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 12 January 1994, the following members being present:
MM. A. WEITZEL, President
S. TRECHSEL
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant, 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 (Bücherexperte und Steuerberater) 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 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 further questioned by the Cantonal Police regarding
details of the Bahamas development project and his financial
transactions in this context. In these interrogations the applicant
was not assisted by his defence counsel nor was an interpreter present.
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.
Furthermore, 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, namely entries into his business
diary, a note concerning the investment in the Bahamas development
project written by the applicant in 1985 and backdated to
29 September 1983, the facts that he did not inform M.P. of the
investment although he met him on 28 September 1983 and that the
applicant, rather than using the accounts of the Trust in the first
place, took a loan and gave the Trust's accounts as security and that
account sheets of the J.B. bank were withheld from M.P.
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 follow his version of the events.
The Court of Appeal also dismissed the applicant's request for
hearing R.P. as witness. The Court of Appeal found that the hearing
of this witness was not necessary as he would either confirm the
version of the applicant as presented in the police interrogations,
which would not ameliorate the applicants's situation or he would state
that M.P. did give his consent to the investment. This, however, would
be a completely implausible statement, made for the purpose to protect
the applicant and also R.P. himself, as he also had received money out
of the investment made with the Trust's funds.
On 1 October 1990 the Zurich Court of Cassation (Kassations-
gericht) dismissed the applicants plea of nullity (Nichtigkeits-
beschwerde). The Court of Cassation found that an anticipated
assessment of evidence was admissible in cases where, even if the
envisaged proof would be produced, this proof would not influence the
result of the evidence. Therefore, the Court of Appeal correctly
refused to hear R.P. as witness.
The Court of Cassation held further that the applicant's
statements before the police should be used in the proceedings before
the Court of Appeal. The use of these transcripts was in accordance
with cantonal procedural law as the applicant had the possibility to
express his view on important issues which arose during the police
enquiries when he was heard by the District Attorney. Furthermore, the
applicant was heard at length during the trial. There he was also
confronted with his statements before the police. As regards the
applicant's argument that his command of German was insufficient and
therefore his statements before the police were wrongly recorded, the
Court of Cassation found that the Court of Appeal had dealt
sufficiently with this issue and the applicant had not given any
convincing arguments against the Court of Appeal's findings. Moreover,
there were no indications that the transcripts of his interrogations
by the police were incorrect.
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
was 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.
Moreover, these transcripts were incorrect as the applicant, who was
not assisted by an interpreter or by a defence counsel during the
police interrogations, he had no possibility of noting that his
statements concerning R.P. were omitted by the police.
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
Cassation Court's arguments were wrong, therefore the Federal Court
could not deal with this complaint. As regards the applicant's
complaint that the transcripts of his interrogation by the police
should not have been used in the proceedings, the Federal Court held
that the applicant had not shown that the findings of the Cassation
Court were unreasonable. Furthermore, also as regards the applicant's
argument that the transcripts of his interrogations by the police were
incomplete as they did not contain a reference to R.P. as witness for
the defence, the applicant had not shown that the Court of Cassation's
arguments were wrong.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 and 3 (c) and (e)
of the Convention about his conviction and in particular that the
transcripts of his questioning by the police in the course of the
preliminary investigations were used in the trial although he was
questioned in the absence of a defence counsel. His defence counsel
was not allowed to participate in his interrogation by the police and
could only participate on two occasions at the hearing of witnesses by
the District Attorney.
He also submits that he had been questioned by the police in the
absence of an interpreter although his command of German was not
sufficient. As a consequence, the transcripts of his questioning were
not correct. At the trial before the Court of Appeal in 1988 and 1989,
the presence of an interpreter proved that the Court of Appeal was
convinced that his command of German was not sufficient.
2. The applicant complains further under Article 6 para. 1 and 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.
3. Lastly, he complains under Article 6 para. 2 of the Convention
that he had not been proved guilty according to law. He submits that
his statements before the police had been used in the trial in
violation of domestic procedural law.
THE LAW
1. With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its task is to ensure the observance of
the obligations undertaken by the parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
As regards the applicant's complaints that the transcripts of his
questioning by the police had been used in the trial, though he was
questioned in the absence of a defence counsel and an interpreter, the
Commission recalls that the guarantees contained in paragraph 3 of
Article 6 (Art. 6) 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 (c) and (e)
(Art. 6-1+6-3-c+6-3-e) (see Eur. Court H.R., Bönisch judgment of
6 May 1985, Series A no. 92, p. 15, para. 29; Unterpertinger judgment
of 24 November 1986, Series A no. 110, p. 14, para. 29).
The Commission notes that on 9 May 1985 a defence counsel was
appointed for the applicant. This counsel did not participate in the
interrogations before the police but only on two occasions when the
District Attorney heard witnesses. However, the applicant did not
submit that he requested to be accompanied by his lawyer to his
interrogations by the police. Moreover, the applicant's lawyer was
present at the final interrogation on 26 November 1986, on which
occasion the applicant was confronted with the accusations laid against
him. The applicant's lawyer was also present at the trial where he
could call in question conclusions drawn from the statements made by
the applicant upon his interrogation.
The Commission notes further that the Court of Appeal, in its
judgment of 8 March 1989, dealt extensively with the applicant's
complaint that he had no sufficient command of German and concluded
that the applicant did sufficiently understand German. These findings
were confirmed by the Court of Cassation and the Federal Court in their
respective judgments. The Commission also notes that there is no
indication that at the time of his interrogation by the police, the
applicant had asked for the assistance by an interpreter, especially
after having been assisted by counsel.
Under these circumstances the Commission, finds that there is no
appearance of a violation of the applicant's right to a fair hearing
in this respect.
This part of the application, therefore, is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains further 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.
The Commission considers that it cannot, on the basis of the
file, determine whether there has been a violation of Article 6 para.
1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention as regards this
complaint without the observations of both parties.
The Commission therefore adjourns this part of the application.
3. The applicant finally complains under Article 6 para. 2
(Art. 6-2) of the Convention that he had not been proved guilty
according to law. He submits that his statements before the police
had been used in the trial in violation of domestic procedural law.
The Commission recalls that the presumption of innocence will be
violated if, without the accused's having previously been proved guilty
according to law, a judicial decision concerning him reflects an
opinion that he is guilty (Eur. Court H.R., Barberà, Messegué and
Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67
et seq.).
In the present case, it does not appear from the evidence that
during the proceedings, and in particular the trial, the Zurich Court
of Appeal had taken decisions or attitudes reflecting such an opinion.
It follows that there is no appearance of a violation of the
applicant's right under Article 6 para. 2 (Art. 6-2) of the Convention.
This part of the application, therefore, is also 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
DECIDES TO ADJOURN its examination of the complaint as regards
the Court of Appeal's refusal to hear R.P. as a witness for the
defence;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy