AS TO THE ADMISSIBILITY OF
Application No. 16875/90
by G.
against Switzerland
The European Commission of Human Rights sitting in private
on 10 October 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 4 July 1990 by
G. against Switzerland and registered on 17 July 1990 under
file No. 16875/90;
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 applicant, a Swiss citizen born in 1953, is a lawyer
residing at A. in the Canton of Basel-Landschaft in Switzerland.
Since 1984 the authorities of the Canton of Aargau have been
conducting criminal investigations against the applicant in connection
with the bankruptcy of a company in Aargau. On 10 May 1984 the
applicant was indicted before the Brugg District Court
(Bezirksgericht) inter alia of the offence of fraud.
On 18 October 1989 the District Attorney's Office
(Bezirksanwaltschaft) at Uster in the Canton of Zurich informed the
applicant that criminal proceedings had been instituted against him on
suspicion of false accusation by filing certain criminal
denunciations (Strafanzeigen). On 4 January 1990 the Uster District
Attorney's Office requested the authorities of the Canton of
Basel-Landschaft to continue the investigations as the offence at
issue had been committed there. Following an exchange of opinions,
the District Office (Statthalteramt) at Arlesheim in the Canton of
Basel-Landschaft assumed jurisdiction with regard to the offence of
false suspicion, whereas the Public Prosecutor's Office
(Staatsanwaltschaft) of the Canton of Aargau decided to continue the
proceedings instituted in Aargau.
The applicant requested the Federal Court (Bundesgericht) to
order that the authorities of the Canton of Basel-Landschaft or,
alternatively, of the Canton of Zurich should conduct all the
proceedings concerned.
According to Section 263 para. 3 of the Federal Code
of Criminal Procedure (Bundesstrafprozessordnung), "the Indictment
Chamber of the Federal Court may in the case of various concurring
offences determine the jurisdiction in a way which deviates from what
is provided in Section 350 of the Swiss Penal Code" ("Die
Anklagekammer des Bundesgerichts kann die Zuständigkeit beim
Zusammentreffen mehrerer strafbarer Handlungen anders als in Artikel
350 des Schweizerischen Strafgesetzbuches bestimmen."). Section 350
of the Penal Code states that, if a person is being prosecuted for
offences committed at different localities, jurisdiction will fall to
the authority of the locality where the offence leading to the most
severe punishment has been committed; if all offences are threatened
with the same punishment, jurisdiction falls to the authority where
the investigations first commenced.
On 2 May 1990 the Indictment Chamber dismissed the request.
It found that in determining jurisdiction the importance of a well
functioning criminal procedure and the interests of the accused in a
speedy and correct implementation of penal law had to be considered.
The Indictment Chamber noted that the applicant had since 1984 not
called in question the jurisdiction of the Aargau authorities until he
had been informed of the proceedings concerning false accusation. This
recent offence was threatened with a more severe punishment.
Nevertheless, it did not call for the jurisdiction of the Canton of
Basel-Landschaft in respect of all offences. Thus, the criminal
denunciations had been written in Basel-Landschaft. Moreover, the
applicant had already been indicted in the proceedings in Aargau.
There was also no connection between the two offences. In view of the
prospective expiration (Verjährung) of the proceedings the Indictment
Chamber found it to be procedurally efficient (prozessual zweckmässig)
to conduct the criminal proceedings against the applicant separately.
COMPLAINTS
The applicant complains that he is not being tried by a court
"established by law" within the meaning of Article 6 para. 1 of the
Convention. He alleges that Section 263 para. 3 of the Federal Code
of Criminal Procedure leaves too big a margin of appreciation to the
Indictment Chamber of the Federal Court when determining criminal
jurisdiction.
THE LAW
The applicant complains that Section 263 para. 3 of the
Federal Code of Criminal Procedure leaves too big a margin of
appreciation to the Indictment Chamber of the Federal Court when
determining criminal jurisdiction. For this reason, the criminal
proceedings instituted against him are not being conducted before a
"tribunal established by law" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
According to the Commission's case-law, it is the purpose of
the requirement in Article 6 para. 1 (Art. 6-1) of the Convention that
courts shall be "established by law" that the judicial organisation in
a democratic society must not depend on the discretion of the
Executive, but that it should be regulated by law emanating from
Parliament. However, Article 6 para. 1 (Art. 6-1) does not require the
legislature to regulate every detail in this area by formal Act of
Parliament if the legislature establishes at least the organisational
framework for the judicial organisation (see Zand v. Austria, Comm.
Report 12.10.78, D.R. 15 p. 80).
The Commission further notes that in the present case the
jurisdiction concerning the offences with which the applicant was
charged was originally established in the Canton of Aargau. There is
no indication that the applicant contested this jurisdiction.
At a later stage in the proceedings concurring jurisdictions
arose. However, Article 6 (Art. 6) of the Convention does not grant
an accused the right to choose the jurisdiction of a court. Rather,
in such circumstances the Commission's task is limited to examining
whether reasonable grounds existed for the authorities to establish
one of the various jurisdictions and whether their decision was
lawful.
In the present case the Commission notes that the Indictment
Chamber of the Federal Court was acting within the confines of Section
350 of the Swiss Penal Code which determines penal jurisdiction in the
case of concurring offences and of Section 263 of the Federal Code of
Criminal Procedure which grants the Indictment Chamber the
possibility, with regard to concurring offences, to determine another
jurisdiction.
Moreover, the Commission does not consider it unreasonable if
the Indictment Chamber, when interpreting these provisions and
determining the jurisdiction of the various courts, noted that the
offence of false accusation was of recent date, and that in the
interests of procedural economy and in view of the applicant's
previous indictment in the Canton of Aargau, the proceedings should be
conducted by two different authorities.
In these circumstances the Commission finds no indication that
the criminal proceedings instituted against the applicant are not
being conducted by a tribunal "established by law" within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that the
application is manifestly ill-founded within the meaning of Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
unanimously DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy