AS TO THE ADMISSIBILITY OF
Application No. 23857/94
by André PLUMEY
against Switzerland
The European Commission of Human Rights sitting in private on
9 September 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
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
M. VILA AMIGÓ
Mr. M. de SALVIA, Deputy 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 10 March 1994 by
André Plumey against Switzerland and registered on 12 April 1994 under
file No. 23857/94;
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
9 April 1996 and the observations in reply submitted by the
applicant on 7 May 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swiss citizen born in 1928, is a pensioner
residing at Sisseln in Switzerland. Before the Commission he is
represented by Mr. P. Zihlmann, a lawyer practising in Basel.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In 1986 the Public Prosecutor's Office (Staatsanwaltschaft) of
the Canton of Basel-Stadt instituted criminal proceedings against the
applicant who was suspected of having committed various economic
offences. As the applicant was abroad, the First Public Prosecutor
(Erster Staatsanwalt) issued an international warrant of arrest on
19 June 1989, whereupon the applicant was arrested in Rio de Janeiro
and extradited to Switzerland.
On 4 July 1989, immediately upon his return to Switzerland, the
applicant was arrested. On the same day he was brought before F.H.,
the Acting Public Prosecutor (Leitender Staatsanwalt) who remanded him
in custody (Sicherheitshaft).
The subsequent prolongations of the applicant's detention on
remand until 24 October 1990 were ordered, with one exception, by F.H.
On 23 October 1990 the Court handed down its judgment in the case
of Huber v. Switzerland (Eur. Court HR, Series A no. 188).
On 26 October 1990 the First Public Prosecutor prolonged the
applicant's detention. Against this decision the applicant filed an
appeal, referring to the Court's judgment in the Huber case, in that
the First Public Prosecutor had prolonged his detention on remand.
The appeal was dismissed on 8 November 1990 by the Indictment
Chamber (Überweisungsbehörde) of the Canton of Basel-Stadt. The
Chamber found inter alia that it was not yet in possession of the
Court's judgment in the Huber v. Switzerland case; and that in any
event the issue did not arise in proceedings concerning prolongation
of detention on remand, though it could become relevant at a later
stage of the proceedings.
Against this decision the applicant filed a public law appeal
(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).
On 14 December 1990 the applicant was released on bail from
detention on remand.
On 21 December 1990 the Federal Court struck the applicant's
public law appeal off its list of cases as the applicant had meanwhile
been released from detention.
On 29 November 1991 Acting Public Prosecutor F.H. announced the
intention of the Public Prosecutor's Office to indict the applicant
inter alia of professional fraud, forging of documents and negligent
bankruptcy. It was also stated that the applicant had a time-limit of
10 days to file a complaint.
On 3 December 1991 the applicant challenged F.H., as he had
signed the letter of 29 November 1991, while previously having ordered
his detention on remand. The letter was headed: "Threat of a breach
of Article 5 paras. 3 and 4 of the Convention".
In reply to the letter of 3 December 1991, F.H. wrote to the
applicant on 4 December 1991 that he himself intended to indict the
applicant.
On 7 January 1992 the applicant complained to F.H. that the bill
of indictment had still not been prepared, and that further delays
could no longer be tolerated. The letter was headed: "Here: failure
to indict".
On 14 July 1992 the applicant was indicted of various economic
offences. The bill of indictment was signed by F.H.
On 21 July 1992 the applicant complained to the President of the
Criminal Court (Strafgericht) of the Canton of Basel-Stadt that the
indictment breached Article 5 para. 3 of the Convention. He submitted
in particular that F.H. could not represent the prosecution as he had
previously ordered prolongation of the applicant's detention on remand.
On 26 January 1993 the President of the Criminal Court dismissed
the complaint, inter alia as it was belated. Thus, the applicant had
only on 21 July 1992, during the trial, filed a challenge against the
Public Prosecutor concerned. (Erst mit der vorliegenden Eingabe vom
21.7.92 hat der Verteidiger nun im Hauptverfahren sinngemäss ein
Ausstandsbegehren gegen den Staatsanwalt gestellt.) However, he should
have filed a complaint after the judgment in the case of Huber
v. Switzerland had been pronounced, at the latest after the
announcement of 4 December 1991.
The applicant's appeal against this decision was rejected on
9 March 1993 by the Court of Appeal (Appellationsgericht) of the Canton
of Basel-Stadt which found that the President of the Criminal Court had
not been competent to deal with his complaint. The applicant's public
law appeal was rejected on 14 May 1993 by the Federal Court.
The applicant's renewed challenge of Public Prosecutor F.H. was
dismissed by the Criminal Court on 24 June 1993.
On 6 August 1993 the Court of Appeal dismissed his further
appeal.
In its decision, the Court considered that there had been a
breach of Article 5 para. 3 of the Convention in that F.H. had first
remanded the applicant in custody and then indicted him. According to
the Federal Court's case-law, such a complaint could be raised upon
indictment. However, the applicant, who had been aware as from
4 December 1991 that F.H. would indict him, had waited over half a year
until 21 July 1992 when he had formally challenged F.H.
The applicant filed a public law appeal in which he pointed out
inter alia that he had referred to the issue already on 30 October
1990, i.e. immediately after the Court's judgment in the case of Huber
v. Switzerland had become known.
The public law appeal was dismissed by the Federal Court on
4 October 1993, the decision being served on 20 October 1993.
In its decision the Court considered that in the present case
Article 5 para. 3 of the Convention had "indirectly" (indirekt) been
breached, as F.H. had first imposed detention on remand on the
applicant and had later prepared the bill of indictment. The applicant
could, therefore, successfully have challenged F.H. However, the Court
recalled its case-law according to which good faith required that a
civil servant (Beamter) was challenged as early as possible. In the
present case the Court noted that the applicant had challenged F.H. on
21 July 1992. Already on 4 December 1991 the applicant had been
informed that F.H. would indict him. Indeed, on 3 December 1991 the
applicant had written to the Public Prosecutor's Office and challenged
F.H. However, after the information of 4 December 1991 he failed
immediately to file a challenge with the Criminal Court or to react
otherwise. On the contrary, on 7 January 1992 he wrote to F.H. and
urged him as soon as possible to prepare the bill of indictment,
without challenging F.H.; thus, the applicant had actually accepted
F.H. as Public Prosecutor. It breached good faith, therefore, if the
applicant challenged F.H. only half a year later.
The trial commenced on 11 October 1993. The Prosecution was
represented by the First Public Prosecutor.
On 22 December 1993 the Criminal Court of the Canton of Basel-
Stadt sentenced the applicant to seven and a half years' imprisonment.
COMPLAINTS
The applicant complains that the Federal Court accepted a breach
of Article 5 para. 3 of the Convention, yet incorrectly assumed that
he had belatedly invoked this right under this provision. Thus, he had
not acted negligently or against good faith; rather, he had complained
well before the trial began on 11 October 1993, for instance following
the prolongation of detention on remand on 26 October 1990, on
3 December 1991, and again after the indictment of 14 July 1992.
The applicant points out that the Code of Criminal Procedure of
the Canton of Basel-Stadt does not provide for remedies to challenge
breaches such as the one at issue. The position of an investigating
judge deciding on the imposition of detention on remand was only
introduced on 1 January 1993.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 March 1994 and registered
on 12 April 1994.
On 16 January 1996 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 9 April
1996. The applicant replied on 7 May 1996.
On 3 September 1996 the case was referred to the Plenary
Commission.
THE LAW
1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the
Convention that Public Prosecutor F.H. remanded him in custody and
later indicted him. He complains that the Federal Court, while
accepting a breach of Article 5 para. 3 (Art. 5-3) of the Convention,
nevertheless assumed that he had belatedly invoked his right under this
provision.
Article 5 para. 3 (Art. 5-3) of the Convention states, insofar
as relevant:
"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
..."
2. The Government express doubts as to whether the applicant has
exhausted domestic remedies within the meaning of Article 26 (Art. 26)
of the Convention. Thus, when the applicant was brought before the
Acting Public Prosecutor F.H. on 4 July 1989, he should immediately
have filed a complaint under Article 5 para. 3 (Art. 5-3) of the
Convention. Given F.H.'s position in the Public Prosecutor's Office,
the applicant should already then have been aware of the fact that F.H.
could later represent the prosecution. On the other hand, Article 5
para. 3 (Art. 5-3) only concerns the first control of the legality of
a person's detention; any subsequent prolongation of detention no
longer falls under the guarantees of this provision.
The applicant submits that there was no other procedure in
Switzerland available to him to complain about the breach of Article 5
para. 3 (Art. 5-3) of the Convention. He contends that even today
there is disagreement in Switzerland as to how to proceed correctly in
case of a violation of Article 5 para. 3 (Art. 5-3) of the Convention.
How then can the applicant be criticised for not having employed the
correct procedure?
In the present case, it is true that the Federal Court in its
decision of 4 October 1993 dismissed the applicant's public law appeal.
It found that, contrary to good faith, the applicant had challenged
F.H. belatedly.
However, the Commission notes that the Federal Court in its
decision of 4 October 1993 also stated that Article 5 para. 3
(Art. 5-3) of the Convention had indirectly been breached as F.H. had
first imposed detention on remand on the applicant and had later
prepared the bill of indictment.
As a result, the Federal Court dealt in fact with the applicant's
complaint in substance. The Commission is therefore satisfied that the
applicant has complied with the requirement as to the exhaustion of
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention.
On the other hand, the issue whether or not the applicant could
nevertheless have been expected to voice his complaints at an earlier
stage of the proceedings falls to be examined together with the
substance of the application.
3. The Government further submit that the applicant has not complied
with the requirement of the six months' rule stipulated in Article 26
(Art. 26) of the Convention. It is recalled that, after the Court's
judgment in the case of Huber v. Switzerland on 23 October 1990, the
applicant filed public law appeals invoking Article 5 para. 3
(Art. 5-3) of the Convention which led to three judgments of the
Federal Court, i.e. on 21 December 1990, 14 May and 4 October 1993.
The applicant should have challenged F.H. immediately after the Huber
judgment, i.e. in the proceedings leading to the Federal Court's
decision of 21 December 1990. However, the application is out of time
as it was only introduced before the Commission on 10 March 1994.
The applicant contends that the respondent Government's argument
is untenable that he has not complied with the six months' rule
according to Article 26 (Art. 26) of the Convention. It would mean that
if a person failed to file a challenge the first time when the legality
of his detention was controlled, this would exclude the possibility of
filing such a challenge whenever his detention was prolonged later on.
In the applicant's submission the Government furthermore contradict
themselves when they submit that the applicant should have filed his
application before the Commission already against the Federal Court's
decision of 21 December 1990.
The Commission notes that, after the applicant's detention on
remand was prolonged on 26 October 1990, the applicant filed an appeal
in which he referred to the Court's judgment in the case of Huber v.
Switzerland (Eur. Court HR, Series A no. 188). However, his appeal was
dismissed on 8 November 1990 by the Indictment Chamber of the Canton
of Basel-Stadt, inter alia, as the complaints were premature. The
applicant's further appeal to the Federal Court was struck off the list
of cases on 21 December 1990 as the applicant had meanwhile been
released from detention on remand.
In the Commission's opinion, therefore, the remedies to the
Indictment Chamber and to the Federal Court could not have served
effectively to raise the complaints the applicant is now raising before
the Commission.
On the other hand, the Commission observes that the Federal Court
in its decision of 4 October 1993 effectively dealt with the complaints
at issue, the decision being served on 20 October 1993 and the
applicant filed his application with the Commission on 10 March 1994.
As a result, the Commission cannot uphold the Government's
objection according to which the applicant has not filed his
application "within a period of six months from the date on which the
final decision was taken" within the meaning of Article 26
(Art. 26) of the Convention.
4. Subsidiarily, the Government do not contest that in the present
case there has been a violation of Article 5 para. 3 (Art. 5-3) of the
Convention. However, the Government submit that the applicant waived
his right under this provision in that he did not challenge F.H. when
he became aware that the latter would represent the prosecution. Thus,
before the Huber judgment, the applicant merely complained of the
length of his detention on remand; only thereafter did the applicant
request another member of the Public Prosecutor's Office to represent
the prosecution. When on 4 December 1991 F.H. informed the applicant
that he himself intended to indict the applicant, the latter on 7
January 1992 merely complained of the length of the delay of the
indictment. Only on 21 July 1992 did the applicant formally challenge
F.H. However, the applicant should have done so as soon as he became
aware of the possibility, i.e. after he received F.H.'s letter on 4
December 1991.
The applicant points out that in his letter of 3 December 1991
he challenged F.H. This challenge was never withdrawn. In his letter
of 7 January 1992 he complained that there had still not been an
indictment, and that a further delay could no longer be tolerated. The
applicant requested "an indictment", but not "an indictment by F.H.".
Thus, it cannot be said that he did not contest the letter of F.H. of
4 December 1991. The applicant also points out that the respondent
Government in fact admit in his case a breach of Article 5 para. 3
(Art. 5-3) of the Convention.
The Commission finds that this complaint raises serious questions
of fact and law which are of such complexity that their determination
should depend on an examination of the merits. This case cannot,
therefore, be regarded as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no
other grounds for declaring it inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M. de SALVIA G.H. THUNE
Deputy Secretary Acting President
to the Commission of the Commission
Full & Egal Universal Law Academy