AS TO THE ADMISSIBILITY OF
Application No. 24544/94
by Alain HENZI
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
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 24 January 1994
by Alain Henzi against Switzerland and registered on 6 July 1994 under
file No. 24544/94;
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 national born in 1950, resides in
Coulanges, France. Before the Commission he is represented by Mr.
François Boudry, a lawyer practising in Lausanne.
Particular circumstances of the case
The facts of the case as submitted by the applicant may be
summarised as follows.
Between 1983 and 1986 the applicant ran a stable for ponies in
Aveyron, France and since 1986 continued his activities in Neyex à Bex,
Switzerland. He worked at the stable with his wife and also used the
help of trainees, whom he recruited through advertisements in the
newspapers. The trainees, all of them girls between fifteen and twenty
years old, lived in rooms at the stable.
On 17 August 1990, after nearly eleven months of preliminary
investigation, the Aigle District judge (Juge informateur de
l'arrondissement d'Aigle) committed the applicant for trial on charges
of sexual abuse. The bill of indictment listed numerous events, which
had happened between 1983 and 1989 and concerned the applicant's sexual
relationships with two and his assaults against ten of the trainees.
On these grounds the applicant was indicted for aggravated indecent
assault against children of less than sixteen years of age and indecent
assault against minors of more than sixteen years of age under Section
191 paras. 1 and 2 and Section 192 para. 2 of the Penal Code as
applicable at that time.
On 1 July 1991 the Aigle District Court (Tribunal correctionnel
du district d'Aigle) convicted the applicant. On 4 November 1991 this
judgment was quashed by the Vaud Cantonal Cassation Court (Cour de
cassation pénale du Tribunal cantonal du canton de Vaud) and the case
was sent to the Nyon District Court (Tribunal correctionnel du district
de Nyon).
On 29 January 1992, before the Nyon District Court had begun the
examination of the case, the prosecution authorities submitted to the
Court and to the applicant's defence counsel a request for the
aggravation of the accusation.
The request stated inter alia that the facts of the case, as
described in the bill of indictment, were conclusive also of a crime
under Section 192 para. 1 of the Penal Code. This was so as some of
the trainees between 16 and 20 years of age were in fact entrusted to
the applicant by their parents and therefore the sexual assaults
qualified as aggravated. Furthermore, one of the incidents with the
trainee E., as described in the evidence obtained at the preliminary
investigation, had all the elements of rape and therefore Section 187
para. 1 of the Penal Code had to be applied. Also, some of the
assaults had to be qualified under Section 191 para. 2 instead of
Section 192 para. 2 because the victims were less than 16 years old at
the time of the assaults. Finally, the evidence obtained at the
preliminary investigation disclosed that the applicant had again
assaulted the trainee C. in 1986, whereas the indictment referred only
to a period of time between 1984 and 1985.
On 13 April 1992, upon the opening of the hearing before the Nyon
District Court, the representative of the prosecution authorities
repeated the request of 29 January 1992. In response the applicant's
lawyer stated that the case should be returned to the investigating
judge because the accusation had been aggravated in the proceedings
before the Aigle District Court; and also because the applicant had
been entitled to an examination by the investigation judge of any new
charges, to a new decision for committal to trial and to an appeal
against such a decision. The Court dismissed these arguments by
stating that the proceedings before the Aigle District Court were
annulled and without any legal effect; that the prosecutor's request
concerned only new legal qualifications of facts already examined at
the preliminary investigation; and that therefore the applicant's
defence rights were not affected. Based on this reasoning and on the
conclusion that the relevant procedural requirements had been met, the
Court accepted the amendment of the bill of indictment as requested by
the prosecution authorities. Thereupon the president of the Court
asked the applicant whether he wanted the case adjourned for the
preparation of his defence. The applicant replied that he did not wish
to avail himself of this opportunity.
The hearing continued with the examination of the victims. At
a certain point the prosecutor requested another modification of the
accusation. This was necessary because after one of the victims had
been heard before the Court, it had become clear that an incident with
her amounted to an attempt to have a full sexual relationship with a
child under sixteen years of age and therefore qualified under another
section of the Penal Code. The applicant's lawyer repeated the
objections he had against the first amendment of the accusation.
Thereupon the Court admitted the aggravation referring to its previous
reasoning on the issue and again invited the applicant to state whether
he would need some time to defend himself against the modified charges.
As the applicant again answered in the negative, the Court continued
with the examination of the case.
During the next day of the hearing a third similar modification
of the accusation occurred, again followed by the applicant's refusal
to have the case adjourned for purposes of his defence.
On 21 April 1992 the Nyon District Court convicted the applicant
and sentenced him to four years' imprisonment. On 31 October 1992 the
Vaud Cantonal Cassation Court rejected the applicant's appeal.
On 12 February 1993 the applicant submitted a public law appeal
before the Federal Court (Tribunal Fédéral). He stated that the
modification of the indictment breached his defence rights, because new
facts and new legal qualifications had been brought against him without
a decision for committal to trial and hence without giving him the
opportunity to defend himself and to appeal against such a decision.
Furthermore, the fact that the Nyon District Court accepted the
amendment of the indictment and immediately afterwards convicted him
was contrary to the principle of impartiality. This was so because by
accepting the motion for aggravation of the accusation, the judges had
in fact formed a preconceived opinion on the case. The applicant
invoked, inter alia, Article 6 of the Convention.
On 28 July 1993 the Federal Court rejected the applicant's public
law appeal. The Court stated that there had been no change in the
facts of the indictment as the facts which served as grounds for the
aggravation request had been described either in the original
indictment or elsewhere in the evidence, contained in the case-file.
Moreover the applicant had been heard on all of those facts during the
preliminary investigation. It was only the legal qualification of
known facts which had been modified and as the applicant had not
availed himself of the opportunity to have the case adjourned for the
preparation of the defence, there had been no violation of the
applicant's defence rights.
Addressing the applicant's argument about the partiality of the
judges, the Federal Court stated that the mere acceptance by the Nyon
District Court of the motion for aggravation of the accusation could
not cast doubts as to its impartiality. Furthermore, the Court had not
acted ex officio, but on the request of the prosecution authorities.
To return the case for a new decision to commit the applicant for trial
would have been a mere formality.
Relevant domestic law
The relevant provisions of the Penal Code, in their version in
force at the time of the events at issue, state as follows:
Section 187
"(1) Celui qui en usant de violence ou de menace grave,
aura contraint une femme à subir l'acte sexuel hors mariage sera
puni de la réclusion;
(...)"
Section 191
"(1) Celui qui aura fait subir l'acte sexuel ou un acte
analogue à un enfant de moins de seize ans sera puni de la
réclusion ou de l'emprisonnement pour six mois au moins;
(2) La peine sera la réclusion pour deux ans au moins si
la victime est l'élève, l'apprenti ou le domestique du
délinquant, ou si elle est son descendant, son enfant adoptif,
l'enfant de son conjoint, son pupille ou un enfant confié à ses
soins."
Section 192
"(1) Celui qui aura commis l'acte sexuel avec une personne
mineure âgée de plus de seize ans qui est son enfant adoptif,
l'enfant de son conjoint, qui a été confié à ses soins, ou qui
est son pupille, son élève ou son apprenti, ou avec son
domestique âgé de plus de seize ans, mais de moins de dix-huit
ans, sera puni de la réclusion pour cinq ans ou plus ou de
l'emprisonnement pour trois mois au moins;
(2) Celui qui aura commis un autre acte contraire à la
pudeur sur une personne mineure âgée de plus de seize ans qui
est son descendant, son enfant adoptif, l'enfant de son
conjoint, qui a été confié à ses soins, ou qui est son pupille,
son élève ou son apprenti, ou avec son domestique âgé de plus de
seize ans, mais de moins de dix-huit ans, celui qui aura
entraîné une de ces personnes à commettre un acte contraire à la
pudeur, sera puni de la réclusion pour trois ans ou plus ou de
l'emprisonnement."
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 3(b) of the
Convention that new facts and new legal qualifications had been
accepted for examination by the Nyon District Court without a fresh
decision for committal to trial. As a result, the applicant's right
to be heard on all accusations at a preliminary investigation stage
was violated. Also, he was deprived of the opportunity to appeal
against the aggravation of the accusation, an opportunity which he
would have had if the case had been returned for a decision for
committal to trial.
Furthermore, the fact that the Nyon District Court accepted the
amendment of the indictment and immediately afterwards convicted the
applicant was contrary to the principle of a double examination by the
investigation authorities and the trial court and to the principle of
division between the judge who commits for trial and the trial judge.
As a result, there were doubts as to the impartiality of the Court.
This was so because by accepting the motion for aggravation of the
accusation, the judges had in fact formed an opinion on the case.
THE LAW
1. The applicant complains under Article 6 paras. 1 and 3 (b)
(Art. 6-1, 6-3-b) of the Convention of the alleged violation of his
defence rights and the lack of impartiality of the Nyon District
Court. Article 6 paras. 1, 3 (a) and (b) (Art. 6-1, 6-3-a, 6-3-b) of
the Convention, insofar as relevant, state as follows:
"1. In the determination of (...) any criminal charge
against him, everyone is entitled to a fair (...) hearing
(...) by an independent and impartial tribunal (...)
(...)
3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly (...) and in detail of the
nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation
of his defence;
(...)"
2. As the requirements of paragraph 3 of Article 6 (Art. 6-3) are to
be seen as particular aspects of the right to a fair trial guaranteed
by paragraph 1, the Commission will examine the complaints under both
paragraphs taken together (cf. F.C.B. v. Italy judgment of 28 August
1991, Series A no. 208-B, p. 20, para. 29).
The Commission recalls its case-law according to which an accused
person has the right to be informed not only of the grounds for the
accusation, that is, not only of the acts with which he is charged and
on which the indictment is based, but also of the nature of the
accusation, namely the legal classification of the acts in question.
In addition, because of the logical link between subparagraphs 3(a) and
(b) of Article 6 (Art. 6-3-a, 6-3-b), the information about the nature
and cause of the accusation must be adequate to enable the accused to
prepare his defence accordingly (No. 524/59, Dec. 19.12.60, Yearbook
3 pp. 322, 344; No 8490/79, Dec. 12.3.81, D.R. 22 p. 140). One element
to be considered is whether the accused himself has requested
adjournment of the hearing in order adequately to prepare his defence
(Eur. Court H.R., Campbell and Fell judgment of 28 June 1984, Series
A no. 80, p. 45, para. 98).
In the present case the applicant was informed of the
aggravation of the accusation at least two months before the hearing
of the case and, in respect of two additional changes, in the course
of the hearing. The Commission notes that the changes concerned
exclusively a new legal qualification of known evidence, albeit, as
regards only the two supplementary modifications, prompted by the
version of the facts presented by the victims before the Court.
Insofar as the amended accusation contained facts, which were not
stated in detail in the initial bill of indictment, these facts had
been derived from the evidence in the case-file. The applicant does
not contest that he had full knowledge of the case-file.
Furthermore, the Court expressly asked the applicant whether he
wished to have the case adjourned for the preparation of his defence,
but he declined, insisting that the case should be returned back to the
investigation authorities.
The applicant, therefore, had the possibility adequately to
defend himself.
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.
3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Nyon District Court was not impartial because it
formed a preconceived opinion on the case while examining the requests
for aggravation of the accusation and soon thereafter convicted the
applicant.
The Commission recalls the Convention organs' case law, according
to which the guarantee of impartiality under Article 6 para. 1
(Art. 6-1) of the Convention may be assessed by means of a subjective
approach, by endeavouring to ascertain the personal conviction of a
given judge in a particular case, or by an objective approach, by
determining whether he offered sufficient guarantees to preclude any
legitimate doubt in this respect (Eur. Court H.R., Piersack judgment
of 1.10.1982, Series A no. 53, pp. 14-15, para. 30).
In the present case the applicant has not expressly questioned
the judges' personal impartiality in any way. The applicant
nevertheless claims that the Nyon District Court could not have been
objectively impartial as it convicted him after having decided on the
motions for modification of the accusation. The Commission must
therefore analyse the role of the Court when accepting the
prosecution's requests for aggravation of the accusation and the extent
to which the decisions taken on these requests could indicate a
preconceived opinion on the guilt of the accused (see Eur. Court H.R.,
De Cubber judgment of 26.10.1984, Series A no. 86, pp. 14, para. 26;
Ben Yaacoub judgment of 27.11.1987, Series A no. 127, pp. 11-16, paras.
98-114).
The Commission notes that the admission of the motions for
aggravation of the charges concerned exclusively new legal
qualifications of known evidence. This act of the Court was not and
could not have been the result of any assessment of the reliability of
the relevant evidence or any opinion of the Court on the applicant's
guilt in respect of the charges against him.
It follows that the remainder of the application is also
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