AS TO THE ADMISSIBILITY OF
Application No. 12794/87
by Jutta HUBER
against Switzerland
The European Commission of Human Rights sitting in private
on 9 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on
27 February 1987 by Jutta HUBER against Switzerland and registered
on 13 March 1987 under file No. 12794/87;
- ii -
Having regard to:
- the first report of July 1987 provided for in Rule 40 of the
Rules of Procedure of the Commission;
- the Commission's decision of 7 October 1987 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on the
admissibility and merits of the application;
- the observations submitted by the respondent Government on
18 December 1987 and the reply submitted thereto by the
applicant on 13 April 1988;
- the second Report of May 1988 provided for in Rule 40 of the
Rules of Procedure of the Commission.
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant, a Swiss citizen born in 1958, resides in
Zurich. Before the Commission she is represented by Messrs. E.
Schönenberger and K. Mäder, lawyers practising in Zurich.
I. Particular circumstances of the case
In connection with criminal investigations aginst one Mr. K.
in Hamburg and one Mr. B. in Zurich concerning procuring (Zuhälterei)
and pandering (Kuppelei), the Zurich District Attorney's Office
(Bezirksanwaltschaft) issued an order against the applicant to
appear on 8 August 1983 as witness (Vorführungsbefehl). The order was
signed by the District Attorney D.J.
On 11 August 1983 she was brought by the Zurich Town Police
before the District Attorney's Office where she was interrogated.
Thereby she admitted having lived of the proceeds of prostitution.
However, she stated that she had known Messrs. K. and B. only by name
and that she did not hand over to anybody part of her income as a
prostitute. As a result, the District Attorney D.J. remanded the
applicant in custody on the same day.
According to the warrant of arrest (Verhaftsverfügung) signed
on 11 August 1983 by the District Attorney D.J., there was the urgent
suspicion that members of the group "Hell's Angels" of Zurich and
Hamburg had brought German prostitutes to Zurich. There, in return
for payment, some had married Swiss men. These women had been urged,
partly under threat, to commit professional prostitution whereby the
"Hell's Angels" had protected the women who in turn had given them
part of the proceeds. The applicant was urgently suspected of having
been one of these women. The warrant of arrest stated that as a
witness and under threat of punishment on account of false testimony
she had denied any connection with the "Hell's Angels". The warrant
referred in particular to a danger of collusion and the danger that
evidence would be destroyed. It also stated that an appeal against
the order of arrest could be filed within 48 hours with the Public
Prosecutor's Office (Staatsanwaltschaft) of the Canton of Zurich.
The applicant was released from detention on remand on
19 August 1983.
On 12 October 1984 the Zurich District Attorney's Office
indicted the applicant before the Judge in Criminal Cases at the
Zurich District Court (Einzelrichter in Strafsachen am Bezirksgericht)
on the grounds of false testimony in court proceedings and
alternatively (eventualiter) of the hindrance of criminal proceedings
and postulated a punishment of 5,000-.SF. The bill of indictment was
signed by the District Attorney D.J. who had also signed the warrant
of arrest.
The trial took place on 10 January 1985. According to the
minutes of the trial, the applicant's representative stated as
follows:
"In this case the first thing to note is a violation
of the human right embodied in Article 5 para. 3 (Art. 5-3) of the
European Convention on Human Rights which states that anyone
who is arrested or detained in accordance with the
provisions of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention has to
be brought promptly before a judge or other officer
authorised by law to exercise judicial power. This never
happened in the present case. Rather, the person who
remanded the accused in custody, District Attorney J., is
today at the same time the author of the bill of
indictment. I refer to a comparable application made to the
European Commission of Human Rights in the cases of
Schiesser and [X.] which were published in the journal
'Europäische Grundrechte-Zeitschrift'. In that decision the
condition for a violation of human rights was not met in
view of the fact that the District Attorney who ordered the
arrest was not the person who drew up the bill of
indictment. That case differs from the present one. Be
that as it may, I shall in any event refer this case to the
higher authorities."
"Vorliegend wurde zunächst das in Art. 5 Ziff. 3 der
Konvention zum Schutze der Menschenrechte und
Grundfreiheiten (EMRK) statuierte Menschenrecht verletzt,
wonach jede nach der Vorschrift von Art. 5 Ziff. 1 c) EMRK
festgenommene oder in Haft gehaltene Person
unverzüglich einem Richter oder einem anderen, gesetzlich zur
Ausübung richterlicher Funktionen ermächtigten Beamten
vorgeführt werden muss. Eine solche Vorführung hat
vorliegend nie stattgefunden; vielmehr ist derjenige, der
die Angeklagte in Haft genommen hat, heute gleichzeitig
Ankläger, nämlich der Bezirksanwalt J. Ich verweise auf
eine entsprechende Beschwerde, die an der Europäischen
Menschenrechtskommission in Sachen Schiesser und [X.]
anhängig gemacht worden und in der, Europäischen
Grundrechtezeitschrift, veröffentlicht worden ist. In jenem
Entscheid wurde das Kriterium der Menschenrechtsverletzung
verneint, weil der verhaftende Bezirksanwalt nicht mit dem
anklagenden Bezirksanwalt identisch war, es sich mithin um
einen andersgelagerten Fall als den vorliegenden Fall
gehandelt hatte; ich werde auf jeden Fall diesen Fall
weiterziehen."
On 10 January 1985 the Zurich District Court acquitted the
applicant on the grounds that she had never been invited (vorgeladen)
to an interrogation for which reason her testimony was invalid and
could not be considered. The judgment does not refer to the issues
raised at the trial by the applicant's lawyer under Article 5 para. 3
(Art. 5-3) of the Convention.
Upon appeal (Berufung) by the Public Prosecutor's Office the
Zurich Court of Appeal (Obergericht) on 13 September 1985 convicted
the applicant of attempted false testimony and sentenced her to a fine
of 4,000 SF. The Court found that her testimony was not invalid and
could be used. It further referred to the monitoring of telephone
conversations between the applicant and Mr. K. which had been lawfully
undertaken by the authorities in Germany and the minutes of which had
been transmitted by way of legal cooperation to Switzerland. The
Court concluded on the basis of these minutes that the applicant had
in fact known Messrs. K. and B. The judgment of the Court of Appeal
also refers to the issue under Article 5 para. 3 (Art. 5-3) of the Convention:
"Finally it must be noted that the applicant's
lawyer unjustifiably put forward the objection that in the
context of her arrest and in contravention of Article 5
para. 3 (Art. 5-3) of the Convention the accused had not been brought
before a judge or other officer authorised by law to
exercise judicial power. For, according to the case-law of
the Federal Court, the Zurich District Attorney exercises in
the procedural stage of investigation also judicial power
within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention
(ATF [Arrêts du Tribunal Fédéral] 102 Ia 179)."
"Schliesslich ist festzuhalten, dass der Einwand der
Verteidigung, die Angeklagte sei im Zusammenhang mit ihrer
Verhaftung in Verletzung von Art. 5 Ziff. 3 EMRK keinem
Richter oder einem anderen gesetzlich zur Ausübung
richterlicher Funktionen ermächtigten Beamten vorgeführt
worden, zu Unrecht erfolgte. Nach der Rechtsprechung des
Bundesgerichtes übt nämlich der zürcherische Bezirksanwalt
im Verfahrensstadium der Untersuchung auch richterliche
Funktionen im Sinne von Art. 5 Ziff. 3 EMRK aus (ATF 102 Ia
179)."
The applicant filed a plea of nullity (Nichtigkeits-
beschwerde) which was dismissed by the Zurich Court of Cassation
(Kassationsgericht) on 1 July 1986. The Court found that the issue
under Article 5 para. 3 (Art. 5-3) of the Convention was irrelevant for the
present case. If the applicant therefore challenged the District
Attorney she should have done so already during the investigation.
The applicant then lodged a public law appeal with the Federal
Court (Bundesgericht) in which she complained, inter alia, that,
contrary to Article 5 para. 3 (Art. 5-3) of the Convention, the Zurich District
Attorney had not only remanded the applicant in custody but also
indicted her.
The Federal Court dismissed the applicant's public law appeal
on 24 November 1986. The Court found first that according to S. 90 of
the Federal Judiciary Act (Organisationsgesetz) the substantiation of
a public law appeal has to be included in the appeal statement itself
and that it could not therefore consider the notes of the applicant's
representative in the proceedings concerning the Schiesser case
before the European Court of Human Rights. In respect of the
applicant's complaint under Article 5 para. 3 (Art. 5-3) of the Convention the
Court held:
"As the applicant has long since been released from
detention on remand, she no longer has an actual practical
interest in a response to this complaint for which reason
the Court can no longer deal with it. The objection would in
any event be unfounded since both the Federal Court (ATF 102
Ia 179ff) and the European Court of Human Rights (judgment of
4 December 1979 in the Schiesser case) have declared that the
Zurich District Attorney qualifies in the procedural phase of
the investigation as an 'officer authorised by law to exercise
judicial power' within the meaning of Article 5 para. 3 (Art. 5-3) of the
Convention."
"Nachdem die Beschwerdeführerin längst aus der
Untersuchungshaft entlassen worden ist, hat sie jedoch kein
aktuelles praktisches Interesse mehr an der Behandlung
dieser Rüge, weshalb darauf nicht einzutreten ist. Der
Vorwurf wäre übrigens unbegründet, da sowohl das
Bundesgericht (ATF 102 Ia 179ff.) als auch der Europäische
Gerichtshof für Menschenrechte (Urteil vom 4. Dezember 1979
in Sachen Schiesser) erklärt haben, der zürcherische
Bezirksanwalt sei im Verfahrensstadium der Untersuchung ein
'gesetzlich zur Ausübung richterlicher Funktionen
ermächtigter Beamter' im Sinne von Art. 5 Ziff. 3 EMRK."
The judgment was served on the applicant on 18 December 1986.
II. Relevant domestic law and practice
According to S. 32 of the Judiciary Act (Gerichtsverfassungs-
gesetz, GVG) of the Canton of Zurich of 1976 the District Court
examines as a criminal court all matters not falling within the
jurisdiction of another court. S. 44 and 57 GVG state the various
offences which the Court of Appeal and the Jury Court, respectively,
are competent to decide; they do not include the charges brought
against the applicant.
S. 72 GVG provides that the District Attorney's Office acts as
the indicting authority (Anklagebehörde) at the level of the District
Court, and the Public Prosecutor's Office before the Court of Appeal
and the Jury Court (Geschworenengericht). S. 73 GVG states that the
investigation of offences is conducted by the District Attorney's
Office and the Public Prosecutor's Office. In practice, most
investigations are carried out by the District Attorney. As a rule,
District Attorneys are elected for office by the people for four years
(S. 86 para. 2 GVG).
S. 55 of the Code of Criminal Procedure (Strafprozessordnung,
StPO) of the Canton of Zurich of 1919 authorises the District Attorney to
issue a warrant of arrest. Against the latter an appeal may be filed.
S. 64 StPO obliges the District Attorney to hear an arrested suspect
within twenty-four hours. According to S. 65 StPO, the suspect must
thereby be clearly informed of the reasons prompting the suspicion held
against him.
Detention on remand ordered by the District Attorney may not
exceed 14 days, except if continuation is ordered by the President of
the District Court or of the Prosecuting Chamber (Anklagekammer) of
the Court of Appeal, depending on the jurisdiction of the respective
Court (S. 51 StPO).
Once the investigation has been closed and the prosecution has
not been discontinued, the indicting authority, i.e. the District
Attorney's Office or the Public Prosecutor's Office, commence the main
proceedings (Hauptverfahren) by submitting the bill of indictment (S.
161 StPO). The President of the District Court or of the Prosecuting
Chamber of the Court of Appeal will then decide whether or not to
admit the bill of indictment (S. 165 StPO). S. 178 StPO states:
"The indicting authority is a party to the main
proceedings. It has as such all the rights and duties of a
party.
In his statement the indicting officer should not
one-sidedly confine himself to stressing items that tell
against the accused, but should also take into account items
in his favour."
"Die Anklagebehörde ist im Hauptverfahren
Prozesspartei. Sie hat alle einer solchen zustehenden Rechte
und Pflichten.
Der Ankläger soll bei seinen Vorträgen nicht
einseitig nur dasjenige hervorheben, was den Angeschuldigten
beschweren kann, sondern auch das berücksichtigen, was zu
seinen Gunsten spricht."
The District Attorney remains under the control of the Public
Prosecutor's Office (S. 86 GVG), and the latter is authorised to issue
directives to him (S. 27 StPO). In practice District Attorneys
receive no special orders or instructions from the Public Prosecutor's
Office concerning their powers of placing individuals in detention.
Apart from the power to order arrest and detention and to
interrogate the arrested suspect, the District Attorney has the power
to issue a summons order (Strafbefehl) if the accused has confessed
and admitted his guilt, and if a fine (Busse) or prison sentence of a
maximum of one month is considered to be adequate (S. 317 StPO).
After conviction, S. 419 StPO envisages an appeal to the Court
of Appeal in which complaints can be raised against all defects
(Mängel) both of the investigation and of the procedure (Verfahren) and
the decision of the first instance court.
COMPLAINTS
The applicant now complains that, contrary to Article 5 para.
3 (Art. 5-3) of the Convention, the same District Attorney decided on the
applicant's detention and later also indicted her. Thus the District
Attorney could not be regarded as having been independent within the
meaning of that provision.
In her reply to the Government's observations the applicant
also stated on 13 April 1988, in connexion with her submissions as to
whether she had complied with the conditions of Article 26 (Art 26) of the
Convention, that the Federal Court should also have entered into her
public law appeal in accordance with Article 13 (Art. 13) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 February 1987 and registered
on 13 March 1987.
On 7 October 1987 the Commission decided to bring the application
to the notice of the respondent Government and to invite them pursuant
to Rule 42 para. 2 (b) of the Rules of Procedure to submit observations
on its admissibility and merits, in respect of the complaints under
Article 5 para. 3 (Art. 5-3) of the Convention relating to the functions of the
District Attorney concerned.
The respondent Government's observations were submitted on
18 December 1987 and the reply thereto by the applicant on 13 April 1988.
SUBMISSIONS OF THE PARTIES
A. The respondent Government&-
I. The facts
The Government's submissions as to the facts have been
included in THE FACTS above.
II. General considerations
The Government note that the present application raises the
same issues as those before the Convention organs in the cases of
Schiesser (Eur. Court H.R., judgment of 4 December 1979, Series A No.
34) and X. (No. 8485/79, Dec. 17.3.81, D.R. 22 p. 131 ff). In both
cases, the Convention organs concluded that the Zurich District
Attorney was indeed a "judge or other officer authorised by law to
exercise judicial power" within the meaning of Article 5 para. 3 (Art. 5-3) of
the Convention. This officer was therefore entitled to order
detention on remand.
In the applicant's submissions, however, the present
application differs essentially from the above cases with the result
that that case-law cannot be applied here. In particular, the
District Attorney who ordered her arrest was also the person who later
drew up the bill of indictment. Thus, in the applicant's submission
this officer no longer fulfilled the condition of impartiality.
III. As to the exhaustion of domestic remedies (Article 26 (Art. 26) of
the Convention)
1. According to the Commission's case-law Article 26 (Art. 26) of the
Convention requires the observance of the relevant procedural
requirements under domestic law. Thus, there is no exhaustion of
domestic remedies within the meaning of this provision if a domestic
appeal has been declared inadmissible on account of a failure to
observe a procedural requirement (see No. 6878/75, Dec. 6.10.76, D.R.
6 p. 79 ff).
The Government submit that, in the present case, the
applicant has not observed the procedural conditions prescribed under
Swiss law. S. 90 of the Federal Judiciary Act requires that in
the case of a public law appeal the appeal statement specifying the
constitutional rights or legal principles allegedly violated must
state the relevant grounds. However, the applicant's lawyer merely
referred to the submissions he had made before the European Court of
Human Rights in the Schiesser case. The Swiss Federal Court
considered this to be incompatible with S. 90 of the Federal Judiciary
Act and in its judgment of 24 November 1986 the Court therefore did
not enter into the applicant's public law appeal. The Government
therefore conclude that the applicant has for this reason not
exhausted domestic remedies.
2. The Government submit that also in another respect the
conditions of the exhaustion of domestic remedies within the meaning
of Article 26 (Art. 26) of the Convention have not been fulfilled. According
to the case-law of the Convention organs the applicant must have expounded, at
least in substance, the complaints she intends to raise before the Commission.
As for a State seeking to shelter behind the duty to exhaust remedies, it is
for the State to "establish the existence of available remedies that have not
been utilised by those concerned" (see Eur. Court H.R., Foti and others
judgment of 10 December 1982, Series A No. 56, p. 17 para. 48). Moreover, "the
only remedies which Article 26 (Art. 26) of the Convention requires to be
exercised are those that relate to the breaches alleged and at the same time
are available and sufficient" (see Eur. Court H.R., Van Oosterwijck judgment
of 6 November 1980, Series A No. 40, pp. 13f para. 27). The remedies must
exist with a sufficient degree of certainty, both in practice and in theory,
otherwise they lack the requisite availability and effectiveness (see, mutatis
mutandis, Eur. Court H.R., Van Droogenbroeck judgment of 24 June 1982, Series
A No. 30, p. 30 para. 54). It lies with the respondent Government to
demonstrate that these various conditions have been fulfilled (see Eur. Court
H.R., Deweer judgment of 27 February 1980, Series A No. 35, pp. 15 and 18f,
paras. 26 and 32, respectively).
The Government submit that in the present case the applicant
should therefore have lodged an appeal against her arrest by the
Zurich District Attorney. Here, the Government specify that the
offence of false testimony in connection with procuring falls within
the jurisdiction of the District Attorney and that the arrest of the
applicant was carried out in this context. The applicant should,
therefore, have expected as soon as she was arrested that the officer
who had ordered her arrest would also subsequently, in principle,
decide on the drawing up of the bill of indictment. The Government
refer here to S. 44, 56 and 72 of the Judiciary Act of the Canton of
Zurich.
In this context, the cases of Schiesser and X. mentioned
above are of particular relevance. In the Schiesser case, that
applicant lodged an appeal against the order of arrest, and in the
last instance the Swiss Federal Court delivered its judgment in which
it rejected the applicant's public law appeal. In the case of X. an
appeal was lodged against the decision to extend the detention.
Again, the Federal Court delivered judgment in the last instance in
which it rejected that applicant's public law appeal.
The Government refer to these two cases for a further reason.
The lawyer representing those two applicants is also now representing
the present applicant. He should therefore be particularly well
versed in the problems of the case and the remedies available to him.
Failure to make use of the remedies available is thus even less
excusable.
As regards the circumstances of the present case the
Government note that the applicant was arrested on 11 August 1983. The
arrest order was served on her the same day by the District Attorney,
Mr. D.J., and bears the signature of the applicant. This order
expressly provides for the possibility of an appeal (see THE FACTS
above). However, the applicant did not avail herself of this
possibility and the decision to arrest her has therefore never been
contested.
On 17 August 1983, while still in detention, the applicant
appointed as her representative the lawyer now representing her before
the Commission. On his advice she could, on the basis of Article
5 para. 4 (Art. 5-4) of the Convention, have had the legality of her detention
examined by filing a request for her release, which under Swiss
criminal procedural law is the normal procedure. While the Zurich
Code of Criminal Procedure does not expressly provide for this
procedure, it exists in practice. In accordance with this practice,
the person detained may at any time submit a request for release to
competent examining authorities. In the last instance the Federal
Court, when deciding on a public law appeal, could have pronounced
itself on the legality of this deprivation of freedom. The Government
refer here to various publications of Swiss authors. It is undisputed
that the applicant never requested her release.
The Government thus note that the applicant contested neither
the order of arrest nor the legality of the detention. Clearly,
therefore, the condition of the exhaustion of domestic remedies has
not been complied with.
The Government observe further that the District Attorney D.J.
carried out the whole enquiry in the applicant's case. On 12 October 1984,
he drew up the bill of indictment against the applicant for false
testimony and hindrance of criminal proceedings. Throughout the
procedure before the examining authorities the applicant's lawyer took
no action. He merely participated at the hearing of 27 September 1984.
Throughout this period, no appeal was lodged and the procedure was
never contested as such.
The applicant's lawyer did not invoke a violation of Article 5
para. 3 (Art. 5-3) until the trial on 10 January 1985, i.e. 17 months after the
applicant's arrest and 3 months after the bill of indictment (see
THE FACTS above). In its judgment, the District Court did not go
into the merits of this allegation.
The Zurich Court of Appeal, in considering an appeal lodged by
the Public Prosecutor's Office, confined itself in its judgment of
13 September 1985 to referring in general terms to the case-law of
the Swiss Federal Court, according to which during the investigation the
Zurich District Attorney exercises judicial functions within the meaning
of Article 5 para. 3 (Art. 5-3) of the Convention.
After her conviction by the Court of Appeal on 13 September
1985, the applicant filed a plea of nullity with the Court of
Cassation of the Canton of Zurich. The latter did not in its judgment
of 1 July 1986 consider the merits of the allegation that the District
Attorney was not a judge. It merely stated that any such challenge
should have been made during the investigation. Since no such
challenge had been made, it could no longer revert to the matter.
Nor did the decision of the Federal Court of 24 November 1986
on the applicant's public law appeal go into the merits of the issue
raised under Article 5 para. 3 (Art. 5-3) of the Convention since the applicant
no longer had any actual practical interest to have this issue
determined.
3. The Government thus conclude that before the Federal Court
the applicant did not observe the procedural requirements laid down in
S. 90 of the Federal Judiciary Act, as would be required by domestic
law (see para. 1 above). Moreover, the applicant did not make timely
use of the appropriate legal procedures to contest either the
decision to arrest her or the investigation. Finally the
applicant submitted her complaint based on Article 5 para. 3 (Art. 5-3) of the
Convention at too late a stage, namely during the trial. The
Swiss courts therefore declared this complaint inadmissible (see para.
2 above).
The Government therefore consider that the applicant
has in respect of her present application not complied with the
conditions of the exhaustion of domestic remedies within the meaning
of Article 26 (Art. 26) of the Convention.
IV. As to the well-foundedness of the application
The Government recall that the complaint under Article 5 para.
3 (Art. 5-3) of the Convention is not new insofar as it relates to the Zurich
District Attorney's functions. In the Schiesser case the Government
had ample opportunity to express their views on these issues. The
Government's written observations have been published in Eur. Court
H.R., Series B No. 32. In the light of the above the Government are
convinced that the application is inadmissible for failure to comply
with the requirements of the exhaustion of domestic remedies within
the meaning of Article 26 (Art. 26) of the Convention. The Government refrain
therefore for the time being from expounding any substantive argument,
while respectfully referring the Commission to the various conclusions
published in Series B No. 32, pp. 39-59 and 78-90. However, the
Government reserve the right to revert to the merits of the present
application, should the Commission declare it admissible.
V. Conclusion
On the basis of Articles 26 and 27 para. 3 (Art. 26, Art. 27-3) of the
Convention, the respondent Government invite the Commission to declare the
application inadmissible.
B. The applicant
I. The facts
The applicant's submissions as to the facts have been included
in THE FACTS above.
II. As to the exhaustion of domestic remedies (Article 26 (Art. 26) of
the Convention)
According to S. 419 of the Zurich Code of Criminal Procedure,
an appeal is possible against the investigation as well as the first
instance procedure and judgment. A fortiori this must apply to the
first instance proceedings themselves. The applicant was therefore
free to let the decision to detain her go unchallenged for the time
being. This decision did not acquire legal force. It was possible
and permissible for her to bring the issue up again during the trial.
The applicant doubtlessly and correctly followed the sequence
of domestic remedies. In the context of her public law appeal, the
Federal Court intervened, or should have intervened, in respect of the
complaint concerning the judge ordering detention.
The Federal Court denied the applicant's practical interest
and did not enter into her complaint. However in the next sentence of
its decision the Court, as the Supreme Court handing down judgments
which are nationally binding, stated that the objection lodged would
in any event be unfounded, since both the Federal Court itself and
as the European Court considered that the Zurich District Attorney
acting in the investigation qualified as an officer authorised by law
to exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3)
of the Convention. Once such a statement has been made, it is not possible
afterwards simply to hide behind formal aspects. In actual fact, the Federal
Court stated its position. It is common knowledge that these "in any event"
statements have both in practice and in theory the effect of preliminary
rulings.
The Federal Court's decision not to intervene starkly
contradicts its own practice whereby the Court consistently renounces
the requirement of a current practical interest. In particular, the
Court will examine the complaint, if the intervention complained of
could be repeated at any time, and if in the individual case a timely
constitutional review would hardly ever be possible (kaum je möglich
wäre), so that the requirement of a practical interest would exclude
the review of constitutionality. The applicant refers here to ATF 107
Ia 139 and 108 Ia 42.
However, in most cases persons detained on remand are released
before the Federal Court takes its decision on the application for
release. If this criterion were applied, therefore, applications for
release would largely be denied the possibility of constitutional
review. As a result, the Federal Court regularly enters into public
law appeals concerning the imposition of detention on remand without
applying the requirement of current practical interest. It goes
without saying that this must also apply to applications for release
from detention on remand which have been complained of upon appeal, in
so far as this is admissible under the relevant cantonal code of
criminal procedure, as in the instant case under S. 419.
In accordance with its constitutional importance and
responsibility, the Federal Court as a rule also relinquishes the
requirement of a personal interest where a complaint raises questions
of fundamental importance, where priority must be given to the
discharge of the Federal Court's function as supervisor of the rule of
law, democracy and the Federal State. The applicant submits that the
question of the independence of the judge deciding on detention on remand
within the meaning of the Convention lies at the centre of
constitutional credibility.
In fact, the Federal Court should have entered into the public
law appeal in accordance with Article 13 (Art. 13) of the Convention. Under
that provision, the applicant has the right to an effective remedy
before a national authority when rights or freedoms under the
Convention have been violated, notwithstanding that the violation has
been committed by persons acting in an official capacity. If, when a
Convention violation has been alleged, the Federal Court takes no
action because the violation has ceased in the meanwhile, it renders
the guaranteed legal protection under the Convention devoid of all
effect.
The Federal Court did not conclude that the previous remedies
had been employed incorrectly. The previous cases before the
Convention organs concerning the District Attorney merely demonstrate
that the issue can also be raised independently in appeal proceedings.
The previous cases demonstrate that the complaint may no longer be
raised and taken before a higher court in the context of complaints
concerning the trial.
III. As to the well-foundedness of the complaint under
Article 5 para. 3 (Art. 5-3) of the Convention
The applicant submits that the safeguard of the independence
of judges in a constitutional state is a self-evident truth. In the
present case, the applicant, with the assistance of the municipal
police, was taken on 11 August 1983 to the office of the District
Attorney in Zurich, on the strength of a warrant of arrest issued by
that office, where she was interrogated as a witness. She was then
placed in detention on remand by the District Attorney D.J. On
12 October 1984 the same District Attorney D.J. indicted the applicant
before the Zurich District Court. Thus the same person D.J. was both
the judge deciding on detention on remand and the prosecutor. However,
a prosecutor can never be a judge or an officer authorised by law to
exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of
the Human Rights Convention. The prosecutor is a party.
IV. Conclusion
The applicant appears to request the Commission to declare the
application admissible and to find a breach of Article 5 para. 3 (Art. 5-3)
of the Convention.
THE LAW
1. The applicant complains that the same District Attorney, who
remanded her in custody, later also indicted her. Thus, the District
Attorney could not be regarded as having been independent and was not
"a judge or other officer authorised by law to exercise judicial
power" within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.
The applicant submits that she complied with the conditions of the exhaustion
of domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention. She refers in particular to S. 419 of the Zurich Code of Criminal
Procedure which envisages an appeal after conviction by the District Court to
complain both about defects of the investigation and the trial. The applicant
also draws attention to the decision of the Federal Court of 24 November 1986
in which the Court found that the applicant no longer had an interest in her
public law appeal, but then continued that the complaint would in any event
also be unfounded.
Article 5 para. 3 (Art. 5-3) of the Convention states:
"Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear
for trial."
2. The respondent Government submit in respect of Article 26 (Art. 26) of
the Convention that the applicant has not complied with the conditions of the
exhaustion of domestic remedies. In the Government's opinion, after the
applicant was remanded in custody, she failed to file an appeal against her
arrest and detention. She should have expected that the officer, who remanded
her in custody, would also indict her, a fortiori as her lawyer had
participated in other proceedings before the Convention organs concerning the
same matter and was therefore aware of these issues. The Government point out
that subsequently the Court of Appeal, in its judgment of 13 September 1985,
confined itself to some general remarks, and that the Court of Cassation, in
its judgment of 1 July 1986, did not consider the merits of the allegations.
The Government further draw attention to the decision of the
Federal Court of 24 November 1986 in which the Court found that the
applicant lacked interest in her public law appeal as she had
meanwhile been released from detention on remand. The Federal Court
also found that the applicant had, in the substantiation of her public
law appeal, not complied with the requirements under Swiss law.
The Government thus conclude that the applicant did not make
timely use of the appropriate remedies to contest her arrest or the
investigation procedure, and that she did not observe the requirements
under Swiss law for filing a public law appeal.
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.
The Commission has first examined the Government's submissions
according to which the applicant did not make timely use of the
appropriate remedies to contest her arrest and detention on remand,
and that the Federal Court found in its decision of 24 November 1986
that she lacked an interest in her public law appeal.
The Commission considers, on the one hand, that in the light
of the Zurich Judiciary Act and the Zurich Code of Criminal Procedure
it was probable that the District Attorney's Office would eventually
indict the applicant. In the Commission's opinion, however, it has
not been made clear by the respondent Government how the applicant, or
her representative, could thereby be expected to foresee that even
the same officer at the District Attorney's Office, who had previously
remanded her in custody, would eventually also indict her.
On the other hand, the Commission notes that S. 419 of the
Zurich Code of Criminal Procedure expressly envisages the possibility
of an appeal with the Court of Appeal after conviction by the District
Court, whereby complaints can be directed both against the
investigation and the procedure and the decision of the District
Court.
In the present case the applicant raised her complaints under
Article 5 para. 3 (Art. 5-3) of the Convention at the trial on 10 January
1985 after it became clear that the same District Attorney who
remanded the applicant in custody also indicted her. Upon the
applicant's acquittal by the District Court the Public Prosecutor's
Office filed an appeal, whereupon the Court of Appeal on 13 September
1985 convicted the applicant. The Commission notes that in its
judgment the Court of Appeal in fact dismissed the applicant's
complaint under Article 5 para. 3 (Art. 5-3) as being unfounded in the light of
the Federal Court's case-law, rather than declaring it inadmissible as being
out of time.
It is true that the Federal Court, in its judgment of
24 November 1986, declined to enter into the complaints under Article
5 para. 3 (Art. 5-3) of the Convention in view of the fact that the applicant
had meanwhile been released from detention and therefore lacked an actual
practical interest in her public law appeal. However, the Commission notes
that the Federal Court then proceeded to state that in any event, in view of
its own and the European Court's case-law on the matter, the complaint under
Article 5 para. 3 (Art. 5-3) of the Convention would also be unfounded.
The Commission is therefore satisfied that the Federal Court
in fact dealt with this complaint in substance, and that the applicant
has therefore in this respect complied with Article 26 (Art. 26) of the
Convention.
Insofar as the Government submit that the applicant did not
observe the procedural requirements for filing a public law appeal the
Commission recalls its constant case-law according to which there is
no exhaustion of domestic remedies where a domestic appeal is not
admitted because of a procedural mistake (see No. 6878/75, Dec.
6.10.76, D.R. 6 p. 79).
In the present case the Commission notes that in its decision
of 24 November 1986 the Federal Court found that according to S. 90 of
the Federal Judiciary Act the substantiation of a public law appeal
has to be included in the appeal statement and that it could
not therefore consider the notes of the applicant's representative
relating to proceedings before the European Court of Human Rights.
However, the Commission also observes that the Federal Court
did not regard the applicant's public law appeal statement itself as
being insufficiently substantiated. Indeed, the Federal Court then
proceeded to discuss the applicant's complaint under Article 5 para.
3 (Art. 5-3) of the Convention. Also for this reason, therefore, the applicant
complied with Article 26 (Art. 26) of the Convention.
The applicant's complaints cannot therefore be rejected under
Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.
3. The Government have further referred to their submissions in
the proceedings in the Schiesser case before the European Court of
Human Rights (see Series B No. 32, pp. 39 ff and 78 ff).
The Commission considers that the applicant's complaint under
Article 5 para. 3 (Art. 5-3) of the Convention, relating to the functions of
the District Attorney concerned, raises difficult questions of fact and law
which are of such complexity that their determination should depend on an
examination of the merits. The application is therefore not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and must be declared admissible, no other grounds for declaring it
inadmissible having been established.
4. In her reply to the Government's observations the
applicant submitted on 13 April 1988 that the Federal Court should
have entered into her public law appeal according to Article 13 (Art. 13) of
the Convention. An issue could arise whether these submissions have been
introduced in time within the meaning of Article 26 (Art. 26) of the Convention
in view of the fact that they were filed more than six months after the Federal
Court gave its judgment on 24 November 1986. However, the Commission considers
that both the content of the submissions and their context make it clear that
the applicant, rather than filing a new complaint, was intending to buttress
her argument that she had in fact complied with the requirement under Article
26 (Art. 26) of the Convention as to the exhaustion of domestic remedies in
respect of her complaint under Article 5 para. 3 (Art. 5-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)