AS TO THE ADMISSIBILITY OF
Application No. 17601/91
by Bernhard SENN
against Switzerland
The European Commission of Human Rights (First Chamber)
sitting in private on 7 April 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. 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 20 November
1990 by Bernhard Senn against Switzerland and registered on 7
January 1991 under file No. 17601/91;
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 submitted by the applicant, may be
summarised as follows:
The applicant, a Swiss citizen born in 1948, is a real
property agent. Before the Commission he is represented by Mr. R.
Bühler, a lawyer practising in Lucerne.
In the 1960s and 1970s the applicant and his brothers founded
various companies in the Canton of Uri dealing mainly with real
property. In 1977 and 1978 these companies merged with two
building firms and became the C. AG with its seat in the Canton of
Lucerne. Further companies were founded of which many went
bankrupt after 1981.
Proceedings leading to the Federal Court's decisions of 29 March
1990
On 18 May 1981 the Investigation Office (Verhöramt) of the
Canton of Uri instituted criminal investigations against the
applicant and his brother on suspicion of their having committed
various economic offences. In December 1981 the Investigation
Office appointed the R. AG, a consultancy firm, to prepare an
expert opinion as to whether the various files disclosed a conduct
which appeared punishable. At the end of December 1983 the
applicant appointed a lawyer. As from 27 April 1984 onwards the
applicant was permitted to consult part of the case-file.
On 21 March 1986 the Uri Public Prosecutor's Office
(Staatsan-waltschaft) indicted the applicant and other persons of
various economic offences. On 17 June 1986 the Uri Regional Court
(Landgericht) held a preparatory meeting at which it decided on
the applicant's requests for the taking of evidence.
On 17 November 1986 the trial began before the Uri Regional
Court. Various hearings were held, inter alia on 20 January 1987.
On 12 March 1987 the Court pronounced its judgment in which it
convicted the applicant inter alia of fraud, false declaration of
companies, disloyal management, negligent bankruptcy, the failure
to keep accounts and the forgery of documents. The applicant was
sentenced to a prison sentence of five years and 10 months and to
a fine of 4,000 SFr. A period of detention on remand of six days
was deducted from the sentence.
In its judgment the Court listed the charges raised by the
Public Prosecutor's Office, the requests of the defence, and the
final statements of the accused. The Court dismissed the
applicant's request to have incriminating witnesses examined, as
he had failed to specify the nature and relevance of the
questions; and as he had already had sufficient opportunity to
examine the case-file and to submit such requests during the
investigations.
The applicant filed an appeal (Berufung) against this
judgment with the Court of Appeal (Obergericht) of the Canton of
Uri. In its judgment dated 31 May, 15 and 29 June 1988 the Court
upheld the conviction, while sentencing the applicant to six years
and 10 months' imprisonment and to a fine of 6,000 SFr. The Court
dismissed inter alia the applicant's request to have altogether 24
witnesses examined and to have further evidence taken as the facts
had been sufficiently established. The Court was composed of
judge A., the President, judge I., the Vice-president, judge M.,
and other judges.
The applicant filed a plea of nullity
(Nichtigkeitsbeschwerde) and a public law appeal (staatsrechtliche
Beschwerde) on which the Federal Court (Bundesgericht) pronounced
itself in two decisions dated 29 March 1990 and served on the
applicant on 19 May 1990.
In its decision on the public law appeal the Federal Court
first dealt with the applicant's complaints about the proceedings
before the Regional Court and Court of Appeal. Insofar as he
complained that he had not been informed of his right to have a
lawyer, and indeed had not been granted an officially appointed
lawyer, the Court found inter alia that the applicant had
previously had many contacts with lawyers and should have known
that it was possible also in criminal proceedings to consult a
lawyer. To the extent that the judgment of the Court of Appeal
had dealt with these complaints summarily, the Court found that it
sufficed if it now itself gave sufficient reasons.
Insofar as the applicant complained that he had only been
able to consult part of the case-file and this only on 27 April
1984, the Court found that it sufficed if the applicant could
consult the entire case-file once the investigations had been
terminated; the applicant had not claimed that after termination
of the investigations on 25 April 1984 he was refused
consultation.
The Court then dealt with the applicant's complaint that in
the proceedings the R. AG, a consultancy firm, was employed as
expert although the firm also acted as administrator (Sachwalter)
in the bankruptcy proceedings of several of the applicant's
companies; thus it would have biased views on the matter. The
Court found that the firm had not acted as an expert who assisted
the judge in preparing his judgment in matters in which the judge
had insufficient specialised knowledge. Rather, the firm had only
been invited to submit additional facts and indications which,
rather than assisting the judge, had first to be assessed by the
investigating authorities.
Next, the Court dealt with the applicant's complaint that
judge A., the President of the Court of Appeal, was biased as he
had advised the applicant as a lawyer and had acted as his notary
between 1972 and 1976; and that he had presided over the Uri
municipal water corporation which in 1976, as a neighbour, had
introduced a property action against the applicant. The Court
noted that judge A.'s activities as a lawyer and notary had
occurred long ago; that the applicant had admitted the claim
introduced against him; and that the applicant had not shown any
concrete grounds for doubting the judge's impartiality.
Insofar as the applicant complained that judge I., the vice-
president of the Court of Appeal, had been biased as in 1975 he
had written a critical letter to a newspaper editor about the
water situation in the Canton of Uri, the Court noted that the
applicant had as a result instituted defamation proceedings
against the judge, though he had later withdrawn his action;
moreover, the applicant had not shown in what respect judge I.'s
letter to the newspaper now called in question his impartiality.
Insofar as the applicant complained that judge K. had slept
during the trial before the Regional Court, the Federal Court
referred to a newspaper article according to which it had not been
clear at the trial "whether the closed eyes of a judge implied
that he was thinking particularly intensively, or having a short
dream about credits coincidentally spouting millions of Francs"
("ob die geschlossenen Augen eines Richters von besonders
intensivem Nachdenken oder von einem kurzen Traum über zufällig
sprudelnde Millionenkredite zeugen"). The Court found that the
mere fact that the judge closed his eyes for a few moments did not
imply that he slept.
The applicant's complaint that the composition of judges of
the Uri Regional Court constantly changed was declared
inadmissible by the Federal Court as the applicant had not
complied with the requirement of the exhaustion of cantonal
remedies.
Insofar as the applicant complained about the insufficient
assessment of evidence and that he had not been able to put
questions to witnesses, the Court found that the applicant had not
contested that, as required by the Constitution, he been granted
this opportunity at least once during the hearing. Moreover, the
Court noted that the Court of Appeal had regarded the applicant's
requests for the taking of evidence as irrelevant to the
established facts.
The Federal Court then dealt extensively with the grounds
leading to the applicant's conviction and in respect of most
complaints dismissed the public law appeal.
It upheld the public law appeal in respect of two complaints.
First, insofar as the applicant complained that he had been
convicted in respect of the forgery of documents, the Court found
that no such charge had been raised in the bill of indictment.
Second, in respect of another set of facts the applicant
complained that he had been acquitted by the Uri Regional Court of
the offence of obtaining a false registration, and at the trial
before the Uri Regional Court the Public Prosecutor had not
requested the applicant's conviction in this respect; the Court of
Appeal had nevertheless convicted him thereof.
In respect of these two complaints the Federal Court quashed
the judgment of the Uri Regional Court of 31 May, 15 and 29 June
1988 and referred the case back for renewed decision. The Court
further found that the applicant should be reimbursed for costs to
a reduced extent, as only two of many complaints had been
successful. The Court found that it was justified to compensate
this amount with other court costs to be imposed on the applicant
and, therefore, neither reimbursed the applicant for his costs,
nor imposed court costs on him.
Also on 29 March 1990 the Federal Court struck the
applicant's plea of nullity off its list as being without object
(gegenstandslos).
Proceedings leading to the Federal Court's decisions of 3 July
1991
Proceedings were resumed before the Uri Court of Appeal. The
applicant requested the taking of further evidence and the
questioning of those witnesses the examination of which he had
already requested in the first set of proceedings.
In its judgment dated 10 and 11 October 1990 the Court of
Appeal largely confirmed its previous judgment of 31 May, 15 and
29 June 1988. However, it terminated the proceedings in respect
of the charge of giving false information on commercial companies
on account of prescription (Verjährung) and acquitted the
applicant of two charges of obtaining a false registration and of
one charge of forgery of documents. He was sentenced to
imprisonment of five years and six months and a fine of 4,000 SFr.
The Court found that the Federal Court had already dealt with many
of the applicant's complaints about the unfairness of the
proceedings. The Court of Appeal admitted some documents
submitted as evidence, but regarded as irrelevant further
witnesses whom the applicant wished to be examined. The Court was
composed by judge A., the President, judge I., the Vice-president,
judge M. and other judges.
The applicant filed a public law appeal and a plea of
nullity, which were partly upheld by the Federal Court on 3 July
1991.
The Court dismissed the applicant's complaints about the
composition of the Uri Regional Court in the first set of
proceedings. It noted that two substitute judges who had not been
present at all the trial hearings had not participated in the
preparation of the judgment. Two other judges involved in the
preparation of the judgment had not been present on 17 June 1986,
though at that session only preliminary questions had been
discussed and a request filed by the applicant had indeed been
upheld. At the hearing of 12 March 1987, with one judge missing,
the judgment had been pronounced. Finally, insofar as a further
judge had not participated at the Regional Court's session of 20
January 1987, the Federal Court declared this complaint
inadmissible as being lodged out of time.
The Federal Court upheld the public law appeal to the extent
that the Court of Appeal in its judgment of 10 and 11 October 1990
had terminated the proceedings or acquitted the applicant in
respect of certain charges; it had nevertheless not reimbursed the
applicant's costs arising out of the second set of proceedings,
although the latter had become necessary after the Federal Court
partly quashed the Court of Appeal's judgment of 31 May, 15 and 29
June 1988.
In its other decision of 3 July 1991 the Federal Court upheld
the applicant's plea of nullity to the extent that the judgment of
the Court of Appeal contained insufficient motivation as to his
conviction in respect of charges of forgery and false
registration.
Proceedings leading to the Federal Court's decisions of 16
December 1991
In the proceedings resumed before the Uri Court of Appeal the
applicant challenged judge M. The applicant complained in
particular that judge M. had participated in the previous
proceedings before the Court of Appeal where that Court had
dismissed the applicant's request to have certain witnesses heard;
the Court had explained that the statements of these witnesses
could not change its opinion as to the applicant's guilt.
In its judgment of 19 September 1991 the Court of Appeal
mainly confirmed its previous judgments; it found the applicant
guilty of certain charges and acquitted him of others. The
applicant was sentenced to imprisonment of three years and six
months and to a fine of 4,000 SFr. The Court further decided that
the applicant had to pay three quarters of the court costs imposed
by the Regional Court, i.e. 65,741 SFr, and the court costs for
the first set of the proceedings before the Court of Appeal
amounting to 4,570 SFr. The Court of Appeal further dismissed the
applicant's challenge of judge M.; it also dismissed his further
requests for the taking of evidence as they were irrelevant or the
facts were known.
The applicant's public law appeal and plea of nullity against
this decision were dismissed by the Federal Court in two decisions
dated 16 December 1991. It dismissed the applicant's challenge of
judge M. of the Uri Court of Appeal, referring in particular to
that Court's conclusions that in the first set of proceedings M.
had refused to consider certain documents about the execution of
debts (Betreibungs- und Konkursakten) as being irrelevant; that in
the second set of proceedings the Court of Appeal had in fact
considered mitigating grounds; and that the applicant himself
stated that he had no concrete grounds to doubt the impartiality
of judge M.
COMPLAINTS
Proceedings leading to the Federal Court's decisions of 29 March
1990
Under Article 6 para. 1 of the Convention the applicant
complains that the President and Vice-President of the Uri Court
of Appeal had "disregarded the grounds for abstaining from
participation" ("die Ausstandsgründe missachtet"); the expert of
the R. Consultancy Company and their employees had also
disregarded the principles of abstention.
Under Article 6 para. 1 of the Convention the applicant
complains that before the Regional Court the judges constantly
changed. Judges G. and E. who participated in the judgment did
not participate at the trial hearing of 17 June 1986; judge G.
also did not participate at the hearing of 20 January 1987 where
a substitute took part.
The applicant further complains under Article 6 para. 1 of
the Convention that judge K. of the Uri Regional Court slept
during the entire hearing (während der gesamten
Landgerichtsverhandlung).
The applicant also complains under Article 6 para. 1 of the
Convention of the insufficient reasoning given in the judgments of
the Uri Regional Court and Court of Appeal.
Under Article 6 paras. 1 and 2 of the Convention the
applicant complains that the Federal Court quashed the judgment of
the Regional Court of 31 May, 15 and 25 June 1988, yet he received
no compensation for court costs.
Under Article 6 paras. 1 and 3 (b) the applicant complains
that he and his lawyer could only consult part of the case-file,
and this only on 27 April 1984, i.e. three years after the
investigations commenced.
Under Article 6 paras. 1 and 3 (c) the applicant complains
that he should have been given an officially appointed lawyer, yet
he was not even informed of the possibility to have a lawyer.
While the criminal investigations commenced on 18 May 1981, the
accused himself obtained a lawyer only in December 1983.
Under Article 6 paras. 1 and 3 (d) of the Convention the
applicant complains that he could not question incriminating
witnesses or have exonerating witnesses questioned. He was not
informed in advance of the questioning of witnesses. There was no
possibility to put supplementary questions. The applicant could
not put forward evidence and have evidence taken.
Proceedings leading to the Federal Court's decisions of 3 July
1991
The applicant reiterates his complaints previously made under
Article 6 of the Convention. He also complains under Article 6
para. 1 of the Convention that the Federal Court dismissed his
public law appeal insofar as it concerned the composition of the
Uri Regional Court.
Under Article 6 paras. 1 and 2 of the Convention the
applicant complains that, although the Federal Court again partly
upheld his public law appeal, he was not granted compensation.
Proceedings leading to the Federal Court's decisions of 16
December 1991
The applicant reiterates the complaints previously raised
under Article 6 para. 1 of the Convention. He also complains
under Article 6 para. 1 of the Convention that "in respect of
Court of Appeal judge M. the ground of abstention from the
proceedings was not considered" ("indem bezüglich Oberrichter M.
der gegebene Ausstandsgrund missachtet wurde").
Under Article 6 paras. 1 and 2 of the Convention the
applicant complains that he was awarded compensation for the court
costs amounting to 5,000 SFr, although he had spent 70 hours
preparing the second set, and 35 hours for the third set, of the
proceedings.
THE LAW
1. The applicant raises various complaints under Article 6
(Art. 6) of the Convention and its various subparagraphs. Article
6
(Art. 6), insofar as relevant, reads as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing ... by
an independent and impartial tribunal established by law."
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights: ...
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him".
The guarantees contained in para. 3 of Article 6 (Art. 6-3)
are specific aspects of the general concept of a fair trial set
forth in para. 1 (Art. 6-1) of the same Article, and the
Commission will examine the applicant's complaints under the
general rule of para. 1 (Art. 6-1) (see Eur. Court H.R., Bönisch
judgment of 6 May 1985, Series A no. 92, p. 14 et seq., para. 29;
No. 12391/86, Dec. 13.4.89, D.R. 60, p. 182).
Furthermore, the question whether a trial is in conformity
with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention must be considered on the basis of an examination of
the proceedings as a whole (see No. 11058/84, Dec. 13.5.86, D.R.
47, p. 230). The Commission has accordingly looked at the
applicant's trial as a whole.
2. a) The applicant submits that before the Uri Regional Court
the judges constantly changed. However, the Commission notes the
Federal Court's decision of 3 July 1991, not contradicted by the
applicant, that two judges who had not been present at all
hearings before the Regional Court were substitute judges not
participating in the preparation of the judgment; that a further
hearing where two judges had not participated only concerned
preliminary issues; and that the final hearing, where one judge
had not been present, only concerned the pronouncement of
judgment. In respect of a further hearing where one judge had
been absent the Federal Court declared the applicant's complaint
inadmissible as being out of time.
The applicant complains that judge K. slept during the entire
trial before the Regional Court. The Commission notes the Federal
Court's decision of 29 March 1990, referring to a newspaper
article on the trial, according to which the mere fact that the
judge closed his eyes for a few moments during the trial did not
show that he slept.
The applicant complains that the consultancy firm R. AG which
acted as administrator in the bankruptcy proceedings of various of
the applicant's companies gave an expert opinion before the
Regional Court. However, the Commission notes the distinction
made by the Federal Court in its decision of 29 March 1990
according to which this company was only called upon to submit
additional facts which had first to be assessed by the
investigating authorities.
