S. v. SWITZERLAND



Applications Nos. 12629/87 and 13965/88

S.

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 12 July 1990)

                                TABLE OF CONTENTS

                                                              Page

I.      INTRODUCTION

        (paras. 1-16)  ....................................     1

        A.      The application

                (paras. 2-5)  .............................     1

        B.      The proceedings

                (paras. 6-11)  ............................     1

        C.      The present Report

                (paras. 12-16)  ...........................     2

II.     ESTABLISHMENT OF THE FACTS

        (paras. 17-72)  ...................................     3

        A.      The particular circumstances of the case

                (paras. 17-69)  ...........................     3

                a.  Institution of criminal proceedings

                    (paras. 17-24)  .......................     3

                b.  The applicant's communications with

                    his lawyer

                    (paras. 25-58)  .......................     4

                c.  Indictment and trial

                    (paras. 59-69)  .......................     9

        B.      Relevant domestic law and practice

                (paras. 70-72)  ...........................     10

III.    OPINION OF THE COMMISSION

        (paras. 73-105)  ..................................     12

        A.      Points at issue

                (para. 73)  ...............................     12

        B.      Article 6 para. 3 (c) of the Convention

                (paras. 74-95)  ...........................     12

                Conclusion

                (para. 95)  ...............................      16

        C.      Article 6 para. 3 (b) of the Convention

                (paras. 96-99)  ...........................      16

                Conclusion

                (para. 99)  ...............................      16

        D.      Article 5 para. 4 of the Convention

                (paras. 100-104)  .........................      16

                Conclusion

                (para. 104)  ..............................      17

        E.      Recapitulation

                (para. 105)  ..............................      17

DISSENTING OPINION OF MR. H.G. SCHERMERS  .................      18

APPENDIX I:     HISTORY OF THE PROCEEDINGS  ...............      20

APPENDIX II:    DECISION ON THE ADMISSIBILITY  ............      21

I.    INTRODUCTION

1.      The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.      The applications

2.      The applicant, born in 1962, is a Swiss citizen residing in

Zurich.  Before the Commission, he is represented by Mr.  J.P. Garbade,

a lawyer practising in Geneva and Zurich.

3.      The applications are directed against Switzerland whose

Government were represented by their Agent, Mr.  O. Jacot-Guillarmod,

Deputy Director of the Federal Office of Justice.

4.      The applications relate to criminal proceedings instituted

against the applicant on suspicion of arson and of having caused

explosions.  While he was remanded in custody the applicant's oral

communications with his defence counsel were supervised by the

authorities during approximately eight months.

5.      The applicant complains under Article 6 paras. 3 (b) and (c) of

the Convention that he was not allowed to communicate freely and

without supervision with his defense counsel.  He also complains that

this supervision rendered illusory his right to take proceedings

before a court within the meaning of Article 5 para. 4 of the Convention.

B.      The proceedings

6.      Application No. 12629/87 was introduced on 18 November 1986

and registered on 5 January 1987.  Application No. 13965/88 was

introduced on 28 May 1988 and registered on 20 June 1988.

7.      On 12 December 1988 the Commission decided to join the

applications, to bring them to the notice of the respondent Government

and to invite them pursuant to Rule 42 para. 2 (b) of the Commission's

Rules of Procedure to submit observations on the admissibility and

merits of the complaints under Articles 5 para. 4, 6 para. 3 (c)

and 13 of the Convention.

8.      The respondent Government's observations were submitted on

27 February 1989 and the reply thereto by the applicant on 10 April 1989.

9.      On 9 November 1989 the Commission declared the applications

partly admissible.

10.     Further observations were submitted by the applicant on

20 December 1989 and by the Government on 5 January 1990.

11.     After declaring the applications admissible, the Commission,

acting in accordance with Article 28 para. 1 (b) of the Convention,

also placed itself at the disposal of the parties with a view to

securing a friendly settlement of the case.  In the light of the

parties' reaction, the Commission now finds that there is no basis

upon which a settlement can be effected.

C.      The present Report

12.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberation and

votes, the following members being present:

             MM.  J. A. FROWEIN, Acting President

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             M.   L. LOUCAIDES

13.     The text of this Report was adopted on 12 July 1990 and is now

transmitted to the Committee of Ministers of the Council of Europe in

accordance with Article 31 para. 2 of the Convention.

14.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is:

        i)      to establish the facts, and

        ii)     to state an opinion as to whether the facts found

                disclose a breach by the State concerned of its

                obligations under the Convention.

15.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the applications as Appendix II.

16.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.      The particular circumstances of the case

        a.  Institution of criminal proceedings

17.     As from 1980 demonstrations took place in Winterthur which

were directed, in part, against an international arms fair and the

export of nuclear technology to a South American country.

18.     At the same time explosions, fires and floodings damaged

certain public and private buildings in Winterthur.  An explosion

occurred in the home of Mr F., the then Federal Councillor (Bundesrat)

Head of the Department of Justice and Police, causing damages of

approximately 20,000 SFr.

19.     On 20 July 1984 the Winterthur police set up a task force to

investigate these offences.  A number of persons living in a commune

in Winterthur were kept under surveillance.  Their telephones were

tapped and the contents of their refuse bags were analysed.  On 20

November 1984 27 persons were arrested.  One Mr.  A.W. was remanded in

custody and eventually sentenced on 15 September 1986 by the Zurich

Court of Appeal (Obergericht) to eight years' imprisonment on the

grounds of having prepared, with others, the offences of arson and

causing an explosion.  While A.W. was remanded in custody, he was

represented by Mr.  R., a lawyer practising in Zurich with whom he was

able to communicate freely after 15 February 1985.

20.     On 21 November 1984 the applicant was arrested in Geneva on

suspicion of having participated in the above offences.  On the same

day, the applicant absconded.

21.     He was again arrested on 30 March 1985.  On 1 April 1985 the

applicant was heard by the Geneva authorities and he was then charged

with the offences of theft and of damage to property.  On 2 and

4 April 1985 the Federal Public Prosecutor (Bundesanwalt) transmitted

to the Geneva authorities statements raising charges against the

applicant which were served on him on 4 April 1985.  On 10 April 1985

the applicant was confronted with a number of charges, concerning

inter alia the explosion at Mr.  F.'s house, by officials of the

Federal Public Prosecutor's Office.  He did not make any statement.

22.     On 22 May 1985 the criminal investigations concerning the

charges brought by the Federal Prosecutor's Office were transferred to

the Zurich authorities, namely the Winterthur District Attorney's Office

(Bezirksanwaltschaft), and the applicant was brought, via Berne, to

Winterthur Prison.  On 28 May 1985 he was heard by the Winterthur

District Attorney and charged with the offences of having caused

explosions at the home of Mr F. as well as of arson at a civil protection

centre.  He was remanded in custody on the grounds of a danger of

his absconding and of collusion.  It was feared, in particular, that

he might conspire with other co-accused in order to procure an alibi.

23.     The charges brought against the applicant were extended on

7 June 1985 to the offences of setting fire to two houses at rifle

ranges (Schützenhäuser) and of flooding a business house as well as

damaging property by spraying graffiti on walls.

24.     On 19 July 1985 the charges brought by the Geneva authorities

were also transferred to the Wintherthur District Attorney's Office.

Other investigations conducted by the Geneva authorities concerning

arson, of which the applicant had so far not been charged, were also

transferred to Winterthur.  The applicant was informed of these

charges on 6 September 1985.

        b.  The applicant's communications with his lawyer

25.     In April 1985 the applicant asked his mother to enquire

whether Mr.  R., the lawyer representing A.W., would also represent

him.  On 30 April 1985 R. declined as he was overloaded with work,

though he recommended to the applicant a former office colleague of

his, namely the applicant's present lawyer.  On 1 May 1985 the

applicant signed a power of attorney in favour of his present lawyer.

26.     The applicant's oral communications with his present lawyer

were supervised from the first visit thereafter on 31 May 1985 until

10 January 1986.  Written communications between the applicant and his

lawyer were also supervised.  Thus, three letters of the applicant to

his lawyer dated 4, 6 and 21 May 1985 were intercepted and later

employed by the authorities to prepare graphological expert opinions.

27.     According to a letter of the Winterthur District Attorney's

Office to the Zurich Public Prosecutor's Office (Staatsanwaltschaft)

of 12 June 1985 the District Attorney's Office relied in respect of

these measures on Section 18 para. 2 of the Zurich Code of Criminal

Procedure (Strafprozessordnung) which envisages such supervision in

particular if there is a danger of collusion (see below, para. 70).

The District Attorney's Office saw such a danger in the fact that the

applicant's lawyer could conspire with other lawyers or accused.  In a

subsequent request of the District Attorney's Office to the Zurich

Public Prosecutor's Office for a prolongation of detention on remand

of 9 September 1985 reference was made to the danger that the

applicant might conspire with other accused who had meanwhile been

released, or that he might influence evidence in his favour.

28.     Only twice did unsupervised visits occur.  On 8 May 1985,

while still at Berne prison, the applicant was able freely to confer

with his present lawyer for thirty minutes.  Later, at Winterthur

prison, the applicant was able once to confer freely with another

lawyer, Dr.  H., who visited him upon instructions of the applicant's

mother.

29.     On 10 June 1985 the President of the Indictment Chamber

(Anklagekammer) of the Zurich Court of Appeal (Obergericht) officially

appointed, retroactively as from 4 May 1985, the applicant's defence

counsel.  The President also extended the applicant's detention on

remand until 12 September 1985.

30.     On 31 May 1985, the applicant conferred with his defence

counsel under the supervision of a certain Mr.  S., a police officer

dealing with the case (Sachbearbeiter).  Mr.  S. took notes and after

one hour stopped the discussion between the applicant and the defence

counsel on the grounds that, in his view, they were no longer talking

about the proceedings and that he, Mr.  S., still had other business to

attend to.

31.     The applicant filed an appeal (Beschwerde) in which he

complained that he was not allowed freely to confer with his defence

counsel.

32.     On 27 June 1985 the Indictment Chamber at the Zurich Court

of Appeal dismissed the appeal.  It found that the applicant was

seriously suspected of having committed the various offences and that

there was a grave danger of collusion in view of the extremely complex

and voluminous investigations being conducted by the authorities.  As

the applicant refused to make a statement, he could easily tamper with

the evidence, particularly as most of the other co-accused, with the

exception of A.W., had been released from detention.  The Indictment

Chamber observed that the applicant had maintained close contacts with

the other co-accused and that the offences with which they were charged

were very dangerous in that they constituted attacks against the order

of the State and society in general (Staats- und Gesellschaftsordnung).

33.     Finally, the Indictment Chamber saw a danger of unintentional

collusion by counsel, in that the applicant's defence counsel would

collaborate with the lawyer representing other co-accused, inter alia

with Mr.  R. who was defence counsel for A.W.  With reference to the

police officer's remarks on 31 May 1985 (see above para. 30) the

Chamber noted that the officer had asked the applicant and his lawyer

to come to an end as they were not talking about anything essential to

the procedure.  The Chamber found that it was clear that such a person

still had other things to do than supervise such conversations.

34.     In a separate appeal (Rekurs) the applicant also complained

that he had not been able to consult all the documents of the file and

that the proceedings concerning the legality of his detention had been

conducted without an oral hearing.  This appeal was dismissed on

18 July 1985 by the Indictment Chamber which also upheld the extension

of the applicant's detention on remand until 12 September 1985 in view

of the existing danger of collusion and of the applicant absconding.

35.     The applicant's detention on remand was subsequently prolonged

on 9 September and 12 December 1985.

36.     Against the decision of the Indictment Chamber of 27 June 1985

the applicant filed a further appeal (Rekurs) which was dismissed on

26 July 1985 by the Civil Chamber (Zivilkammer) at the Zurich Court of

Appeal.

37.     The Civil Chamber found that, as the applicant refused to

make a statement, he was in a position to conspire with other persons

involved in the proceedings in order to coordinate (abstimmen) his

eventual depositions.  It was to be assumed that the applicant would

pursue such a conspiracy with all possible means.  Insofar as Dr.  H.

had been able freely to confer with the applicant, the Civil Chamber

did not regard as credible the submissions of the present lawyer

according to which his contacts with the lawyers representing the

other co-accused were not more intensive than those which Dr H. had

with these lawyers.  The Civil Chamber noted that Mr.  R., who was the

defence counsel for A.W., had in fact told the District Attorney's

Office that the various lawyers would coordinate their position.

38.     The decision of the Civil Chamber of 26 July 1985 continues:

"Dieses Vorgehen ist zwar nicht unzulässig, doch muss es mit

dem Gebot der materiellen Wahrheitsfindung vereinbar sein.

Da die von Rechtsanwalt Garbade und Rechtsanwalt R.

verteidigten Angeschuldigten von ihrem Recht Gebrauch

machen, die Aussage strikte zu verweigern, ist die Gefahr

nicht von der Hand zu weisen, daß die Verteidiger nicht nur

ihr taktisches und rechtliches Vorgehen absprechen, sondern

allenfalls auch die materielle Wahrheitsfindung gewollt oder

ungewollt beeinträchtigen.  Unter diesen Umständen sind

gerade bei Delikten der vorliegenden Art, die als Angriffe

auf die Staats- und Gesellschaftsordnung aufzufassen sind,

genügend Anhaltspunkte gegeben, die auf eine Kollusions-

gefahr in der Person des Verteidigers hinweisen."

"Such a manner of proceeding may not be inadmissible, but it

must conform with the duty to find the substantive truth.

As the co-accused, represented by the lawyers Garbade and

R., have availed themselves of their right to remain silent,

the danger cannot be excluded that the defence counsels not

only coordinate their manner of proceeding in a tactical and

juridical way, but possibly also, intentionally or not,

impair the finding of the substantive truth.  In such

circumstances, there are sufficient indications which point

to a danger of collusion in the person of the defence

counsel, particularly in respect of offences, such as the

present ones, which must be considered as attacks against

the order of the State and society."

39.     The applicant then filed two public law appeals (staats-

rechtliche Beschwerden) against the decisions of the Indictment Chamber

of the Zurich Court of Appeal of 27 June and 18 July 1985, and of its

Civil Chamber of 26 July 1985.

40.     In his public law appeal of 19 August 1985 against the

decision of 18 July 1985 he complained under Article 6 para. 3 (b) of

the Convention in connexion with Article 5 para. 4 of the Convention

and with reference to a previous decision of the Federal Court

(Bundesgericht)that the supervision of the communications with his

lawyer rendered illusory the right to a procedure under Article 5

para. 4.  He claimed that his right to a fair hearing in the context

of this provision was invalidated in respect of the appeal proceedings

concerning the prolongation of his detention on remand.  In

particular, he alleged that the supervision made it impossible

confidentially to talk with his lawyer as to the means by which the

evidence adduced by the investigating authorities could be challenged.

The applicant also complained that he had not been granted,

independently of his lawyer, the right personally to consult his

case-file;  his lawyer had also not been able to make photocopies

thereof.

41.     In his second public law appeal of 27 August 1985 against the

decisions of 27 June and 26 July 1985 the applicant reiterated the

complaints made under Article 5 para. 4 in his previous public law

appeal.  He further complained that, due to the supervision of the

communications, everything he said to his lawyer was heard by the

prosecuting authorities, except if he renounced any contact with his

lawyer.

42.     These public law appeals were rejected in two decisions of the

Federal Court of 15 October and 4 December 1985.  On the first page of

both decisions the Court referred to Articles 5 para. 4 and 6 para. 3

(b) of the Convention.

43.     In its decision of 15 October 1985 the Federal Court

considered the procedure in which the legality of the applicant's

detention on remand was examined.  The Court found that at the latest

when preparing the trial the defence counsel was entitled to obtain

copies of the case-file for the applicant.  The Court also saw no

obligation to conduct an oral hearing in proceedings concerning the

prolongation of the applicant's detention on remand.  Finally, the

Court considered that the length of the applicant's detention on

remand had not yet exceeded the permissible maximum.

44.     On 4 December 1985, the Federal Court dismissed the applicant's

complaints concerning the supervision of his communications with his

defence counsel.  This decision was served on the applicant's lawyer

on 28 May 1986.

45.     The Court considered that it could only examine the decision

of the Civil Chamber of 26 July 1985 and that it was unaware of the

applicant's situation thereafter.  The Court dismissed at the outset

the applicant's complaints under Article 6 para. 3 (b) of the

Convention since he had not claimed that the supervision of the

contacts with his defence counsel had impaired the preparation of the

trial.  Rather, the applicant's complaints fell to be considered under

Article 4 of the Swiss Federal Constitution and Article 6 para. 3 (c)

of the Convention, as interpreted by the Commission's case-law.

46.     In the Federal Court's opinion, it was not arbitrary if the

Zurich authorities viewed the alleged offences as systematic attacks

against the order of the State and society, particularly if one bore

in mind the selection of the objects attacked.  Thus, the accused

persons appeared extraordinarily dangerous and it could well be

assumed that they would resort to illegal means even during the trial

proceedings.  As a result, regardless of the individual lawyer

concerned, the supervision of the applicant's contacts with his

defence counsel conformed with the Constitution and the Convention.

47.     The Federal Court considered further that if irregularities

occurred on the part of a defence counsel, it was in the first place

up to the disciplinary authorities to impose the necessary sanctions.

Nevertheless, even a defence counsel could, intentionally or not,

become an accomplice of the accused.  It could reasonably be said (mit

haltbaren Gründen) that such a situation could arise all the more in

respect of the applicant's defence counsel as he stood in close

contact with Mr.  R. who represented A.W. while the latter had been

able freely to confer with his defence counsel.  This did not in the

Court's opinion imply a discrimination against the applicant in as

much as A.W. had been detained much longer and was charged with other

offences.

48.     Meanwhile, the contacts between the applicant and his defence

counsel continued to be supervised.  Thus, notes for the file on

contacts between the applicant and his lawyer were prepared by the

supervising police officer on 23 August, 11 October and 18 December

1985.  According to the note of 23 August 1985 the applicant's lawyer

had to show the police officer documents which he was discussing and

exchanging with the applicant.

49.     In a letter to the Public Prosecutor's Office of 15 October

1985 the Winterthur District Attorney's Office explained that the

supervision served the purpose of preventing collusion between the

applicant and his lawyer.  The letter states that "the conversation

listened to can in any event probably not be used as evidence against

the accused" ("Als Beweismittel gegen den Angeschuldigten kann das

mitgehörte Gespräch wohl so oder so nicht verwendet werden").

50.     According to a note prepared for the file by a Winterthur

District Attorney on 21 October 1985, he told the applicant's lawyer

on that day that the supervision of communications would be stopped

when he, the District Attorney, had heard without interference by

third parties the applicant's views in respect of all charges brought

against him.  When the lawyer told the District Attorney that the

applicant would probably refuse to speak until he had unsupervised

contacts with the lawyer, the District Attorney replied that this was

the applicant's right.  Subsequently, by letter of 2 April 1986 to the

applicant's lawyer, the District Attorney recalled that the

applicant's lawyer had told him that the applicant would not comment

on the investigations; he, the District Attorney, therefore assumed

that the applicant had renounced his right to be heard on the reports and

minutes of the interrogations of witnesses.

51.     On 20 December 1985 the applicant again filed an appeal

(Beschwerde) in which he complained about the supervision and that his

defence counsel was not able to consult the case-file.  The Indictment

Chamber dealt with these complaints in two decisions.

52.     In its first decision of 8 January 1986 the Indictment Chamber

reserved for a later decision the issue of the supervision of the

applicant's contacts with his defence counsel in view of the fact that

the Public Prosecutor's Office envisaged unsupervised contacts after

9 or 10 January 1986.  The Chamber further found that the applicant

was suspected of having committed the offences at issue, and if the

investigations lasted a long time this was also due to the applicant's

refusal to make any statement.

53.     According to the subsequent decisions of the Federal Court of

30 November 1987, the applicant was permitted freely to communicate

with his lawyer as from 10 January 1986.

54.     On 10 July 1986 the Indictment Chamber gave its second

decision which complemented (Nachtragsbeschluss) the decision of

8 January 1986.  The Chamber found that the applicant now lacked legal

interest in his appeal as his contacts with his defence counsel were

no longer supervised.

55.     The Indictment Chamber then examined whether or not the

applicant had to bear the costs of the proceedings and whether he was

entitled to compensation.  In order to resolve this issue the Chamber

had to examine whether the applicant's appeal of 20 December 1985

would have been successful if the supervision of the contacts with his

defence counsel had continued.  The Chamber concluded that the

circumstances referred to in the decision of the Federal Court of

4 December 1985 had not changed until 20 December 1985.  As a result

the supervision had been necessary and the applicant's appeal would

probably have been dismissed.  In view of the procedure chosen by the

Indictment Chamber, resulting in two different decisions, the

applicant was nevertheless exempted from costs and expenses, though no

compensation was granted.

56.     The applicant's further appeal (Rekurs) was dismissed by the

Civil Chamber at the Zurich Court of Appeal on 19 January 1987, which

also considered that the applicant's appeal of 20 December 1985 would

probably have been dismissed.

57.     On 27 February 1987, the applicant filed a public law appeal

against the decision of 19 January 1987.  This appeal was dismissed by

the Federal Court on 30 November 1987.  The decision was served on the

applicant's lawyer on 7 December 1987.  The Federal Court found it

could only examine whether the Zurich authorities had arbitrarily

refused to grant compensation to the applicant on the ground that his

appeal of 20 December 1985 would probably have been dismissed.

58.     In the Court's view there continued to exist a danger of

collusion in respect of the applicant.  The investigations were

prolonged inter alia by the extraordinary number of offences with

which the applicant was charged, and it could be assumed, without

arbitrariness, that the relevant circumstances had not changed between

July and December 1985.

        c.   Indictment and trial

59.     On 26 March 1986 the Document Laboratory (Urkundenlabor) of

the Police of the Canton of Zurich (Kantonspolizei) prepared an expert

opinion for the Winterthur District Attorney's Office.  Therein it

considered that some of the anonymous letters following the offences

concerned (Bekennerbriefe) certainly stemmed from the applicant.

60.     On 28 July 1986 the final interrogation of the applicant took

place.  According to the minutes of the interrogation, counting 125

pages, the applicant remained silent while being confronted with the

charges brought against him.  The applicant's lawyer stated at the end

inter alia that the accusations were based merely on the assumption

that the applicant had anarchical views.

61.     On 21 August 1986 the Winterthur District Attorney's Office

submitted its final report of 235 pages on the investigations.

Therein, it charged the applicant with having participated on three

occasions in the offence of causing an explosion and of having

committed nineteen instances of arson, or attempted to do so.

The applicant was also charged with various instances of theft and with

damaging property and a railway line.  The damages amounted to a total

of approximately 7,670,000 SFr.  The file was then transmitted to the

Zurich Public Prosecutor's Office (Staatsanwaltschaft).

62.     On 12 September, 6 October and 22 December 1986 the applicant

unsuccessfully requested the Public Prosecutor's Office to take

further evidence.

63.     On 29 January 1987 the Zurich Public Prosecutor's Office

indicted the applicant with the various offences mentioned.  In his

reply of 1 April 1987 the applicant requested the taking of further

evidence.

64.     The applicant subsequently did not make use of his right to

choose that his trial should be conducted by the Jury Court

(Geschworenengericht) rather than the Zurich Court of Appeal acting

as Cantonal Court.  On 12 June 1987 the applicant was committed to

trial before the Zurich Court of Appeal.

65.     The trial was fixed for 14 January 1988.  On that day, the

applicant was not present and the Court adjourned the trial.  On

2 February and 15 September 1988 the Court ordered the preparation of

three graphological expert opinions.

66.     On 15 September 1988 the applicant was released from detention

on remand.

67.     A further expert opinion was prepared by 17 August 1989 and

served on the applicant on 23 August 1989.  The applicant was again

asked whether he wished to be tried by the Zurich Jury Court.

68.     On 11 December 1989 a new hearing was conducted before the

Zurich Court of Appeal at which the applicant was absent, without

giving reasons therefor.  After the applicant's lawyer had commented

on the applicant's absence, and the Public Prosecutor's Office had

replied thereto, the Court of Appeal gave its judgment in the

applicant's absence.  The Court convicted the applicant, inter alia,

of the preparation of explosives, of arson, theft and damage to

property.  The applicant was sentenced to seven years' imprisonment

from which the period spent in detention on remand, amounting to 1,291

days, was deducted.  The applicant was also ordered to pay the court

costs of 10,000 SFr.

69.     After having been served the judgment of the Court of Appeal,

the applicant objected thereto.  Thereupon, a new trial was held on

9 February 1990.  The applicant was not present.  After hearing the

applicant's lawyer and a member of the Zurich Public Prosecutor's

Office, the Court confirmed its judgment of 11 December 1989.

B.      Relevant domestic law and practice

70.     The domestic authorities relied, for the supervision of the

applicant's communications with his defence counsel, on paras. 1 and 2

of Section 18 of the Zurich Code of Criminal Procedure of 4 May 1919.

These provisions state:

"1.  Dem verhafteten Angeschuldigten ist schriftlicher und

mündlicher Verkehr mit dem Verteidiger gestattet, soweit der

Untersuchungszweck nicht gefährdet wird.

2.  Sobald der Verhaft über vierzehn Tage gedauert hat, soll dem

Angeschuldigten die Erlaubnis, sich mit dem Verteidiger frei und

unbeaufsichtigt zu beraten, ohne besondere Gründe, insbesondere

Kollusionsgefahr, nicht verweigert werden.  Nach Abschluss der

Untersuchung steht Angeschuldigten dieses Recht unbeschränkt zu.

..."

"1.  The accused who has been arrested must be granted written and

oral contact with a defence counsel insofar as this does not

impair the purpose of investigation.

2.  As soon as the detention on remand exceeds fourteen days, the

accused should no longer be refused, without special reasons, in

particular the danger of collusion, the permission to consult

freely and without supervision with his defence counsel.  Once

the investigations have been closed the applicant has this right

without limitation.

..."

71.     According to the case-law of the Federal Court, it follows

from Article 4 of the Swiss Constitution, which guarantees equality of

all persons, that the detained person has in principle the right to

communicate freely and without supervision with his defence counsel

(see ATF [Arrêts du Tribunal Fédéral] 105 Ia 380, 106 Ia 224).

Exceptions must have a statutory basis, lie in the public interest and

be proportionate.  Nevertheless, the accused must not be prevented

from preparing the trial together with his defence counsel (ATF

ibid.).  According to the Federal Court's case-law, even during the

investigation unsupervised contacts cannot be prohibited throughout.

In particular, it would be unlawful to allow unsupervised contacts

only after the investigations were closed (ATF 105 Ia 101).  Otherwise

the rights under Article 5 para. 4 of the Convention would become

illusory.

72.     According to Sections 25 et seq. of the Zurich Code of

Criminal Procedure the investigation of an offence is as a rule

conducted by the District Attorneys who in turn may be assisted by the

police.  Section 30 para. 1 states that the purpose of the

investigation is to determine the facts in order either to bring an

indictment or to terminate the proceedings.  According to para. 2 of

Section 30, the evidence must only be compiled to the extent

considered necessary to conduct a trial.  According to Section 162

para. 1 (2) the bill of indictment must determine inter alia "the

offences with which the applicant is charged with reference to all

circumstances relevant for the establishment of the offence and as far

as possible the exact reference to place and date and other individual

circumstances" ("die ihm zur Last gelegten Handlungen oder

Unterlassungen unter Angabe aller Umstände, welche zum gesetzlichen

Tatbestand gehören sowie unter möglichst genauer Angabe von Ort und

Zeit und anderen Einzelheiten").

III.   OPINION OF THE COMMISSION

A.      Points at issue

73.     The points at issue are

     a) whether there has been a violation of Article 6 para. 3 (c)

        (Art. 6-3-c) of the Convention in that the applicant was

        refused oral communications with his defence counsel without

        supervision by the authorities;

     b) whether the said supervision also constituted a violation of

        Article 6 para. 3 (b) (Art. 6-3-b) of the Convention;

     c) whether the said supervision also constituted a violation

        of Article 5 para. 4 (Art. 5-4) of the Convention.

B.      Article 6 para. 3 (c) (Art. 6-3)c) of the Convention

74.     The applicant complains that he was not allowed to

communicate freely, and without supervision, with his defence counsel

from the latter's first visit on 8 May 1985 onwards until 10 January

1986.  The applicant relies on Article 6 para. 3 (b) and (c)

(Art. 6-3-b, 6-3-c) of the Convention which provide, insofar as

relevant:

        "3.  Everyone charged with a criminal offence has the

        following minimum rights:

        ...

        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..."

75.     The applicant submits that, while the authorities justified

the supervision of communications on the ground of a danger of

collusion, they never indicated how his lawyer could conspire with

other persons, in particular, with other lawyers who were defending

co-accused in these proceedings.   In fact, during the period at

issue, the authorities undertook no investigations which were

susceptible to influence by a concerted action between the applicant

and his lawyer.  The applicant considers that he does not have to show

that the supervision caused prejudice; in any event, prejudice

occurred.  Thus the supervision hindered the preparation of his

defence, it prolonged the proceedings, and the notes of the

supervising officers were joined to the file as evidence.

76.     The respondent Government submit that the complaints under

Article 6 para. 3 (c) (Art. 6-3-c) are unfounded.  With reference to the

Commission's Report in the Can case (Can v. Austria, Comm. Report

12.7.84, Eur. Court H.R., Series A No. 96, p. 15 et seq. paras. 49

et seq.), the Government contend that the Convention does not

expressly guarantee an accused person's right to communicate freely

with his defence counsel.  Moreover, the entirety of the proceedings

must be considered.  The supervision of the applicant's communications

with his lawyer, from 31 May 1985 until 10 January 1986, was effected

in order to avoid collusion.  At the end of that period, the taking of

evidence was not yet definitely concluded.  For a period of two years

thereafter, until the trial was held, the applicant's lawyer could

freely communicate with the applicant and had full access to the file.

77.     The Government emphasise that the applicant had the choice of

having his trial conducted before the Zurich Jury Court, where the

proceedings would have been governed by the principle of the direct

taking of evidence, and the Zurich Court of Appeal, where the facts

would have been established mainly on the basis of the preliminary

investigation.  For unknown reasons the applicant opted for the

latter.  He is thus not in a position to complain that he did not

benefit from an equitable administration of evidence.  The Government

also refer to the case-law of the Federal Court according to which

communications with counsel may be supervised in exceptional cases,

if they are provided for by law, respond to a public interest, and

are proportionate.  These conditions were met in the present case, and

the applicant has failed to prove the contrary.

78.     The Government also submit that the applicant has not shown

that he suffered any prejudice when the communications with his

defence counsel were supervised.  Here, the Government consider that,

contrary to the Commission's opinion in the Can case (ibid., para. 55),

the functions of the lawyer worthy of protection under Article 6

para. 3 (c) (Art. 6-3-c) of the Convention concern only the

preparation and conduct of the trial and not, for instance, requests

of the accused to be released from detention on remand.

79.     The Commission observes that the applicant's complaints both

under Article 6 para. 3 (b) and para. 3 (c) (Art. 6-3-b, 6-3-c)

concern essentially the supervision by the Zurich authorities of his

communications with his defence counsel.

80.     The Commission recalls that the Convention does not expressly

guarantee the right of an accused to communicate freely with his

defence counsel, for the preparation of his defence or otherwise.

Nevertheless, as the Commision found in the Can case, the fact that

this right is not specifically mentioned in the Convention does not

mean that it may not be implicitly inferred from its provisions, and

in particular those of Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c).

The possibility for an accused to communicate with his lawyer is a

fundamental part in particular of his right to "have adequate time and

facilities for the preparation of his defence" within the meaning of

Article 6 para. 3 (b) (Art. 6-3-b, 6-3-c).  However, in the absence of

an express provision it cannot be excluded that the right to have

conversations with one's defence counsel, and exchange confidential

instructions or information with him, as implicitly guaranteed by

Article 6 para. 3 (Art. 6-3) of the Convention, is susceptible of

restrictions (see Can v. Austria, ibid., pp. 16 et seq., paras. 51 et

seq.).

81.     Article 6 para. 3 (c) (Art. 6-3-c) is not exclusively tied to

considerations relating to the preparation of the trial, but gives the

accused a more general right to assistance and support by a lawyer

throughout the proceedings.  The Commission also refers in this

context to the Artico case where the Court stated:

        "the Convention is intended to guarantee not rights that are

        theoretical or illusory but rights that are practical and

        effective; this is particularly so of the rights of the

        defence in view of the prominent place held in a democratic

        society by the right to a fair trial, from which they derive

        ...  Article 6 para. 3 (c) (Art. 6-3-c) speaks of 'assistance'

        and not of 'nomination'.  Again, mere nomination does not

        ensure effective assistance ..." (see Eur. Court H.R.,

        Artico judgment, ibid., p. 16, para. 33).

82.     The Commission is therefore called upon to examine in

particular the duration and nature of the supervision of the

applicant's contacts with his defence counsel; the relevance of the

supervision for the development of the proceedings as a whole; and any

special circumstances which may serve to justify the measure concerned.

83.     The Commission observes that in fact on 8 May 1985 the

applicant could freely confer with his defence counsel.  The

supervision then lasted from the lawyer's next visit on 31 May 1985

until 10 January 1986, i.e. for seven months and ten days.

84.     As to the nature of the supervision, the Commission observes

that according to the notes of 23 August, 11 October and 18 December

1985 (see above para. 48) the police officers present listened to the

conversation and made file notes thereof.  The applicant and his

lawyer also had to show to the police officer documents they were

using.  Furthermore, according to the decision of 27 June 1985 of the

Indictment Chamber of the Zurich Court of Appeal (see above paras. 30,

33), the police officer terminated the conversation between the

applicant and his lawyer on 31 May 1985 as in his, the police

officer's, view, the conversation no longer concerned anything

essential to the proceedings and he had other business to attend to.

85.     As regards the relevance of the supervision for the

development of the proceedings as a whole, the Government submit that

after 10 January 1986 the applicant was able to confer freely with his

lawyer for a period of two years until the trial on 14 January 1988.

This gave him plenty of time to prepare his defence for the trial.

86.     The Commission notes that on 22 May 1985 the criminal

investigations were transferred to the Winterthur District Attorney's

Office which then commenced with its investigations.  Approximately 15

months later, on 21 August 1986, the Office submitted its final report

on the investigations.  By this date the investigations leading to the

applicant's indictment were largely concluded.  Hence, the supervision

of the applicant's communications with his lawyer during seven months

in fact covered a substantial period - nearly half - of the duration

of these investigations.

87.     The Commission further considers that in the Canton of Zurich

the investigating proceedings serve the purpose of compiling evidence

which will determine inter alia the offences the accused will be

charged with at the trial (see above para. 72).  The investigations

thus bear directly on the preparation and conduct of the subsequent

trial.

88.     However, as a consequence of the above supervision the

applicant and his defence counsel were not able to discuss freely, as

the investigations proceeded and the evidence was compiled, the basic

facts of the case.  Moreover, the applicant and his defence counsel

had to fear that the statements expressed and recorded by the

supervising police officers would be used by the investigating

authorities to the applicant's detriment in the investigations, or

eventually at the trial.  Hence, the applicant was deprived of the

possibility to organise his defence effectively at an important stage

of the proceedings.

89.     It follows that the supervision at issue was of considerable

relevance for the further development of the proceedings.

90.     The Commission must therefore examine whether there existed

special circumstances warranting such substantial restrictions of the

defence.  According to the Government's submissions, the supervision

served the purpose of preventing collusion.  Likewise, in its decision

of 26 July 1985 the Civil Chamber of the Zurich Court of Appeal saw a

danger of the applicant's defence counsel collaborating with the

defence counsel of another co-accused (see above paras. 37 et seq.).

The Federal Court in its decision of 4 December 1985 also saw a

possibility of the lawyer becoming an accomplice to the applicant even

without being aware of it.  The Court further referred to the dangerous

character of the accused persons (see above paras. 44 et seq.).

91.     The Commission notes the serious and complex nature of the

offences with which the applicant was charged and which led to his

conviction by the Zurich Court of Appeal on 9 February 1990 (see

above para. 69).  The Commission also accepts that third persons,

with whom an accused is conferring while remanded in custody, may

succeed in seriously obstructing the authorities' investigations, and

indeed the accused's contacts with the outside world will frequently be

restricted.

92.     However, the present case concerns the restriction of the

accused's contact with his defence counsel.  On the one hand, the

Convention grants to the latter a privileged position with regard to

the fairness of the criminal proceedings instituted against the

accused.  On the other hand, the defence counsel is bound by

particularly stringent standards of professional conduct in respect of

which he remains responsible to a disciplinary body.  In cases where

doubts arise as to a lawyer's compliance with the rules of conduct

applying to his profession, it is for the competent authorities to

take the appropriate measures against the lawyer.  However, in the

Commission's opinion, it is not acceptable on the basis of vague

suspicions to interfere with an accused person's right to an effective

assistance by counsel.

93.     Moreover, where the dangerous character of the accused or the

complexity of the case calls for particular safeguards, the Commission

recalls that Rule 93 of the European Prison Rules (Recommendation

No.  R [87] 3 by the Committee of Ministers of 12 February 1987)

provides that "Interviews between prisoners and their legal advisers

may be within sight but not within hearing, either direct or indirect,

of the police or institution staff" (see also mutatis mutandis Can

v.  Austria, ibid., p. 16, para. 51).

94.     In view of the preceding considerations the Commission finds

that the supervision of the applicant's communications with his

defence counsel could not be justified by the special circumstances of

the case.  Given the long period during which the supervision was

upheld and the fact that the measure influenced the applicant's

position in the subsequent proceedings, the supervision cannot be

regarded as an admissible exception from the general rule under Article

6 para. 3 (c) (Art. 6-3-c) of the Convention.

        Conclusion

95.     The Commission concludes, by 14 votes to 1, that there has

been a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention in that the applicant was refused oral communications with

his lawyer between 31 May 1985 and 10 January 1986 without supervision

by the authorities.

C.      Article 6 para. 3 (b) (Art. 6-3-b) of the Convention

96.     The applicant alleges that the supervision of the oral

communications with his defence counsel also deprived him of his right

under Article 6 para 3 (b) (Art. 6-3-b) of the Convention to have

adequate time and facilities to prepare his defence.

97.     The Commission notes that from 10 January 1986, when the

restrictions on the communications between the applicant and his

defence counsel were lifted, until 14 January 1988, when the trial was

scheduled to open, two years lapsed during which communications in

private between the applicant and his defence counsel were

possible.  However, before the Commission the applicant has failed

sufficiently to indicate in what respect this time and any facilities

for the preparation were not "adequate", within the meaning of

Article 6 para. 3 (b) (Art. 6-3-b) , due to the prior restrictions.

98.    Nevertheless, even assuming that the interference complained of

did impair the applicant's right to adequate time and facilities for

the preparation of his defence as enshrined in Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention, this issue again relates to the facts

which the  Commission has already found to constitute a violation of

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention (see above paras.

74 et seq.).

        Conclusion

99.    The Commission concludes, by 14 votes to 1, that no

separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention.

D.      Article 5 para. 4 (Art. 5-4) of the Convention

100.    Article 5 para. 4 (Art. 5-4) of the Convention states:

        "4.  Everyone who is deprived of his liberty by arrest or

        detention shall be entitled to take proceedings by which the

        lawfulness of his detention shall be decided speedily by a

        court and his release ordered if the detention is not lawful."

101.    The applicant complains that his right to take proceedings

before a court within the meaning of Article 5 para. 4 (Art. 5-4)

became illusory in view of the lack of free communication with his

defence counsel. 102.    The Commission recalls the case-law of the

Convention organs according to which it is essential in proceedings,

in which the lawfulness of a person's detention is reviewed, that the

person concerned is afforded appropriate procedural guarantees (see

Lamy v. Belgium, Comm. Report 8.10.87, para. 87, Eur.  Court H.R.,

Series A no. 151, p. 23).  Among these guarantees features the

opportunity of the person concerned to be heard by the court either in

person, or where necessary through some form of representation (see

Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no.

33, p. 24, para. 60).  The Commission considers that this right

obtains a particular urgency in proceedings where the accused is

remanded in custody.  Thus, in discussing the question whether or not

to take proceedings under Article 5 para. 4 (Art. 5-4) of the

Convention, or what arguments to invoke, it is essential that the

accused should be in a position freely to communicate with his lawyer.

The latter in turn must have the opportunity to discuss, inter alia,

any weaknesses of his client's position without making the prosecuting

or investigating authorities aware thereof.

103.    However, in its examination of the applicant's allegations

under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention the

Commission has already found a violation in that the applicant was

refused oral communications with his defence counsel as from the

initial phases of the criminal investigation.  The Commission

considers that no separate issue arises under Article 5 para. 4

(Art. 5-4) of the Convention.

        Conclusion

104.    The Commission concludes by a unanimous vote that no

separate issue arises under Article 5 para. 4 (Art. 5-4) of the Convention.

E.      Recapitulation

105.    The Commission concludes, by 14 votes to 1, that there has

been a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention in that the applicant was refused oral communications with

his lawyer between 31 May 1985 and 10 January 1986 without supervision

by the authorities (para. 95).

        The Commission concludes, by 14 votes to 1, that no

separate issue arises under Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention (para. 99).

        The Commission concludes by a unanimous vote that no

separate issue arises under Article 5 para. 4 (Art. 5-4) of the Convention

(para. 104).

Secretary to the Commission          Acting President of the Commission

       (H.C. KRÜGER)                          (J.A. FROWEIN)

                     Dissenting opinion of Mr.  H.G. Schermers

        I find this case difficult.  There are two aspects to it.  On

the one hand communication between a person charged with a criminal

offence and his lawyer should be free and confidential.  On the other

hand it is of great public interest that crime can be effectively

prosecuted.

        In the present case a risk of collusion was established.  It

is not entirely clear what this actually meant, but I assume that the

authorities feared that the applicant would construct his defence not

so much on the actual facts but on a story made up on the amount of

proof collected by the prosecution and possibly on testimonies of

witnesses who were not telling the truth.  To prevent this the

applicant was kept in isolation and his communications to the outside

world were controlled.  Is it then acceptable to exclude the lawyer

from such control?

        One may submit that lawyers are bound by particular

stringent standards of professional conduct in respect of which they

remain responsible to a disciplinary body (see para. 93 of the

Report).  This means that lawyers should have the benefit of the

doubt.  As long as it has not been demonstrated that they are

unworthy of their position they should be trusted by the authorities.

But this also means that the lawyer is restricted in his

communication with his client.  He should not discuss his case

with possible witnesses or with the co-accused, nor with their

lawyers.  He should stay away from any possibly false stories and not

listen to any ideas of his clients which are clearly based on untrue

facts.  Furthermore, he should be careful not to pass on any

information or requests brought to him by third persons for the

information of the client or by the client for the information of

third persons, because even if appearing innocent such communications

may contain secret messages.  Free communication between lawyer and

isolated client is possible, but at the expense that the lawyer must

be continuously on his guard and will speak less openly and less

freely with his client than he could otherwise do.

        A wedge should not be driven between the accused and his

lawyer.  For the accused it is important that he can have full

confidence in his lawyer, that his lawyer is "in his camp", not in

that of the investigating and prosecuting authorities and that he

experiences it that way.  The accused may lose confidence when he gets

the impression of being censured by his lawyer.  There is some merit

in the submission that lawyer and client "are one".  Psychologically,

it is important for a prisoner to have somebody in whom he can have

full confidence, who, mentally, belongs to him.  Any feeling of

difference in task may be harmful.

        However high the standard of lawyers may be, one should not

exclude that there may be lawyers who co-operate with their clients in

frustrating the prosecution.  It is true that measures can be taken

against them, once such co-operation has been proven, but there is a

large area where no proof is possible, where the co-operation may not

be mala fide or can not be proven to be so.  This may lead to all

kinds of vague suspicions against lawyers, which may be detrimental

to the co-operation between the prosecution and the lawyer or (even

worse, as it leads to a sort of discrimination) between the

prosecution and a particular group of lawyers.  By excluding the

possibility of collusion via the lawyer, suspicions and any

distinction between more or less reliable lawyers can be prevented.

        It may not be wrong, therefore, to extend the isolation of a

suspect to his lawyer.  This means that during a period of

investigation, when there is a risk of collusion, it may be necessary

to restrict the contact between the lawyer and his client, either by

not admitting the lawyer during some time or by controlling him.  Of

these two possibilities, the latter, however undesirable, is to be

preferred.  To prevent a suspect from consulting a lawyer would lead to

his complete isolation.  Apart from being contrary to the Convention,

that would also be psychologically harmful to the suspect.

        I find it difficult to decide.  With the other members of the

Commission I attach great weight to the free communication between

client and lawyer.  Maybe, weighing all arguments, a full protection

of this confidential relationship is to be preferred.  But that does

not mean that the other solution is an infringement of fundamental

human rights.  For finding a violation of the Convention more is

needed than a failure in finding the optimal solution.  In the present

case I cannot accept that the solution found by the Swiss authorities

is so wrong that it constitutes an infringement of the European

Convention on Human Rights.

                                APPENDIX I

                         HISTORY OF PROCEEDINGS

Date                    Item

__________________________________________________________________

18 November 1986        Introduction of Application No. 12629/87

5 January 1987          Registration of Application No. 12629/87

28 May 1988             Introduction of Application No. 13965/88

20 June 1988            Registration of Application No. 13965/88

Examination of admissibility

12 December 1988        Commission's decision to join the applications

                        and to invite the Government to submit

                        observations on their admissibility and merits

27 February 1989        Government's observations

10 April 1989           Applicant's observations in reply

9 November 1989         Commission's decision to declare the

                        applications partly admissible

Examination of the merits

20 December 1989        Applicant's supplementary observations

5 January 1989          Government's supplementary observations

10 February 1990        Commission's consideration of the state

                        of the proceedings

3 July 1990             Commission's deliberations on the merits

12 July 1990            Commission's final vote and adoption of the Report

 

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