AS TO THE ADMISSIBILITY OF
Application No. 23642/94
by R. D.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. S. TRECHSEL
J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
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 17 January 1994
by R. D. against Switzerland and registered on 9 March 1994 under file
No. 23642/94;
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
16 February 1996 and the observations in reply submitted by the
applicant on 14 May 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swiss citizen born in 1957, is a businessman
currently residing at an unknown place in Ireland. Before the
Commission he is represented by Mr P. Frei, a lawyer practising in
Zürich.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 6 June and 28 June 1990, respectively, the Graubünden cantonal
police arrested C. and H. on suspicion of having committed drug
offences. Both declared that they had obtained cocaine in Davos from
a certain K. in 1987 and 1988. When shown a photograph of the
applicant, both C. and H. identified him as K. The applicant had at
that time escaped from prison where he was serving a prison sentence,
inter alia for robbery.
Subsequently, the applicant was again detained and continued
serving his prison sentence.
Criminal investigations were then instituted against the
applicant on suspicion of having contravened the Narcotics Act
(Betäubungsmittelgesetz). When questioned, he contested having
committed these offences, though he admitted that at the critical time
he had been in Davos under the name of K.
On 2 October 1990 the applicant, while in detention, was
confronted with C. and H., respectively, each meeting lasting
approximately five minutes. The applicant's officially appointed
lawyer had excused himself and was not present. The minutes of the
confrontation with C. state as follows:
"Question to C.: Do you know the gentleman present?
(C.:) I refuse all statements.
Question to the applicant: Do you know this gentleman present?
(The applicant:) I'm not sure whether I know the gentleman, as
I know a lot of people."
The minutes of the confrontation with H. state as follows:
"Question to H.: Do you know the gentleman present?
(H.:) I'm not sure.
Question to H.: Have you ever obtained cocaine from this
gentleman?
(H.:) I will not make a statement in this respect.
Question to (the applicant): Do you know this gentleman present?
(The applicant:) I'm not sure; I know a lot of people.
Question to (the applicant): Did you give him cocaine in the
winter of 1987/88?
(The applicant:) No."
C. and H. were convicted of drug offences in 1990 and 1991,
respectively.
On 16 April 1991 the criminal investigations against the
applicant were closed. He was granted ten days' time to consult the
case-file and to file requests for supplementing the investigation
(Anträge auf Ergänzung der Untersuchung). However, no such request was
filed.
On 4 May 1992 the Public Prosecutor's Office (Staatsanwaltschaft)
of the Canton of Graubünden indicted the applicant of having
contravened the Narcotics Act. The bill of indictment noted that the
applicant denied all charges; it further stated that no witnesses or
experts should be called for the trial.
On 7 May 1992 the President of the Cantonal Court (Kantons-
gericht) of the Canton of Graubünden informed the applicant that the
Court did not intend to invite any witnesses to the trial, though the
applicant could do so before 27 May 1992. No such request was filed.
However, the applicant then requested to be exempted from
personally appearing at the trial. He submitted a medical report
according to which he suffered from intestinal ulcers which could at
any time lead to lethal haemorrhages.
Meanwhile, the applicant's lawyer requested consultation of the
case-files concerning C. and H. On 1 June 1992 the Public Prosecutor's
Office transmitted the file concerning H.; it pointed out that the file
concerning C. was still before the Federal Court (Bundesgericht).
On 12 June 1992 the President of the Cantonal Court exempted the
applicant from personally appearing at the trial, though he was
informed that his absence would not mean that he would be tried in
absentia, and that he could not draw any conclusion to his advantage
from the fact that he could not personally be questioned.
The trial took place on 16 June 1992 before the Cantonal Court,
the applicant's lawyer being present, but not the applicant. At the
trial the Public Prosecutor requested adjournment to enable the
applicant to be present. The applicant's lawyer renounced his right
to comment on this issue.
After deliberating the Court dismissed the Public Prosecutor's
request and resumed the trial.
In his submissions before the Cantonal Court the applicant's
lawyer pointed out, inter alia, that when the applicant had been
confronted with C. and H. on 2 October 1990, neither he nor his lawyer
had then had knowledge of the complete case-file concerning the
applicant; they had also not had access to the files of the proceedings
concerning C. and H. Moreover, each confrontation had only lasted five
minutes, and it had been made clear to him that he could only speak
with C. or H. if invited to do so. Contrary to Article 6 para. 3 (c)
of the Convention, he was refused the opportunity to put questions to
C. and H. The lawyer also requested consultation of the case-files
concerning C. and H., the adjournment of the trial and the possibility
to question C. and H. in the applicant's presence.
On 16 June 1992 the Cantonal Court convicted the applicant of
various contraventions of the Narcotics Act and sentenced him to
18 months' imprisonment.
In its judgment the Cantonal Court found inter alia that it would
have preferred the applicant to be present at the trial in order to
obtain a direct impression of the accused. However, although the
applicant contested the offences, his personal appearance was not
absolutely necessary (nicht unabdingbar) and the trial could continue,
particularly in view of his medical situation. The Court found that
the applicant had himself requested to be exempted from the trial, and
that the lawyer had raised no further objections at the trial.
The Cantonal Court further regarded as unfounded the applicant's
complaint that he had not been able to put questions to C. and H. The
Court noted that before the confrontations with C. and H. the applicant
had been questioned on various occasions by the police and was aware
of the charges raised against him and of the incriminating statements
made by C. and H. Moreover, at the confrontations on 2 October 1990
the applicant had had the opportunity to put questions, and his lawyer
could have been present, though he had excused himself. After the
investigations were closed, and again on 7 May 1992 the applicant had
been granted the possibility to request further confrontations with C.
and H. However, he had not done so. As he had then on his own free
will renounced his right to do, he could no longer at the trial request
the possibility to question the witnesses.
The Court also dismissed the applicant's request to consult the
case-file concerning C. and for this reason to adjourn the trial. It
regarded this as unnecessary as the same judges on the bench had
already sat in C.'s case; the Court was therefore aware of the case-
file concerned. Moreover, in C.'s case the Cantonal Court had based
itself on the facts established in the bill of indictment.
In respect of the evidence of the case the Court considered that
both C. and H. had clearly identified K. on a photograph as being the
applicant. The confrontations on 2 October 1990 had taken place at a
moment when the various persons could have colluded with one another.
However, the Court noted that C. and H. had never stated that they had
been mistaken about the applicant. For instance, when questioned on
16 October 1990, H. had again clearly confirmed one particular deal
with the applicant.
The applicant then filed a public law appeal (staatsrechtliche
Beschwerde) with the Federal Court (Bundesgericht). In respect of the
right to consult the case-files he complained that he had been unable
to consult the case-file of C. The Federal Court dismissed the
applicant's public law appeal on 8 January 1993, the decision being
served on the applicant on 24 September 1993.
The Federal Court first dealt with the applicant's complaint that
he could not consult the case-file concerning C. and could not
therefore establish his credibility. It found that the Cantonal Court
had considered that no relevant elements would transpire from the case-
file and that C.'s statements which incriminated the applicant had also
incriminated C. himself.
In respect of the complaint that the applicant had not been able
to put questions to C. and H., the Federal Court noted, inter alia,
that the applicant had failed to file a request for a further
confrontation within ten days after the investigations were closed.
While a request could still have been filed at the trial itself, the
Federal Court found that the Cantonal Court had been free to reject
such a request if, as in the present case, it had previously been
raised. Finally, the Federal Court found that the Cantonal Court had
not arbitrarily assessed the evidence.
COMPLAINTS
1. The applicant complains under Article 6 paras. 1 and 3 of the
Convention that he could not personally put questions to C. and H.
Thus, on 2 October 1990 his lawyer had not been present, and the
investigating authorities had expressly instructed the applicant only
to answer questions put by them. C. and H. were also not present at
the trial.
2. The applicant further complains under Article 6 paras. 1 and 3
of the Convention of a breach of the equality of arms and of his rights
of defence in that during the entire trial neither he nor his lawyer
had been able to consult the case-files concerning the proceedings
against C. and H. In particular he had not been able to do so before
the confrontations on 2 October 1990, and the Public Prosecutor's
Office had had information at its disposal which he did not have.
Moreover, before the trial the lawyer was only permitted to consult the
case-file concerning the proceedings against H.; that case-file was
furthermore not complete and certain photocopies were partly covered.
The applicant recalls that C. and H. were the only incriminating
witnesses. He submits that, had he been able to consult their case-
files before the confrontations on 2 October 1990, he would have been
able to notice that C. and H. originally contradicted each other in
their statements, and that their incriminating statements resembled
each other more and more during the investigations until they were
almost identical; he would also have been able to notice that C. and
H. had the possibility to conspire with each other. Moreover, insofar
as he was unable to consult the case-file throughout the trial, he was
deprived of the possibility of establishing the credibility of C.
and H.
The applicant also complains that before 2 October 1990 he had
not been able to consult his own case-file.
3. The applicant moreover complains of a breach of the presumption
of innocence contrary to Article 6 para. 2 of the Convention in that
the Swiss authorities did not permit him to examine the credibility of
incriminating witnesses. Thus, he was obliged to prove his innocence.
4. The applicant complains of a breach of his rights of defence
under Article 6 para. 3 (b) of the Convention in that he was not duly
informed in advance of the confrontations with C. and H.; he could not
therefore sufficiently prepare himself.
5. Under Article 6 para. 3 (c) of the Convention the applicant
complains that during the investigations he was not duly represented
by a lawyer. Thus, at the confrontations on 2 October 1990 the lawyer
had excused himself. It would have been up to the authorities to
ensure that he was effectively represented, or at least that he could
prepare his own defence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 January 1994 and registered
on 9 March 1994.
On 29 November 1995 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
16 February 1996. The applicant replied on 14 May 1996, after an
extension of the time-limit fixed for that purpose.
THE LAW
The applicant raises various complaints under Article 6 paras. 1,
2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention of the unfairness of the
criminal proceedings.
Article 6 (Art. 6), insofar as relevant, provides as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ...
...
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands 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;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
The Commission recalls at the outset that the question whether
proceedings conform to the standards laid down in Article 6 (Art. 6)
of the Convention must be decided on the basis of the proceedings in
their entirety and not on the basis of one particular aspect (see No.
11058/84, dec. 13.5.86, D.R. 47 p. 235).
1. The applicant first complains that he could not put questions to
C. and H., and that he was unprepared for the confrontations on
2 October 1990; thus he had not duly been informed in advance thereof.
Moreover, at the confrontations he was not duly represented by a
lawyer.
The Commission notes that on 2 October 1990 the applicant was
confronted with C. and H., respectively, who had previously both
incriminated him. Each confrontation consisted of a few sentences and
lasted approximately five minutes. The applicant's lawyer was absent,
and the applicant himself apparently unprepared for the confrontation.
It furthermore transpires from the minutes of the confrontations that
the applicant did not put questions to C. and H.; indeed, the applicant
claims that he was instructed only to reply to questions put to him.
The Commission nevertheless observes that on 16 April 1991, after
the criminal investigations were closed, the applicant was granted ten
days' time to file a request for supplementing the evidence. He was
therefore granted the possibility again to request confrontations with
C. and H. in the presence of his lawyer. However, he failed to do so.
Moreover, when preparing the trial the President of the Cantonal
Court again informed the applicant that within a time-limit of 20 days
the applicant could file a request for inviting witnesses to the trial.
Again the applicant did not do so.
Thus, the applicant failed to avail himself on two occasions of
the possibility granted to him to request a further confrontation in
the presence of his lawyer, and after consulting his case-file, with
the incriminating witnesses C. and H. Moreover, it does not in the
Commission's opinion appear arbitrary if the Cantonal Court on 16 June
1992 rejected his request at the trial for any further confrontations
as he had previously during the preparation of the trial on his own
free will waived his right to make such requests.
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.
2. The applicant further complains that during the entire trial
neither he nor his lawyer had been able to consult the case-files
concerning the proceedings against C. and H. It was true that his
lawyer had been able to see the file concerning C., though it had been
incomplete. Consultation of these case-files before the confrontations
on 2 October 1990 would have shown him that during the investigations
the incriminating statements of C. and H. resembled each other more and
more; and that they had conspired with each other. Moreover, he would
have been able to establish their credibility. Finally, the applicant
complains that before 2 October 1990 he had been unable to consult his
own case-file.
a) The Government submit that the applicant has not exhausted
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention. Thus, in his public law appeal before the Federal Court the
applicant did not raise the complaint that he was unable to consult his
own case-file before 2 October 1990; and he did not at all raise the
complaint that he was unable to consult the case-file of H.
The applicant submits that he generally complained of a breach
of his rights of defence. He admits that in his public law appeal he
did not expressly complain that he was unable to consult the case-file
before 2 October 1990. The Federal Court should have examined his
individual rights ex officio, and it would be formalistic to reject his
complaints for non-exhaustion.
The Commission has taken note of the applicant's submissions that
before the Federal Court he did not expressly contest the refusal of
the authorities to consult the case-file before 2 October 1990. As
regards the period after 2 October 1990 the Commission notes that the
applicant has not shown that he sufficiently complained in his public
law appeal that he was unable to consult during this period either his
own case-file or that of H. Moreover, the Commission notes that the
Federal Court in fact did not deal with these issues.
As a result, insofar as the applicant complains that he was
unable to consult his own case-file or that of H., he has not complied
with the requirements under Article 26 (Art. 26) of the Convention as
to the exhaustion of domestic remedies. This part of the application
must therefore be declared inadmissible according to Article 27 para.
3 (Art. 27-3) of the Convention.
b) As regards the applicant's complaint that he could not consult
C.'s case-file, the Government submit that the applicant never raised
such a complaint during the investigations. Insofar as the applicant
complained in his public law appeal that such consultation would have
been necessary in order to establish C.'s credibility, the Government
point out that the applicant had in his own case-file the following
documents from C.'s case-file: the minutes of C.'s interrogations by
the authorities on 10 July, 6 September and 28 September 1990; and the
minutes of the confrontation between C. and the applicant of 2 October
1990.
The Government recall the Cantonal Court judgment of 16 June 1992
according to which the same judges in the applicant's trial had already
sat on the bench in C.'s case; moreover, in C.'s case the Cantonal
Court had based itself on the facts established in the bill of
indictment. In this context the Government recall that domestic
authorities enjoy a large margin of appreciation when assessing the
evidence.
The applicant submits that the Government have not raised any
essentially new arguments in their observations and that he therefore
refrains from making a detailed reply thereto.
The Commission has examined under Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention the issue whether or not the
applicant was deprived of his rights of defence in that he could not
consult C.'s case-file.
The Commission notes that the applicant has not referred to any
particular aspects of evidence, or any particular document, contained
in C.'s case-file which the Cantonal Court used against the applicant
in its judgment of 16 June 1992 (see No. 11058/84, loc. cit.). Indeed,
before the Commission the applicant has not contested the Government's
submissions that the minutes of various interrogations by the
authorities of C. were included in the applicant's own case-file, and
that the Cantonal Court, when convicting C., based itself on the facts
as established in the bill of indictment. Furthermore, insofar as the
applicant submits that he was unaware of certain information at the
confrontation on 2 October 1990 he has not claimed that thereafter,
when he became aware of this information, he could not comment
thereupon, at the latest at the trial before the Cantonal Court.
It is true that the applicant submits that the refusal to let him
consult the case-file of C. effectively deprived him throughout the
trial of the possibility of establishing the credibility of C.
However, the Commission considers that the applicant already had the
possibility of establishing C.'s credibility when he was personally
confronted with C. on 2 October 1990. He would again have been granted
the possibility to establish C.'s credibility, had he requested a
further confrontation where he could have put questions to C.
It follows that the remainder of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 7-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy