Communicated on 2 February 2016
THIRD SECTION
Application no. 23385/15
Ranjit MASUTA
against Switzerland
lodged on 12 May 2015
STATEMENT OF FACTS
1. The applicant, Mr Ranjit Masuta, was born in 1964 and lives in Binningen. He is currently Stateless. The Swiss nationality he had acquired in January 2003 was revoked by the Federal Administrative Court (“Bundesverwaltungsgericht”) on 15 July 2011. He is represented before the Court by Ms E. Saluz, a lawyer practising in Bern.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Following incriminating statements made by an employee of the applicant with the police in Lörrach/Germany criminal investigations into serious crimes were opened against the applicant and other persons in Germany. Simultaneously by orders of 24 August, 21 October and 24 November 2005 the Swiss Federal Prosecutor opened criminal investigations against the applicant and other suspects on account of drug offences ensuing from a criminal organisation, qualified money laundering, fraudulent abuse of a data processing system, contraventions against the Federal Law on Residence and Establishment of Aliens (“Bundesgesetz über Aufenthalt und Niederlassung der Ausländer”) and fraud on a commercial basis. Most of these suspicions were based on allegations of unfair business practices around the applicant’s company conglomerate domiciled in Zürich, the World Telecom Network AG (WTN), which sold prepaid telephone cards Europe wide. The subsequent investigatory steps including several telephone surveillance measures in 2005 and 2006, search and seizures in 2006 as well as requests for international assistance in 2007 and 2008, while corroborating some of the suspicions against the applicant, showed that the allegations uttered by his former employee were to a large extent invented.
4. On 24 October 2006 the applicant was placed in pre-trial detention due to a concrete risk of flight and collusion. His application for temporary release was rejected by the Federal Examining Magistrate (“Eidgenössischer Untersuchungsrichter”) on 10 November 2006. After 260 days of remand the applicant was released on bail for 100 000 CHF on 10 July 2007.
5. On 24 April 2008 the criminal proceedings against the applicant were expanded to include fraudulent bankruptcy and fraud against seizure. On 21 August 2008 the Federal Prosecutor’s Office agreed to overtake the criminal investigations into allegations of fraud against the applicant initiated by the Public Prosecutor’s Office in Mannheim/Germany.
6. By orders of 8 November 2012 and 17 April 2013 of the Federal Prosecutor (“Staatsanwalt des Bundes”), the criminal proceedings against the applicant were discontinued with regard to all accounts. The latter order, regarding the allegations of fraud on a commercial basis and fraudulent abuse of a data processing system, imposed the bulk of the procedural costs, 151 199,20 CHF, on the applicant and rejected the claim to award him damages or satisfaction (e.g. for the unjustified pre-trial detention) to the applicant because the applicant had, as assessed by the Federal Prosecutor, unlawfully and culpably caused the proceedings to be initiated. 8 000 CHF of the procedural costs remained to be paid by the state treasury.
7. The applicant’s complaint against the order of discontinuation concerning its pecuniary consequences was rejected by the Federal Criminal Tribunal (“Bundesstrafgericht”) on 15 October 2013. In the opinion of the court it was justified to impose costs on the applicant and to deny him damages and satisfaction despite the discontinuation of the criminal proceedings against him because the applicant had, as CEO of WTN with individual signatory powers, reproachably violated behavioural norms under civil law, notably the duty of good faith in business operations, and had thereby initiated the criminal proceedings. The persons in responsible position within WTN had intentionally, as evidenced by the results of the criminal investigation, omitted to transparently indicate the real price behind a conglomeration of different fees of the telephone calls sold to the consumers in violation of Section 16 (1) of the Federal Law against Unfair Competition (“Bundesgesetz gegen den unlauteren Wettbewerb – UWG”) and the Decree on Price Disclosure (“Preisbekanntgabeverordnung”). In addition, the court found WTN’s breach of the civil law obligation to accounting and billing, equally imputable to the applicant, to have independently triggered the criminal investigations against him. The court reasoned that as the behaviour of the applicant had provoked the criminal investigation he was to be held responsible for the costs occurred thereby.
8. On 14 November 2013 the applicant filed a complaint with the Federal Tribunal (“Bundesgericht”) against the ruling of the Federal Criminal Tribunal of 15 October 2013 based on, inter alia, the excessive length of the proceedings. Moreover, he claimed a violation of the presumption of innocence and his right to a fair hearing as he had not been given opportunity to respond to the alleged violations of civil obligations arising under the UWG raised for the first time in the decision of the Federal Criminal Tribunal. The Federal Tribunal dismissed the complaint as inadmissible ratione materiae by judgment of 18 December 2014.
B. Relevant domestic law
9. The relevant provisions of the Swiss Code of Criminal Procedure (“Strafprozessordnung”) as in force at the material time read as follows:
Section 426
Liability to pay costs of the accused and parties to separate measures proceedings
“The accused shall bear the procedural costs if he or she is convicted. Exempted therefrom are the costs of the duty defence lawyer; Article 135 paragraph 4 is reserved.
If the proceedings are abandoned or the accused acquitted, all or part of the procedural costs may be imposed on the accused if he or she has unlawfully or culpably caused the proceedings to be initiated or has obstructed their conduct.”
10. The relevant provisions of the Code against Unfair Trade (“Bundesgesetz gegen den unlauteren Wettbewerb”) as in force at the material time read as follows:
Section 16
Obligation to Price Indication
“The prices of goods offered for sale to consumers are to be indicated as far no exceptions are foreseen by the Federal Council. Exceptions are admissible notably for technical or security reasons. The same obligation exists with regard to services indicated by the Federal Council.”
Section 24
Breach of the obligation to price indication
„Whoever willfully violates
a. the obligation to price indication (Section 16) or to disclose a base price (Section 16a),
...
Is to be punished by a fine of up to 20 000 CHF.
The punishment of a perpetrator acting with negligence is a fine.”
COMPLAINT
The applicant complains under Article 6 § 2 of the Convention, that the imposition of the court costs on him despite the continuation of the criminal investigations violated his right to be presumed innocent.
QUESTION TO THE PARTIES
Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case despite the imposition of court costs on the applicant the criminal proceedings against whom had been discontinued?
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