The applicant complains of the bias of judge A., the
President, and of judge I., the Vice-President of the Uri Court of
Appeal. The Commission notes that A. acted as his lawyer and
notary and also presided over a water corporation which introduced
a property action against the applicant; I. had written a letter
to a newspaper about the water situation in Uri. However, the
Federal Court found in its decision of 29 March 1990 that A.'s
activities as a lawyer and notary had occurred long ago, that the
applicant had admitted the claim, and that he had not
substantiated his complaint in respect of I.'s letter to a
newspaper. In the view thereof and lacking further submissions on
the applicant's part the Commission finds no indication to call in
question the impartiality of judges A. and I.
The applicant complains that judge M. was biased in the third
set of the proceedings as he had already participated in the first
and second sets. The Commission notes the Federal Court's decision
of 22 November 1991 that while judge M. and other judges had in
the first set of proceedings regarded certain documents as being
irrelevant as evidence, in the second set the Court of Appeal even
accepted mitigating grounds in respect of the applicant's
punishment; and that the applicant mentioned no other grounds
calling in question the impartiality of judge M. In the
Commission's opinion the applicant has not sufficiently
established doubts warranting the conclusion that M. had a
preconceived opinion as to his guilt.
b) The applicant complains of the insufficient reasoning in the
judgments of the Uri Regional Court and of the Uri Court of
Appeal. However, even assuming that an issue could arise under
Article 6
(Art. 6) of the Convention, the applicant has not substantiated
this complaint. In its decision of 29 March 1990 the Federal
Court gave its own substantial reasons in respect of the
applicant's complaints, and the applicant does not claim before
the Commission that these reasons were insufficient.
c) The applicant complains that he could only consult part of
the case-file, and only three years after the investigations
commenced. However, he has not shown in what respect the refusal
to consult the case-file at the early stage of the investigations
hindered his right to an effective defence. The Commission is
furthermore satisfied that, as pointed out by the Federal Court in
its decision of 29 March 1990, once the final report of the Uri
Investigation Office was prepared the applicant had the right to
consult the full case-file.
d) The applicant complains that he was not given an officially
appointed lawyer; that he was not even informed of the possibility
to have a lawyer; and that he only obtained a lawyer in December
1983. However, the Commission notes that during the
investigations the applicant was remanded in custody for only six
days. Thus, he was at any time free to consult a lawyer of his
own choosing, or to file a request to obtain an officially
appointed lawyer.
e) The applicant complains that he could not question
incriminating witnesses or have exonerating witnesses questioned;
that neither he nor his lawyer were informed of the questioning of
witnesses; and that he could not put forward evidence or have
evidence taken.
As a rule it is for the national courts to assess the
evidence before them. The Convention organs' task is to ascertain
whether the proceedings considered as a whole, including the way
in which evidence was taken, were fair (see Eur. Court H.R., Asch
judgment of 26 April 1991, Series A no. 203, p. 10, para. 26). In
the present case the applicant has not shown that the domestic
courts arbitrarily decided that certain evidence was irrelevant to
the facts, and he has not mentioned any hearings of witnesses to
which he was not invited. The Commission further notes the Federal
Court's decision of 29 March 1990, not contradicted by the
applicant, that he had the right at least once during the
proceedings to put questions to witnesses.
f) The applicant complains that the Federal Court in its
decision of 29 March 1990 quashed the judgment of the Regional
Court of 31 May, 15 and 25 June 1988, yet he received no
compensation for court costs. He also received no compensation
when on 3 July 1991 the Federal Court again partly upheld his
public law appeal. On 22 November 1991 the Federal Court only
awarded 5000 SFr as compensation, although he spent 105 hours
preparing the second and third set of the proceedings. However,
Article 6 (Art. 6) of the Convention does not as such guarantee a
right to reimbursement of court costs, and the applicant has not
alleged any other breach of this provision, for instance that the
calculation of court costs rendered the proceedings unfair,
restricted his access to court or contained an appraisal of his
guilt.
3. The Commission finds that none of the above complaints
disclose any appearance of a violation of the rights set out in
Article 6 (Art. 6) of the Convention. It follows that the
application 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 APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy