AS TO THE ADMISSIBILITY OF
Application No. 18959/91
by S.E. K.
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, 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 13 September 1991
by S.E. K. against Switzerland and registered on 17 October 1991 under
file No. 18959/91;
Having regard to:
- its decision of 12 January 1994 rejecting part of the
application;
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
31 March 1994 and the observations in reply submitted by the
applicant on 19 August 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, a citizen of the United States born in 1945 and
residing since 1972 in Zurich, is a certified public accountant and tax
consultant (Steuerberater und Bücherexperte) by profession. Before the
Commission he is represented by Mrs. V. Delnon, a lawyer practising in
Zurich.
In 1982 M.P., a Mexican citizen, entrusted the applicant with the
establishment and administration of a trust in Liechtenstein and
transferred for this purpose a sum of 6 million US-Dollars to
Switzerland. This trust, the S. Trust, was established by the
applicant on 20 September 1982 and an account for the S. Trust opened
at the J.B. bank.
In February 1985 M.P.'s lawyer requested that an information
(Strafanzeige) be laid against the applicant, accusing him of having
embezzled money entrusted to him for the use of the S. Trust.
On 18 and 25 April 1985 the applicant was questioned by the
Zurich Cantonal Police (Kantonspolizei). According to the transcripts
of the interrogation of 18 April 1985 the applicant stated that on his
proposal R.P., a real estate agent residing in the United States with
whom the applicant was doing business, had contacted M.P. and presented
to him a real estate development project on the Bahama Islands. The
applicant stated further that R.P., after having presented the project
to M.P., had informed the applicant that M.P. did like the project but
had not formally given his consent to an investment into the project.
On 9 May 1985 the President of the Zurich District Court
(Bezirksgericht) appointed an ex officio defence counsel for the
applicant.
On 9 May 1985, 14 October 1985 and on 15 October 1985, the
applicant was questioned by the Cantonal Police.
On 24 May 1985 the applicant requested the District Attorney to
hear three witnesses, inter alia the real estate agent R.P.
On 26 November 1986 the applicant, in the presence of his defence
counsel, was heard by the Zurich District Attorney (Bezirksanwalt) on
the charges against him. According to the transcript of the
interrogation the applicant, inter alia, stated that M.P. had wanted
to go ahead with the real estate development project, that he had not
got the consent to the project directly from M.P. and that he had
thought that M.P. had been informed about the investment by R.P.,
though not directly by the applicant.
On 17 June 1987 the Zurich Public Prosecutor's Office preferred
a bill of indictment on the applicant accusing him of having embezzled
funds of the S. Trust and having invested them into a real estate
development project on the Bahama Islands.
On 9 September 1987 the Indictment Chamber (Anklagekammer) of the
Zurich Court of Appeal (Obergericht) allowed the indictment and decided
that the trial against the applicant be held before the Court of Appeal
sitting as court of first instance.
On 20 April 1988 the applicant requested the Court of Appeal to
hear R.P. as witness for the defence in the trial.
On 27 April 1988 the first hearing before the Court of Appeal
took place. In the course of the hearing the applicant's lawyer
requested the Court of Appeal to hear R.P. as witness. During the
trial an interpreter was present.
On 17 May 1988 the Court of Appeal adjourned the trial for taking
further evidence, i.e. to request from the J.B. bank all the documents
concerning the S. Trust and to hear M.P. and G.L., a former employee
of the applicant, as witnesses. On 18 November 1988 these witnesses
were heard by one of the judges sitting in the applicant's trial at the
Court of Appeal in the presence of the applicant's lawyer.
On 8 March 1989 a further hearing before the Court of Appeal took
place and again the applicant's lawyer requested the Court to hear R.P.
as witness.
On the same day the applicant was convicted for embezzlement and
sentenced to 21 months of imprisonment.
The Court of Appeal found that on 29 September 1983, at a time
when the applicant had been under financial strain, he had taken a loan
from the J.B. Bank and pledged the funds of the S. Trust as security.
The applicant used the money for the purchase of land on the Bahamas
by a firm owned by him. As the applicant could not pay back the loan,
the J.B. bank eventually seized the security given and after October
1984, refused to give any more loans.
The Court of Appeal noted that the applicant did not contest the
essential facts of the charge laid against him but denied that he had
made the investment without M.P.'s consent. The applicant had changed
his version of the events in the course of the proceedings. Initially,
at the time of the police investigations, the applicant had maintained
that he had acted in the interest of M.P., who did like the project,
although without the latter's formal consent. Then, a week before the
trial, in his request for further evidence, the applicant maintained
that R.P. actually had been given the order to invest in the Bahama
project by M.P. According to the applicant this change was due to the
fact that he had no sufficient command of German and therefore the
statements as recorded in the transcript of the police interrogations
were not correct. The Court of Appeal, however, found that the
applicant did sufficiently understand German as he had made his
statements in the trial in German.
The Court of Appeal considered that the version of the events as
presented by the applicant in the police interrogations was
corroborated by further evidence. The Court of Appeal noted that on
28 September 1983, the day before the applicant made the investment,
M.P. had visited the applicant in his office in Zurich, but the
applicant neither discussed the project with M.P., nor informed him of
the imminent investment. If the applicant had really received from
R.P. the instruction to make the investment, it was improbable that he
would not have discussed the project at all with M.P. Also the fact
that the applicant, rather than using the accounts of the Trust in the
first place, took a loan and pledged the Trust's accounts as security
and that he withheld account sheets of the J.B. bank from M.P,
confirmed that he had made the investment without M.P.'s consent.
Furthermore, the applicant's initial statements were also in accordance
with a note he had written in English on 7 February 1985, and which
reads as follows:
"Prior to September 29, 1983 R.P. was requested by M.P. to visit
him in Mexico in order to present the S.A. project. R.P.
reported to me after his return from Mexico that M.P. thought it
was a very good project. - In addition R.P. reported that one of
M.P.'s sons was most excited about the project and that he
indicated a desire to acquire the property individually or
jointly with some friends and associates. It was felt by me that
inspite of this considerable interest a more conservative
approach would be as lender to the project with a guaranteed
return substantially above the Eurodollar interest rate allowing
for as well a conversion to equity in the project at a later date
should it be so desired."
The Court of Appeal noted further that M.P. had stated in the
proceedings that he had not been informed about the investment and the
use of the funds of the Trust. According to the Court of Appeal, M.P.
was not a wholly credible witness, but after scrutiny of his statements
it could accept his version of the events.
The Court of Appeal also dismissed the applicant's request for
hearing R.P. as witness and gave the following reasons:
"It is superfluous to hear R.P. as witness. If R.P. would simply
confirm what the accused had stated at the beginning of the
investigations, the statements of the witness could in no way
exonerate the accused. If, however, the witness would confirm
the later version of the events given by the applicant, his
statements could not be considered as relevant evidence. Such
statements would indeed be wholly incredible as the applicant
would have had the strongest interest in giving this account of
the events himself and from the very beginning. A statement of
R.P., confirming the later version of the events given by the
applicant must be considered as a testimony given merely as a
favour (Gefälligkeitsaussage) and, possibly, as a justification
for the witness himself, who had received the amount of 200,000
US$ in connection with land purchase at issue."
On 26 May 1989 the applicant filed a plea of nullity
(Nichtigkeitsbeschwerde) with the Zurich Court of Cassation
(Kassationsgericht). The applicant submitted, inter alia, that the
Court of Appeal had refused to hear R.P. as witness although he had
repeatedly requested such a hearing. The Court of Appeal had refused
this request with arguments based on an anticipated assessment of
evidence.
On 1 October 1990 the Court of Cassation dismissed the
applicant's plea of nullity. The Court of Cassation found that an
anticipated assessment of evidence was admissible in cases where, even
if the envisaged evidence were adduced, the evidence could not
influence the result of the evidence. Therefore, the Court of Appeal
correctly refused to hear R.P. as witness.
On 21 November 1990 the applicant introduced a public law appeal
(staatsrechtliche Beschwerde) to the Federal Court (Bundesgericht).
He submitted in particular that his request for hearing R.P. as witness
had been refused by the Court of Appeal with arguments of anticipated
assessment of the evidence. He further submitted that the Court of
Appeal in refusing his request for hearing R.P. as witness had simply
relied on the transcripts of the applicant's interrogation by the
police though these transcripts should not have been used in the trial.
On 7 March 1991 the Cassation Chamber (Kassationshof) of the
Federal Court dismissed the applicant's public law appeal.
The Federal Court held that the Court of Cassation had given
sufficient reasons why it was not necessary to hear R.P. as a witness
in the proceedings. In his appeal the applicant had not shown why the
Court of Cassation's arguments were wrong, therefore the Federal Court
could not deal with this complaint.
COMPLAINTS
The applicant's remaining complaint under Article 6 para. 1 and
3 (d) of the Convention concerns the Court of Appeal's refusal to hear
R.P. as witness for the defence. He considers that the Court of Appeal
relied on considerations which amounted to an anticipated assessment
of evidence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 September 1991 and
registered on 17 October 1991.
On 12 January 1994 the Commission's decided to communicate the
applicant's complaint under Article 6 para. 1 of the Convention as
regards the Court of Appeal's refusal to hear R.P. as a witness for the
defence and declared inadmissible the remainder of the application.
On 31 March 1994 the respondent Government submitted their
observations and on 19 August 1994, after extension of the time limit,
the applicant submitted his observations in reply.
THE LAW
1. The applicant complains under Article 6 para. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention that the Court of Appeal refused
to hear R.P. as witness for the defence, relying on considerations
which amounted to an anticipated assessment of evidence.
Article 6 para. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention,
as far as relevant, reads as follows:
"(1) In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ..."
"(3) Everyone charged with a criminal offence has the following
minimum rights:
(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;
2. The Government submit that the applicant failed to exhaust
domestic remedies because the Federal Court rejected his public law
appeal insofar he complained about the refusal to hear R.P. as witness.
The Federal Court found that the applicant had failed to substantiate
why the considerations of the Court of Cassation that an anticipated
assessment of evidence had been lawful in the present case were wrong
and, thus, had not complied with procedural requirements in this
respect. Moreover, the applicant relied for the first time in his
application to the Commission on Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention, while in the domestic proceedings
he had only invoked Article 4 of the Federal Constitution, which
guarantees a right to be heard including a prohibition of denial of
justice and of arbitrary decisions, and had complained of an unlawful
interference with his right to defence.
The applicant submits that both in his plea of nullity before the
Zurich Court of Cassation and in the public law appeal before the
Federal Court he had complained that the refusal to hear R.P. as
witness was unlawful. In particular, in his public law appeal to the
Federal Court he had complained under Article 4 of the Federal
Constitution that the refusal to hear R.P. as witness constituted an
unlawful anticipated assessment of evidence and thus a denial of a fair
hearing. The Federal Court dealt with this complaint and came to the
conclusion that the Court of Cassation had dealt sufficiently with this
issue so that there was no violation of Article 4 of the Federal
Constitution. In complaining about a violation of his right to a fair
hearing (Gewährung rechtlichen Gehörs) guaranteed by Article 4 of the
Federal Constitution he had invoked the guarantees enshrined in Article
6 para. 3 (d) and Article 6 para. 1 (Art. 6-3-d, 6-1) of the
Convention.
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with a matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law, and within a period of six months form the date on which the final
decision was taken.
The Commission recalls that domestic remedies within the meaning
of Article 26 (Art. 26) of the Convention have been exhausted if,
before the highest domestic body, the applicant has submitted in
substance his complaint before the Commission, even without particular
reference to the Convention (No. 7299/75 and 7496/76, Dec. 4.12.79,
D.R. 18 p. 5; No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63). There is
no exhaustion when a domestic appeal is not admitted because of a
procedural mistake (No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79; No.
10107/82, Dec. 12.7.84, D.R. 38 p. 90).
The Commission notes that, in his plea of nullity to the Court
of Cassation of 26 May 1989, the applicant complained unsuccessfully
about the Court of Appeal's refusal to hear R.P. as witness. On 21
November 1990 he lodged a plea of nullity with the Federal Court in
which he reiterated this complaint and invoked Article 4 of the Federal
Constitution. On 7 March 1991 the Federal Court rejected this part of
the applicant's public law appeal as it found that the Court of
Cassation had given sufficient reasons why it had not been necessary
to hear R.P. as a witness in the proceedings, and that the applicant
had not shown why the Court of Cassation's arguments were wrong.
In these circumstances, the applicant had complained in substance
before the Federal Court, relying on Article 4 of the Federal
Constitution, about the refusal to hear R.P. as witness. The Federal
Court rejected this complaint, but in concluding that the applicant had
failed to show that the Court of Cassation's reasoning regarding the
refusal to hear R.P. as witness were wrong the Federal Court in fact
endorsed the findings of the Court of Cassation.
The Commission therefore considers that the applicant has
exhausted domestic remedies within the meaning of Article 26 (Art. 26)
of the Convention.
3. The Government submit further that in deciding whether a request
for evidence should be granted or not, domestic courts have a wider
margin of appreciation as regards witnesses for the defence. Only
under exceptional circumstances the refusal to hear such a witness
would violate the Convention, e.g. when the domestic court failed to
give any reasons why it considered a witness irrelevant to the
proceedings. In its judgment of 8 March 1989 the Court of Appeal gave
sufficient reasons why it found that the hearing of R.P. as witness was
irrelevant for the proceedings. In arriving at this conclusion the
Court of Appeal took in particular into account that the applicant
initially admitted not having any instruction by M.P. to use the
trust's funds for the investment at issue, which was also corroborated
by a note the applicant had written on 7 February 1985. Furthermore,
though M.P. had visited the applicant on the day before the investment
was made, the project was not discussed by them. If the applicant had
really received from R.P. the instruction to make the investment, it
was improbable that he would not have discussed the project and the
details of the investment with M.P. The Court of Appeal concluded that
under such circumstances evidence of R.P., confirming the applicant's
subsequent allegation that he had made the investment at issue on the
instruction by M.P., would be implausible and, thus, irrelevant to the
proceedings. The Court of Appeal's refusal to hear R.P. as a witness
thus did not violate Article 6 para. 1 and 6 para. 3 (d)
(Art. 6-1, 6-3-d) of the Convention.
The applicant submits that in the criminal proceedings against
him the outcome of the meeting between M.P. and R.P. in Mexico was of
decisive importance. However, of the two persons who attended the
meeting only one, M.P., was heard by the Court of Appeal as a witness
for the prosecution. This witness had a vested interest as he was the
injured party and was, as the Court of Appeal acknowledged, not a
person beyond all doubt. The applicant could not refute his
statements, as he had not been present at the meeting. Moreover, the
arguments on which the Court of Appeal based its refusal to hear R.P.
as witness only relate to circumstantial evidence. If the witness for
the defence would have corroborated the applicant's version of the
events, the circumstantial evidence would no longer have been
sufficient to prove his guilt. The court's refusal to hear R.P. as
witness for the defence therefore violated Article 6 (Art. 6) of the
Convention.
The Commission recalls that the guarantees contained in
paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific
aspects of the general concept of fair trial set forth in paragraph 1
of this Article. In the circumstances of the present case, it will
consider the applicant's complaint from the angle of paragraph 1 taken
together with the principles inherent in paragraph 3 (d) of Article 6
(Art. 6-3-d) (see Eur. Court H.R., Unterpertinger judgment of
24 November 1986, Series A no. 110, p. 14, para. 29).
As a general rule it is for the national courts, and in
particular the court of first instance, to assess the evidence before
them as well as the relevance of the evidence which the accused seeks
to adduce (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of
6 December 1988, Series A no. 146, p. 31, para. 68). Article 6 para.
3 (Art. 6-3) of the Convention does not give the accused an unlimited
right to have witnesses called (No. 8417/78, Dec. 4.5.79, D.R. 15
p. 200). Domestic Courts may thus exercise some discretion, provided
that the Convention and particularly the right to a fair hearing are
respected in deciding whether the hearing of a defence witness is
likely to help to establish the truth (No. 8231/78, Dec. 6.3.82, D.R.
28, p. 5).
With regard to the hearing of witnesses, a distinction should be
made between witnesses against and witnesses on behalf of the accused.
In respect of the former, an accused should, as a rule, be given an
adequate and proper opportunity to challenge and question a witness
against him, either at the time the witness was making his statement
or at some later stage. In respect of the witnesses on behalf of the
accused, only exceptional circumstances could lead the Convention
organs to conclude that a refusal to hear such witnesses violated
Article 6 (Art. 6) of the Convention (see Vidal v. Belgium, Comm.
Report 14.1.91, Series A no. 235-B, pp. 38-39, paras. 47-49; Eur. Court
H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para.
89). Thus, the complete silence in a judgment as to why the court
rejected the hearing of a witness for the defence is not consistent
with the concept of a fair trial which is the basis of Article 6
(Art. 6) of the Convention (see Eur. Court H.R., Vidal judgment of
22 April 1992, Series A no. 235-B, pp. 32-33, paras. 33-34).
In the present case the Court of Appeal, in its judgment of
8 March 1989, indicated in detail the reasons why it did not consider
it necessary to hear this witness. The Court of Appeal found that his
statements would be irrelevant to the case, as the witness could either
confirm the version of the events which had, in the meantime, been
corroborated by various further evidence, or make statements in order
to protect the applicant and himself which in view of the results of
the other evidence would be implausible from the outset.
While the above reasoning of the Court of Appeal by which it
expressed an opinion on the credibility of a witness without having
heard him is open to criticism, the Commission, having regard to the
context in which this statement was made and the particular
circumstances of the case, finds that the Court of Appeal sufficiently
explained why it considered the statements of this witness as
irrelevant to the proceedings. There are no indications that the Court
of Appeal rejected the applicant's request in an arbitrary or unfair
manner.
In these circumstances the Commission finds that there is no
appearance of a violation of the applicant's right to a fair hearing.
The application, therefore, is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy