonableness of the length of
detention (cf. Eur. Court H.R., Letellier judgment of 26 June 1991,
Series A no.207, p. 18, para. 35).
The persistence of a reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for the
validity of the continued detention, but, after a certain lapse of
time, it no longer suffices; the Convention organs must then establish
whether the other grounds cited by the judicial authorities continue
to justify the deprivation of liberty, and whether the domestic
authorities displayed special diligence in the conduct of the
proceedings (cf. Eur. Court H.R., Letellier judgment, loc.cit.).
In the present case the Accusation Chamber of the Canton of
Geneva and the Federal Court in their decisions relating to the
applicant's requests for release found that there was a very strong
suspicion, supported inter alia by his own statements, that the
applicant had killed his companion. There were also reasonable grounds
for believing that the applicant had misappropriated her property by
closing her bank accounts in her name and selling her movables. Their
findings as to the risk of the applicant absconding were based on the
fact that although he had lived in Switzerland for a long time, he had
not had any strong professional, property or family links there. This
consideration was supported by the fact that the applicant shortly
after the death of his companion had in fact left Switzerland and
settled in France. The Courts also had regard to the severity of the
sentence which the applicant risked if convicted of intentional
killing. In the Commission's opinion, this reasoning does not appear
arbitrary, and the applicant's continued detention was thus based on
sufficient and relevant grounds.
As regards the conduct of the proceedings by the Swiss
authorities, the Commission recalls that the right of the accused in
detention to have his case examined with particular expedition must not
hinder the efforts of the prosecuting authorities to carry out their
tasks with proper care (cf. Eur. Court. H.R., Tomasi judgment of
27 August 1992, Series A no. 241-A, p. 39, para. 102).
In the present case the applicant was arrested on
10 November 1990 and extradited to Switzerland on 26 February 1991.
It transpires from the Federal Court's judgment of 1 July 1992 that
subsequently the applicant was questioned sixteen times; five times
certain evidence was taken by commission rogatory, and witnesses were
heard, and searches carried out on numerous occasions. In view
thereof, the Commission does not consider that the Swiss authorities
failed to act with the necessary diligence in the conduct of the
proceedings. In these circumstances, the Commission does not find that
the period of the applicant's detention on remand exceeded a reasonable
time within the meaning of Article 5 para. 3 (Art. 5-3) of the
Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant complains under Article 6 para. 1
(Art. 6-1) of the Convention that the length of proceedings exceeded
a reasonable time, and under Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention about the refusal of legal aid in the proceedings before the
Federal Court leading to its decision of 14 February 1992, the
Commission is not required to decide whether or not the facts submitted
by the applicant in support of those complaints disclose any appearance
of a violation of the invoked provisions as Article 26 (Art. 26) of the
Convention provides that the Commission "may only deal with the matter
after all domestic remedies have been exhausted".
In the present case the applicant was convicted on
16 October 1992 by the Jury Court of the Canton of Geneva. Against
this judgment he could file a public law appeal in last resort with the
Federal Court, in which he could have submitted the complaints he has
made before the Commission. The applicant has not shown that he has
done so. It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) 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)
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