AS TO THE ADMISSIBILITY OF
Application No. 27338/95
by F. S .J. and 22 others
against Switzerland
The European Commission of Human Rights sitting in private on
24 February 1997, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 April 1995 by
F. S. J. and 22 others against Switzerland and registered on 16 May
1995 under file No. 27338/95;
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 application has been introduced by 23 applicants, all of whom
are German citizens. Before the Commission the applicants are
represented by Mr M. Günther, a lawyer practising at Hilden in Germany.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
On 17 September 1990 a demonstration took place at the Leibstadt
nuclear power plant, located in Switzerland near the Swiss-German
border. The demonstrators came mainly from Switzerland and Germany.
Certain persons entered the premises and climbed on to the cooling
tower. The power plant company filed a criminal complaint alleging
trespass (Hausfriedensbruch) and causing damage to objects
(Sachbeschädigung).
Criminal proceedings were instituted against the applicants who
had participated in this demonstration. The applicants were
represented by Mr M. Günther who also represented the applicants in
letters rogatory proceedings in Germany.
By penal order (Strafbefehl) of 2 July 1992 the Zurzach District
Office (Bezirksamt) sentenced each applicant to 30 days' imprisonment,
suspended on probation, and a fine of 300 Swiss Francs (CHF) on account
of causing damage to objects (Sachbeschädigung) and alleging trespass
(Hausfriedensbruch). The penal orders were served on the applicants'
representative in Germany. Upon his objection, proceedings were
referred to the Zurzach District Court (Bezirksgericht).
By letter of 30 November 1992 the District Court's President
informed the applicants' representative that he could not represent his
clients as only licensed (zugelassen) lawyers could practise in the
Canton of Aargau. When the applicants' representative expressed his
disagreement, the District Court on 19 April 1993 issued a decision not
to admit the applicants' lawyer at the trial. The applicants were
given a time-limit of 30 days to find another lawyer.
The applicants and their lawyer unsuccessfully appealed against
this decision to the Court of Appeal (Obergericht) of the Canton of
Aargau.
Their public law appeal (staatsrechtliche Beschwerde) was
dismissed by the Federal Court (Bundesgericht) on 22 August 1994, the
decision being served on 15 November 1994.
In its decision the Federal Court first dealt with the
applicants' argument that even family members and other untrained
persons were allowed to act as representative in criminal proceedings.
However, the Court noted that such representation was justified on
personal or financial grounds.
The Federal Court then dealt with the applicants' complaint that
Article 6 para. 3 (c) of the Convention enshrines the right freely to
choose the legal representative (p. 12-15): "The text of this provision does not directly answer the question whether the accused may choose any particular third person as defence counsel, or whether he is bound by the respective licensing conditions for lawyers. A restrictive interpretation of the right to choose in this provision is called for already on practical grounds: if an accused could in principle choose any person whom he found suitable as defence counsel, this would as a result invalidate the limitations regularly envisaged under national law in matters of criminal procedure. Any third party (and also any professionals) could then, by invoking the accused's right to a free choice, bring about his right to practise as defence counsel in a particular criminal case without having to comply with the requirements applicable to lawyers. This cannot be the purpose of the Convention provision mentioned ... The Cantonal legislator may generally limit professional advocacy to those lawyers who have demonstrated the required knowledge of Swiss law by means of a State examination in the particular Canton or (on the basis of existing domestic rules on freedom of movement) in a third Canton and whose residence in Switzerland has familiarised them with the local judicial customs. Such licensing restrictions can easily be justified in the interests of justice at issue and on the grounds of economic order. A refusal to license foreign lawyers is not the sole or primary aim of a policy intended to protect the profession. On the one hand, foreign lawyers have as a rule only a limited knowledge of Swiss and cantonal law and are not familiar with the local circumstances and the forensic customs. Furthermore, there are practical reasons for refusing a licence (i.e. enforcement of professional regulations; possibility of disciplinary supervision: address for serving mail; practical difficulties when dealing with the court, for instance when deciding on dates or authorising consultation of the case-file). It makes no difference whether a foreign lawyer wants to act on a regular basis in Switzerland or in a particular Canton, or whether, as in the present case, he only wants to represent foreign clients before a Swiss court in particular proceedings. The grounds mentioned have sufficient weight to exclude generally even individual exceptions. Nor is the legitimacy of this point of view called in question by the fact that (on the basis of S. 5 of the Transitional Provisions of the Federal Constitution), lawyers from other Cantons may appear before a court, as opposed to foreign lawyers (or those with foreign diplomas). Thus, the diploma obtained in another Canton will guarantee at the outset knowledge of the (unified) Swiss law, inter alia, the Penal Code. One can also expect a certain minimal familiarity with procedures of other Cantons which may differ from each other but are influenced by a common tradition. As a rule, this is not the case with lawyers with foreign diplomas working abroad." The criminal proceedings are still pending before the Zurzach District Court. B. Relevant domestic law S. 64 para. 3 of the Federal Constitution (Bundesverfassung) provides that "the organisation of the courts (and) the court procedure ... shall remain ... with the Cantons". According to S. 5 of the Transitional Provisions (Übergangs- bestimmungen) of the Federal Constitution, persons of liberal professions (wissenschaftliche Berufe) who have obtained a diploma to practise may do so in the whole of the Swiss Federation. S. 61 para. 1 of the Code of Criminal Procedure (Strafprozess- ordnung) of the Canton of Aargau provides that only licensed lawyers (patentierte Anwälte) may act as defence counsel. Defence in court of an accused is also possible, by a person's legal representative, by his spouse, a parent, or a child who has come of age. In order for a lawyer to obtain a licence for professional practice, the Bar Act (Anwaltsgesetz) of the Canton Aargau provides that a lawyer must have obtained a diploma (Fähigkeitsausweis), either in the Canton of Aargau or in another Canton. COMPLAINTS The applicants complain under Article 6 para. 3 (c) of the Convention that Mr Günther was not admitted as the applicants' freely chosen defence counsel at the trial. It is pointed out that the Swiss authorities never criticised the professional abilities of Mr Günther, and that indeed he was accepted by the prosecuting authorities at the outset of the investigations. The applicants chose Mr Günther as they all live in Germany and can contact him more easily than a lawyer in Switzerland. Moreover, it appeared necessary to employ a German lawyer familiar with German law as proceedings also took place via letters rogatory in Germany. The applicants may also be prosecuted in Germany for a similar offence. The applicants feared that lawyers in the comparatively small Canton of Aargau would not be sufficiently distant from the local courts to obtain the applicants' confidence. The applicants point out that a foreign lawyer who is related to an accused (spouse, parent) would not, according to Swiss legislation, be excluded from representation. The applicants submit that conditions prevailing under Article 6 para. 3 (c) in the case of officially appointed lawyers, in particular the interests of justice, cannot apply in the case of a freely chosen lawyer. THE LAW The applicants complain that Mr Günther was not admitted to the trial as the applicants' freely chosen defence counsel. They rely on Article 6 para. 3 (c) (Art. 6-3-c) of the Convention which states: "3. Everyone charged with a criminal offence has the following minimum rights: ... c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ..." The Commission notes that the proceedings against the applicants are still pending, and recalls that, in principle, it can only assess the fairness of criminal proceedings when it is able to consider them in their entirety (cf. No. 9000/80, Dec. 11.3.82, D.R. 28, p. 127). Moreover, an acquittal will normally be regarded as rectifying procedural errors alleged to have violated the Convention (cf. No. 8083/77, Dec. 13.3.80, D.R. 19, p. 223). In the present case, the Commission considers that, until the relevant proceedings have finished, when it may become apparent that the applicants cannot claim to be victims of a violation, their complaint that Mr Günther was not admitted to the trial as their freely chosen defence counsel is premature. In any event, the Commission, even assuming that the applicants' complaint could already be assessed at this early stage in the proceedings (cf. Nos 8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22, p. 216), recalls that, notwithstanding the importance of a relationship of confidence between lawyer and client, the right under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention to be defended by counsel of one's own choosing cannot be considered to be absolute and is necessarily subject to certain limitations. Thus, while national courts must certainly have regard to the defendant's wishes, they may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Eur. Court HR, Croissant v. Germany judgment of 25 September 1992, Series A no. 237-B, p. 33, para. 29). In the present case, the applicants were in principle free to choose any lawyer as defence counsel provided he had obtained a diploma in Switzerland. The Swiss courts refused to admit Mr Günther who resided in Germany and had not obtained a diploma in Switzerland. The Federal Court, in its decision of 22 August 1994, found that foreign lawyers had, as a rule, only a limited knowledge of Swiss and cantonal law and were not familiar with the local circumstances and the forensic customs. There were furthermore practical reasons for this solution, such as the enforcement of professional regulations; the possibility of disciplinary supervision; enabling access to the case-file; and discussing the schedule of a trial. Lawyers from other Cantons had at least knowledge of the unified Swiss law, such as the Penal Code, and a certain minimal familiarity with Swiss cantonal procedures. Finally, personal links and financial considerations justified the exception that other individuals, such as family members, could represent an accused in individual cases. In the Commission's opinion, the Swiss courts gave relevant and sufficient reasons when rejecting the applicants' request for admitting Mr Günther as their defence counsel. The Swiss courts' refusal was not, therefore, incompatible with Article 6 para. 3 (c) (Art. 6-3-c) 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. H.C. KRÜGER G.H. THUNE Secretary Acting President to the Commission of the Commission
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