AS TO THE ADMISSIBILITY OF
Application No. 20320/92
by L. K.-D.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 7 July 1992 by
L. K.-D. against Switzerland and registered on 20 July 1992 under file
No. 20320/92;
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 Swiss citizen born in 1937, is a farmer residing
at Reichenburg in Switzerland. Before the Commission he is represented
by Dr M. Ziegler, a lawyer practising in Lachen in Switzerland.
Particular circumstances of the case
I.
On 30 June 1988 the applicant scolded a schoolboy of 13 years who
had allegedly stolen his cherries. The applicant apparently tore the
boy from his bicycle and knelt on him, whereupon the latter had to be
brought to a doctor. The parents reported the applicant to the March
District Office (Bezirksamt).
On 8 August 1989 the March investigating judge issued a bill of
indictment against the applicant on the ground of bodily injury
(Körperverletzung), alternatively of assault (Tätlichkeiten).
On 16 March 1990 the March District Court (Bezirksgericht)
acquitted the applicant of the offence of bodily injury, while
sentencing him to a fine of 100 SFr on account of assault. The
judgment stated that an appeal (Berufung) could be filed.
II.
The applicant filed an appeal with the Cantonal Court (Kantons-
gericht) of the Canton of Schwyz, requesting his acquittal or at least
that he should not be punished.
On 25 May 1990 the President of the Cantonal Court informed the
applicant that he could only file a plea of nullity (Nichtigkeitsbe-
schwerde), not an appeal. The applicant was granted a time-limit of
ten days for filing a plea of nullity.
On 7 June 1990 the applicant filed a plea of nullity with the
Court of Appeal, while upholding his appeal. In his plea of nullity
he complained that the investigating judge should first have issued a
penal order (Strafbefehl), rather than immediately indicting him. He
further complained that the previous court had failed to examine his
submission that there was no connection between the medical results and
his treatment of the victim. The applicant also referred to Section
177 para. 3 of the Penal Code (Strafgesetzbuch) according to which
there shall be no punishment where an insult is answered immediately
by another insult or assault. Finally, the applicant complained of the
imposition of costs.
On 25 June 1990 the Cantonal Court rejected the applicant's
appeal and dismissed his plea of nullity in two separate decisions,
given by the Criminal Chamber (Strafkammer) and the Second Appeal
Chamber (Rekurskammer), respectively. The Criminal Chamber was
composed of judges S., W., R., A. and H.
In respect of the appeal, the Criminal Chamber found inter alia
that the contested decision was incorrect in that it had, on the basis
of the same facts, both acquitted and convicted the applicant.
However, the District Court should only have pronounced itself on the
issue of assault. Thus, only the conviction of assault could be
contested. Assault constituted a misdemeanour (Übertretung) according
to Sections 101 and 126 of the Swiss Penal Code (Strafgesetzbuch; see
below, Relevant domestic law). However, an appeal against a
misdemeanour was only possible if the fine exceeded 1,500 SFr, whereas
the applicant's fine amounted to 100 SFr. As a result, the Criminal
Chamber declared the appeal inadmissible (auf die Berufung wird nicht
eingetreten).
In respect of the plea of nullity the Second Appeal Chamber found
inter alia that the District Court had implicitly established a
relation between the marks on the schoolboy's body, confirmed by the
doctor, and the applicant's conduct. The Court moreover examined
Section 177 para. 3 of the Penal Code, finding inter alia that this
provision did not cover cases where the original act was bodily
assault, rather than insult.
III.
The applicant filed a public law appeal (staatsrechtliche
Beschwerde) with the Federal Court (Bundesgericht).
The Federal Court transmitted a copy of the applicant's public
law appeal to the Cantonal Court of the Canton of Schwyz which on
21 September 1990 filed its observations thereupon. The observations
related in particular to the procedure chosen by the Cantonal Court;
the composition of the Criminal Chamber; the necessity of an oral
hearing; the public pronouncement of a judgment; and the costs. The
observations of the Cantonal Court were not transmitted to the
applicant.
The Federal Court dismissed the public law appeal on
25 October 1991, the decision being served on the applicant on
6 January 1992.
In its decision the Federal Court undertook a legal appreciation
of the applicant's public law appeal in the light of its case-law and
of the provisions of the Convention, the Federal Constitution, the
Federal Judiciary Act and of various provisions of the legal order of
the Canton of Schwyz. The Federal Court further relied on the previous
decisions in the case, on information stated in the State Calendar
(Staatskalender) of the Canton of Schwyz, and on the medical report
issued after the original incident.
The Federal Court first examined the applicant's complaint that
the Criminal Chamber had not been composed of the judges mentioned in
the State Calendar of the Canton of Schwyz. The Court found that the
Criminal Chamber had consisted of its president, two judges of the
Criminal Chamber, and two judges of the Civil Chamber. The judges were
therefore neither substitute judges nor judges appointed for the
particular case.
In respect of the requirements of an oral hearing and the public
pronouncement of the judgment, the Federal Court noted that the
applicant was solely complaining about the appeal proceedings before
the Criminal Court (die gerügten Rechtsverletzungen ausschliesslich das
Berufungsverfahren betreffen), and that he was not entitled to an oral
hearing in a case where his appeal was declared inadmissible.
Insofar as the applicant complained that his appeal had been
declared inadmissible, the Federal Court found that the Criminal
Chamber had correctly stated that in respect of one set of facts only
an acquittal or a conviction was possible. Moreover, appeals were
inadmissible in cases of misdemeanours not exceeding 1,500 SFr.
The applicant also filed a plea of nullity (Nichtigkeitsbe-
schwerde) which the Federal Court dismissed on 4 November 1991.
Relevant domestic law
I.
According to Section 101 of the Swiss Penal Code
(Strafgesetzbuch), misdemeanours (Übertretungen) will be punished with
imprisonment or a fine, or solely with a fine.
Section 126 of the Penal Code provides that assault
(Tätlichkeiten), which does not injure the body or damage health, is
punished, upon a formal complaint (Strafantrag), with a fine or with
imprisonment.
II.
According to Section 84 para. 1 (a) of the Federal Judiciary Act
(Organisationsgesetz), a public law appeal serves to complain in
particular about a violation of constitutional rights. According to
the Federal Court's case-law, complaints about a breach of Convention
rights may also be raised.
According to Section 93 of the Federal Judiciary Act, the Federal
Court may submit a public law appeal for observations to the authority
which took the contested decision; if the reasons on which the Federal
Court intended to base its decision are only contained in the resulting
observations, the applicant may be granted a time-limit to supplement
his plea of nullity.
III.
According to Section 152 of the Code of Criminal Procedure
(Strafprozessordnung) of the Canton of Schwyz, a plea of nullity serves
to complain about the breach of an essential principle of procedure;
a factual assumption (tatsächliche Annahme) which is arbitrary or not
supported by the file; or a breach of substantive law.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
about the proceedings before the courts of the Canton of Schwyz, and
about the public law proceedings before the Federal Court:
- Thus, he could not reply to the observations submitted by the
Cantonal Court of the Canton of Schwyz on 21 September 1990 to the
Federal Court. He submits that the Federal Court relied in substance
(massgeblich) on these observations.
- He complains of the composition of the Criminal Chamber, namely
that two judges sat on the bench who belonged to another Chamber. In
the applicant's opinion, it cannot fall to the Court President to
compose a court at his discretion, particularly as the composition was
not envisaged by the State Calendar of the Canton of Schwyz.
- He could not express himself (überhaupt nicht gehört) before the
Cantonal Court in respect of his appeal, and there was no exchange of
submissions in respect of his plea of nullity, particularly as the
Public Prosecutor was also not heard.
- Moreover, the Cantonal Court did not conduct an oral hearing and
did not pronounce its judgment in public.
2. Under Article 6 para. 2 of the Convention the applicant complains
that the Cantonal Court held that he had been wrongly acquitted by the
District Court; however, his acquittal had already become final, as it
had not been contested by an appeal.
3. Under Article 2 of Protocol No. 7 to the Convention the applicant
complains that in his case there was no second instance court to decide
on the first instance conviction.
THE LAW
1. The applicant raises various complaints under Article 6 para. 1
(Art. 6-1) of the Convention about the appeal proceedings before the
Criminal Chamber of the Cantonal Court of the Canton of Schwyz. He
complains in particular of the composition of the Criminal Chamber,
namely that two judges sat on the bench who belonged to another
Chamber. He further complains that he could not express himself before
the Criminal Chamber, and that the latter did not conduct an oral
hearing and did not pronounce its judgment in public.
Article 6 para. 1 (Art. 6-1) of the Convention states, insofar
as relevant for the present application:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. Judgment
shall be pronounced publicly ..."
The Commission considers that in its decision of 25 June 1990 the
Criminal Chamber declared the applicant's appeal inadmissible as this
remedy was only open where the fine exceeded 1,500 SFr, whereas the
applicant's fine amounted to 100 SFr.
Thus, the Criminal Chamber did not decide on the applicant's
appeal. The proceedings did not therefore concern "the determination
of a criminal charge against (the applicant)" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. The guarantees of this
provision invoked by the applicant do not therefore apply to the
applicant's complaints.
This part of the application is therefore incompatible ratione
materiae with the provisions of the Convention according to Article 27
para. 2 (Art. 27-2) of the Convention.
2. Under Article 6 para. 1 (Art. 6-1) of the Convention the
applicant complains that there was no exchange of submissions in
respect of his plea of nullity before the Second Appeal Chamber of the
Cantonal Court of the Canton of Schwyz, particularly as the Public
Prosecutor was also not heard.
The applicant also complains under this provision that he could
not reply to the observations submitted by the Cantonal Court of the
Canton of Schwyz on 21 September 1990 to the Federal Court.
According to the Convention organs' case-law, the principle of
equality of arms implies that each party shall have a reasonable
opportunity of presenting his case to the Court under conditions which
do not place him at a substantial disadvantage vis-à-vis his opponent.
However, this principle is only one feature of the wider concept of
fair trial by an independent and impartial tribunal (see Eur. Court
H.R., Borgers judgment of 30 October 1991, Series A no. 214-B, p. 31,
para. 24; mutatis mutandis Dombo Beheer B.V. judgment of
27 October 1993, Series A no. 274, p. 19, para. 33).
As regards the proceedings before the Second Appeal Chamber, the
Commission notes that the applicant had the opportunity of presenting
his views in his plea of nullity to the Second Appeal Chamber of the
Cantonal Court of the Canton of Schwyz. As the Public Prosecutor did
not comment on the plea of nullity, the applicant was not at a
disadvantage vis-à-vis his opponent.
The Commission has next examined the complaint that the applicant
could not reply to the observations submitted by the Cantonal Court to
the Federal Court.
However, the applicant has not pointed out instances whereby the
Cantonal Court listed grounds unknown to the applicant and proving
decisive for the Federal Court's judgment. Indeed, he has not
explained in what respect the Federal Court relied on these
observations at all.
The Commission has therefore examined the observations which the
Cantonal Court filed with the Federal Court. They related to the
procedure chosen by the Cantonal Court in respect of the applicant's
remedies; the composition of the Court; the necessity of an oral
hearing; the public pronouncement of a judgment; and the costs of the
proceedings. In the Commission's opinion there is no indication that
in its ensuing decision the Federal Court relied on any new factual
arguments submitted by the Cantonal Court in its observations.
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 in respect of his plea of nullity the Second Appeal
Chamber of the Cantonal Court did not conduct an oral hearing and did
not pronounce its judgment publicly.
According to the Convention organs' case-law, the absence of
publicity before a second or third instance court may be justified by
the special features of the proceedings at issue (see Eur. Court H.R.,
Sutter judgment of 22 February 1984, Series A no. 74, pp. 13 et seq.,
paras. 30 et seq.; Helmers judgment of 29 October 1991, Series A no
212-A, p. 16, para. 36).
In the present case it is not disputed that the trial in first
instance before the March District Court was conducted publicly.
The Commission has therefore had regard to the nature of the
issues to be decided by the Second Appeal Chamber of the Cantonal Court
upon the applicant's plea of nullity.
According to Section 152 of the Schwyz Code of Criminal
Procedure, a plea of nullity serves to complain about the breach of an
essential principle of procedure; a factual assumption which is
arbitrary or not supported by the file; or a breach of substantial law.
In his plea of nullity of 7 June 1990, the applicant complained
that the investigating judge had not issued a penal order; that the
March District Court had not examined the applicant's submission that
there was no connection between the medical results and his treatment
of the victim; that a provision of the Swiss Penal Code should be
interpreted differently; and that all costs had been imposed on him.
In the Commission's opinion, none of the issues to be decided by
the Cantonal Court required a renewed establishment of the facts, or
a renewed determination of which facts had been proved or were
applicable to the case. Insofar as the applicant complained that the
District Court had not addressed one of his submissions, the Commission
finds that this point merely concerned the legal assessment of
otherwise established facts.
Thus, the Second Appeal Chamber was only confronted with
questions of law, the plea of nullity not raising any serious issues
as to the facts which would have required a hearing.
Moreover, in view of the limited nature of the issues before the
Second Appeal Chamber, the absence of public pronouncement did not
contravene Article 6 para. 1 (Art. 6-1) of the Convention, the object
pursued by this provision, namely ensuring scrutiny of the judiciary
by the public, having been achieved during the course of the
proceedings taken as a whole (see Eur. Court H.R., Axen judgment of
8 December 1983, Series A no. 72, p. 14, para. 32).
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2. (Art. 27-2) of the
Convention.
4. Under Article 6 para. 2 (Art. 6-2) of the Convention the
applicant complains that the Cantonal Court held that he had
incorrectly been acquitted by the District Court, although his
acquittal had already become final.
According to Article 6 para. 2 (Art. 6-2) of the Convention,
"everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law".
In the present case the Criminal Chamber of the Cantonal Court
merely found that the District Court had incorrectly pronounced both
an acquittal and a conviction, and that only the applicant's conviction
could be contested by an appeal. There is no indication here that the
Criminal Chamber treated the applicant as if he were guilty before it
rejected his plea of nullity.
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.
5. The applicant complains that there was no second instance court
deciding on his first instance conviction. He relies on Article 2 of
Protocol No. 7 (P7-2) to the Convention which states, insofar as
relevant:
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence reviewed
by a higher tribunal. The exercise of this right, including the
grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to
offences of a minor character, as prescribed by law ..."
The Commission notes that the applicant had the possibility of
filing a plea of nullity against the decision of the March District
Court. It need nevertheless not examine whether or not this plea of
nullity amounted to a "review by a higher tribunal" within the meaning
of para. 1 of Article 2 of Protocol No. 7 (P7-2-1).
Thus, according to para. 2 (P7-2), the right to review is
subjected to "exceptions in regard to offences of a minor character,
as prescribed by law".
In the Commission's opinion, the offence of which the applicant
was convicted - assault with no lasting damage to body or health -
constitutes a "minor" offence as confirmed by the fine of 100 SFr.
Domestic law qualified the offence as a misdemeanour and thus also
regarded it as a minor one.
The Commission therefore considers that the exception to the
right to a review by a higher tribunal, pursuant to Article 2 para. 2
of Protocol No. 7 (P7-2-2), applies.
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 by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy