AS TO THE ADMISSIBILITY OF
Application No. 23149/93
by G.G.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 6 September 1995, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 1 October 1993 by
G.G. against Switzerland and registered on 22 December 1993 under file
No. 23149/93;
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, a computer scientist, is a Swiss national born in
1945 and residing in Lausanne. Before the Commission he is represented
by Mr. Jean Lob, a lawyer practising in Lausanne.
On 11 August 1993 the applicant was arrested by order of the
Prosecutor General (Procureur général de la Confédération suisse). He
was suspected of having collaborated with Soviet intelligence agents
between 1979 and 1992 and having revealed technological information to
which he had access by virtue of his professional activities.
On the day of the arrest the applicant was questioned for several
hours at a police station. In the evening he was transferred to a
prison.
On 12 August 1993, the morning following the arrest, the
applicant requested a lawyer and demanded to be released. It was
agreed between the applicant and the investigating police officer that
the applicant's wife would choose and contact a lawyer and that the
applicant would petition the Prosecutor General in writing for his
release.
In the afternoon a lawyer chosen by the applicant's wife brought,
for the applicant to sign, a power of attorney and a petition for
release addressed to the Prosecutor General. The applicant signed
these documents.
On 13 August 1993, the request for release and a request for
permission for the lawyer to visit his client were refused by the
Prosecutor General. The decision stated inter alia that the
investigation had just begun, that it was necessary to question the
applicant further and that, in view of the fact that the circle of
persons involved in the alleged collaboration was still unknown, there
was a danger of collusion.
Also, in a telephone conversation with the applicant's lawyer,
the prosecutor in charge of the case allegedly declined to assure him
that his correspondence with his client would not be examined by the
authorities.
Thereupon the lawyer telephoned his client in prison and informed
him that he had been refused authorisation to visit him during the
coming weekend.
On 16 August 1993 the applicant's lawyer submitted a complaint
to the Ministry of Justice (Département Fédéral de Justice et Police)
challenging the decision of the Prosecutor General.
On 19 August 1993 the Ministry of Justice informed the lawyer
that in view of a recent change in the legislation, they had requested
an opinion from the Federal Court (Tribunal fédéral) about their
competence to examine the complaint. On 23 August 1993, after the
Federal Court had found that the issue was within its competence, the
applicant's lawyer submitted his observations and a formal complaint
to the Court.
In the meantime the applicant was interrogated for several hours
each working day.
On Monday, 16 August 1993 two letters from the lawyer dated
13 and 16 August 1993 and a copy of the decision of the Prosecutor
General of 13 August 1993 were delivered to the applicant.
On the morning of 26 August 1993 the applicant received a letter
from his lawyer dated 23 August 1993.
In the evening of the same say he was released by order of the
Prosecutor General.
On 15 September 1993 the Federal Court struck out of its list the
applicant's complaint concerning the refusal of the Prosecutor General
to release him and to authorise his lawyer's visits as it had become
without object.
On 14 February 1995 the Prosecutor General suspended the
preliminary investigation against the applicant. The decision stated
inter alia that although it had been established that the applicant had
had numerous contacts with Soviet secret agents, there had not been
sufficient proof that the applicant had unlawfully revealed secret
information during these meetings.
Upon the applicant's claim for damages, the Federal Court
(Chambre d'accusation du Tribunal fédéral) on 6 June 1995 awarded the
applicant an indemnity of 200 SF for each day of his detention. The
Court stated that a suspension of criminal proceedings at the
preliminary police inquiry stage could give rise to a claim for damages
whenever the acts of the investigation authorities had involved a
serious prejudice for the accused. Since the detention on remand was
in itself such a serious prejudice, the applicant was entitled to an
equitable indemnity.
COMPLAINTS
The applicant complains under Article 6 para. 3(c) of the
Convention that he was deprived of his right to have contact with his
lawyer during the sixteen days of detention. The refusal of the
authorities to guarantee the privacy of the correspondence between the
applicant and his lawyer during the detention was also contrary to
Article 6 para. 3(c) of the Convention.
The applicant also complains under Article 13 in conjunction with
Article 6 para. 3(c) of the Convention that the decision of the Federal
Court to strike the applicant's appeal out of its list amounted to a
denial of an effective remedy.
THE LAW
1. The applicant complains under Article 6 para. 3(c)
(Art. 6-3-c) of the Convention of the restrictions on contact with his
lawyer and of the authorities' refusal to promise that they would not
monitor the correspondence between him and his lawyer.
Article 6 paras. 1 and 3(c) (Art. 6-1, 6-3-c) provide, insofar
as relevant, as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ...;
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
c. to defend himself in person or through legal
assistance ..."
The Commission recalls that the primary purpose of Article 6
(Art. 6), as far as criminal matters are concerned, is to ensure as a
whole a fair trial by a "tribunal" competent to determine "any
criminal charge". Nevertheless, the requirements of paragraph 3(c) of
Article 6 (Art. 6-3-c) could be relevant in pre-trial proceedings
insofar as the fairness of the trial is likely to be seriously
prejudiced by an initial failure to comply with them (Eur. Court H.R.,
Imbrioscia judgment of 24 November 1993, Series A no. 275, p. 13,
para. 36; cf. also Can v. Austria, Comm. Report 12.7.84, paras. 49,
50, Eur. Court H.R., Series A no. 96, pp. 15, 16).
However, under Article 25 (Art. 25) of the Convention the
Commission may examine complaints only from persons claiming to be
victims of a violation of one of the Convention provisions.
In the present case the applicant's complaints concern an early
stage of the proceedings, namely the police inquiry against him, and
not a "trial" before a "tribunal" within the meaning of Article 6
(Art. 6) of the Convention. The criminal proceedings against the
applicant were suspended at this stage and he has never been indicted
and brought to trial. Therefore, he has not in fact suffered any
detrimental effect of the alleged violations of Article 6 para. 3(c)
(Art. 6-3-c) and he cannot claim to be a victim of such violations.
The Commission has also noted that the applicant has received
compensation for the prejudice entailed by his detention on remand.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Under Article 13 (Art. 13) the applicant complains that he had
no effective remedy at his disposal in respect of the above complaint.
The Commission finds that the applicant has not made out an
arguable claim under Article 6 para. 3(c) (Art. 6-3-c) of the
Convention (cf. Eur. Court H.R., Plattform "Ärzte für das Leben"
judgment of 21 June 1988, Series A no. 139, p. 11 et seq., para. 27 et
seq.).
The remainder 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 APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy