AS TO THE ADMISSIBILITY OF
Application No. 26899/95
by H. B.
against Switzerland
The European Commission of Human Rights sitting in private on
18 September 1997, the following members being present:
Mrs. J. LIDDY, Acting President
Mr. S. TRECHSEL
Mrs. G.H. THUNE
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
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
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 17 March 1995 by
H. B. against Switzerland and registered on 28 March 1995 under file
No. 26899/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
25 February 1997 and the observations in reply submitted by the
applicant on 15 May 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swiss citizen born in 1959, is a businessman
residing in Küsnacht in Switzerland. Before the Commission he is
represented by Mr L. Erni, a lawyer practising in Zürich.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
On 12 May 1993 the applicant was arrested on the premises of his
company and detained on remand in Solothurn.
On the same day the investigating judge (Untersuchungsrichter)
of the Canton of Solothurn informed him that he was suspected of having
committed the offences of forging documents, of fraudulently obtaining
a false document, of disloyal management, and of giving incorrect
information as to commercial companies (Urkundenfälschung, Erschleichen
einer Falschbeurkundung, ungetreue Geschäftsführung und unwahre Angaben
über Handelsgesellschaften), and that there existed a danger of
collusion. According to the minutes, the applicant was informed that
contacts with his lawyer were not allowed.
Also on 12 May 1993 the investigating judge issued an order
according to which the applicant's company offices and house were to
be searched. The order also stated that the applicant's lawyer was not
allowed to consult the case-file, or to participate in the taking of
evidence, and he was not to see or to speak with the applicant.
Still on 12 May 1993 the applicant complained in writing of his
arrest and detention to the Court of Appeal (Obergericht) of the Canton
of Solothurn.
On 15 May 1993 the investigating judge noted that part of his
order of 12 May 1993, in particular the lawyer's prohibition to see or
speak with the applicant, had been drafted erroneously under stress,
and he amended this part of the order.
On 17 May 1993 the applicant was visited by his lawyer. He was
also questioned by the police, though he refused to reply. He insisted
that he should first duly be informed of the charges laid against him.
On 17 May 1993 in the afternoon the investigating judge informed
the applicant that the charges concerned an increase of capital of the
B. company in 1991, the balance sheet of 1991 and the accusation of
disloyal management of the B. company.
On 18 May 1993 the applicant's lawyer filed an appeal with the
Court of Appeal against the applicant's arrest and detention. Therein
he requested the applicant's release, and the lifting of all
restrictions of his defence rights. He further complained that he had
not been informed in any concrete manner of the offences laid against
him. The applicant's lawyer also complained that the applicant had not
been heard by a "judge or other officer" within the meaning of
Article 5 para. 3 of the Convention; thus, the investigating judge
concerned was in a position to refer certain cases to trial (see below,
Relevant domestic law and practice).
On 18, 19 and 22 May 1993 the applicant was again questioned.
No further information was given as to the reasons for detention.
On 22 May 1993 the applicant was released from detention on
remand.
As from 16 September 1993 the applicant and his lawyer were
permitted to consult the case-file.
On 4 October 1993 the Court of Appeal struck the applicant's
appeals of 12 and 18 May 1993 off its list of cases as having lost
their purpose (als gegenstandslos abgeschrieben). The Court referred
to the case-law of the Federal Court (Bundesgericht) as to the
requirement in such cases of an applicant's legitimation according to
S. 88 of the Federal Judiciary Act (Organisationsgesetz; see below,
Relevant domestic law and practice). The Court found that the
applicant had meanwhile been released from detention and that he
therefore lacked a practical interest in his appeal.
The applicant filed a public law appeal (staatsrechtliche
Beschwerde) with the Federal Court in which he complained that the
Court of Appeal had struck the appeal off its list of cases. He also
complained about his detention on remand, the limitations of his
defence rights, and that the position of the investigating judge
breached Article 5 para. 3 of the Convention.
On 26 January 1994 the investigating judge filed observations
with the Federal Court on the applicant's public law appeal. With
regard to the grounds of detention, he stated that, in view of the
applicant's previous contacts with other persons concerned, it could
subsequently be assumed that he, the applicant, would with great
probability have known quite clearly which charges were laid against
him (mit grosser Wahrscheinlichkeit ziemlich genau wusste, was ihm
vorgeworfen wurde).
On 2 September 1994 the Federal Court dismissed the public law
appeal, the decision being served on 21 September. The Court
considered at the outset that it was not in a position to examine in
substance the applicant's complaints about his detention on remand, as
the Court of Appeal had not previously examined the matter and the
applicant had not, therefore, complied with the requirement as to the
exhaustion of cantonal remedies.
The Federal Court then examined, with reference to its own case-
law (see below, Relevant domestic law and practice), whether or not the
applicant was entitled under S. 88 of the Federal Judiciary Act to file
a public law appeal. The Federal Court refused to grant the applicant
standing, noting, inter alia, that the Court of Appeal had itself
stated that it would be able again to examine in a later case whether
or not the investigating judge of the Canton of Solothurn complied with
the requirements of Article 5 of the Convention. The Federal Court
found that the applicant was free to file an application with the
Commission, though certain practical problems might arise under
Article 26 of the Convention as to the exhaustion of domestic remedies
and the time-limit.
On 13 February 1995 the applicant filed a civil action with the
Federal Court against the Canton of Solothurn, claiming compensation
for unlawful detention. The proceedings are currently pending before
the Federal Court.
B. Relevant domestic law and practice
a. Federal Judiciary Act (Organisationsgesetz)
S. 88 of the Federal Judiciary Act concerns an applicant's
legitimation to file a public law appeal (staatsrechtliche Beschwerde)
and states, insofar as relevant:
"Citizens (private persons) ... have the right to file an appeal in respect of those breaches of law, which they have suffered on the basis of laws or orders which are generally applicable or personally concern them." "Das Recht zur Beschwerdeführung steht Bürgern (Privaten) ... bezüglich solcher Rechtsverletzungen zu, die sie durch allgemein verbindliche oder sie persönlich treffende Erlasse oder Verfügungen erlitten haben." The Federal Court has frequently interpreted S. 88 of the Federal Judiciary Act in the context of matters of detention on remand (see ATF According to this case-law, S. 88 requires an actual and practical interest of the applicant in the quashing of the contested act. This requirement ensures that the Federal Court will examine concrete and not merely theoretical issues, and thus serves procedural economy. Once a person has been released from detention, he no longer has an actual practical interest in the examination of his appeal for release from detention. The persons concerned can still claim damages based on cantonal procedural rules and on Article 5 para. 5 of the Convention. Exceptionally, the Federal Court will renounce the requirement of an actual practical interest if the contested interference could at any time be repeated (wenn der gerügte Eingriff sich jederzeit wiederholen könnte); if there is a sufficient public interest in the examination of the question; and if in the circumstances of the case the matter could rarely be examined on time. Thus, the Federal Court has examined, after a person's release from detention, for instance, the issue of detention of very short duration; the possibilities of an appeal upon arrest; the issue of the same person imposing detention on remand and later filing the bill of indictment; the monitoring of the communications between the accused and his lawyer; and the length of review proceedings. b. Code of Criminal Procedure (Strafprozessordnung) of the Canton of Solothurn According to SS. 88 ff of the Code of Criminal Procedure of the Canton of Solothurn, the investigating judge will conduct the preliminary investigations, though he does not represent the Public Prosecutor's Office, and he cannot file a bill of indictment. On the other hand, the investigating judge may in certain cases which have been dealt with, for instance, by a District Court (Amtsgericht), refer a case to trial (Überweisungsverfügung), if the Public Prosecutor's Office is not called upon to prepare the indictment. COMPLAINTS Under Article 5 para. 2 of the Convention the applicant complains that he was not duly and sufficiently informed of the grounds for his detention. He was not even informed on 17 May 1993 when he was questioned by the police. Still on 18 May 1993 his lawyer was not in a position to challenge the grounds of detention and the suspicion levelled against the applicant. Under Article 5 para. 3 of the Convention the applicant complains, with reference to the case of Huber v. Switzerland (Eur. Court HR, judgment of 23 October 1990, Series A no. 188) of the position of the investigating judge of the Canton of Solothurn who may refer a case to trial, and who is under the instructions of the Public Prosecutor's Office. Under Article 13 of the Convention the applicant complains that he did not have an effective remedy at his disposal to complain about his detention on remand. The only remedy available was the appeal to the Court of Appeal of the Canton of Solothurn, which he employed. However, both the Court of Appeal and the Federal Court did not examine the complaint in substance in view of the applicant's release from detention. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 17 March 1995 and registered on 28 March 1995. On 27 November 1996 the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 25 February 1997. The applicant replied on 15 May 1997. THE LAW 1. The applicant complains under Article 5 para. 2 (Art. 5-2) of the Convention that he was not duly and sufficiently informed of the grounds for his detention. Under Article 5 para. 3 (Art. 5-3) of the Convention the applicant complains of the position of the investigating judge of the Canton of Solothurn who may refer a case to trial, and who is under the instructions of the Public Prosecutor's Office. Under Article 13 (Art. 13) of the Convention the applicant complains that he did not have an effective remedy at his disposal to complain about his detention on remand. 2. The Government contend that the applicant has not complied with the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies. Thus, the applicant lacked legitimation according to S. 88 of the Federal Judiciary Act. In this respect, reference is made in particular to the Federal Court's constant case-law, for instance ATF 110 Ia 140. According to this case-law, the Federal Court will not examine the complaint of a person after his release from detention, as he no longer has an actual practical interest in the examination of his appeal. This case-law does not have the purpose of limiting a detained person's legal protection. Rather, it is justified as the person has other procedures at his disposal in which he can complain of the unlawfulness of his detention. The Government submit, with reference to various examples, that in cases such as the present one there is the possibility of filing an action for compensation. This remedy complies with the case-law of the Convention organs according to which such remedies must be "available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice" (see Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, para. 66, to be published in Reports of Judgments and Decisions, 1996). The Government recall that such an action for compensation may be based directly on Article 5 para. 5 (Art. 5-5) of the Convention, and it may serve to obtain compensation for both material and immaterial damage. Furthermore, the procedures fall under the protection of Article 6 para. 1 of the Convention. With such an action the applicant may allege the unlawfulness of his detention which is a condition for obtaining compensation. Indeed, in the present case the applicant filed precisely such an action against the Canton of Solothurn before the Federal Court. This action is currently pending. The applicant contends that the action for compensation which he has filed does not prevent the Commission from examining the present application. Those proceedings also concerned various other issues, for instance the length of detention and the applicant's contacts with his lawyer, whereas the present application concerns an alleged breach of Article 5 paras. 2 and 3 (Art. 5-2, 5-3) of the Convention. The applicant submits that Article 26 (Art. 26) of the Convention permits a State to remedy an alleged violation. If the State is offered the possibility but does not do so, this cannot then serve as an objection that the applicant has not exhausted domestic remedies. In the present case, both the Court of Appeal of the Canton of Solothurn and the Federal Court had the possibility of examining the applicant's complaints, since the Federal Court's case-law envisages certain conditions where the requirement of an actual practical interest can be renounced, for instance where the contested interference could at any time be repeated. Article 13 (Art. 13) of the Convention aims at preventing the situation where a domestic court wishes to bar the applicant's access to the Convention organs by not examining his complaint in substance. The applicant claims that in the present case the remedies which he employed were the only available ones. They were not without prospects of success, since the Federal Court had the possibility of examining the appeal. As a result, the time-limit of six months must be calculated as from the date of the final decision of the Federal Court. Whether or not Article 26 (Art. 26) has been complied with must be examined independently of other remedies which are at the applicant's disposal. Under Article 26 (Art. 26) of the Convention "the Commission may only deal with (a) matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ..." According to the Convention organs' case-law the rule of exhaustion of domestic remedies referred to in Article 26 (Art. 26) of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 (Art. 13) of the Convention - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system (see Eur. Court HR, Akdivar v. Turkey judgment, op. cit., para. 65). Under Article 26 (Art. 26) normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. Article 26 (Art. 26) also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements (see Eur. Court HR, op. cit., para. 66). In the present case, the Court of Appeal of the Canton of Solothurn on 4 October 1993 struck the applicant's appeals of 12 and 18 May 1993 off its list of cases as having lost their purpose since the applicant had been released from detention and, therefore, lacked a practical interest in his appeal. The Court thereby referred to the Federal Court's case-law on the matter. Upon the applicant's public law appeal, this decision was upheld on 2 September 1994 by the Federal Court. The Commission observes that, in his appeals of 12 and 18 May 1993, the applicant raised the complaints which he is now raising before the Commission. It is undisputed that the remedies employed by the applicant were effective in that, had they been successful during the applicant's detention on remand, the applicant would have been released. The Court of Appeal of the Canton of Solothurn could nevertheless have entered into an examination of the applicant's appeals on the grounds established in the Federal Court's case-law. According to this case-law, the appeal of a detained person who has meanwhile been released may be examined if the contested interference could at any time be repeated; if there is a sufficient public interest in the examination of the question; and if in the circumstances of the case the matter could rarely be examined on time. In the present case, however, the Court of Appeal of the Canton of Solothurn decided to strike the appeals off its list of cases, thus concluding that the grounds established in the Federal Court's case-law had not been met. The Federal Court upheld this decision. The Commission considers that the examination of an appeal in such cases will depend on an assessment by the domestic courts concerned of the grounds established in the Federal Court's case-law. The examination of the case thus lies outside the responsibility of the person concerned. In particular, it cannot be said that the present applicant failed to comply with any formal requirements for filing his appeals. In the Commission's opinion, moreover, it is not possible for the person concerned to foresee how the courts concerned will assess in his particular case the grounds established in the Federal Court's case-law. As a result, the applicant complied with the requirements under Article 26 (Art. 26) of the Convention by first employing the remedies provided by the national legal system. The Swiss authorities were thus provided the opportunity to put matters right through their own legal system, though they chose not to do so for reasons for which the applicant could not be held responsible. In view thereof, it is unnecessary further to examine whether the applicant should have introduced, in addition and on the basis of Article 5 para. 5 (Art. 5-5) of the Convention, an action for compensation for unlawful detention, and whether the applicant's current action, pending before the Federal Court since 1995, would meet the requirements of Article 26 (Art. 26) of the Convention in the present case. As a result, the application cannot be declared inadmissible for non-exhaustion of domestic remedies. 3. The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. H.C. KRÜGER J. LIDDY Secretary Acting President to the Commission of the Commission
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