AS TO THE ADMISSIBILITY OF
Application No. 17602/91
by Martin THOMANN
against Switzerland
The European Commission of Human Rights sitting in private on
5 September 1994, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 December 1990
by Martin THOMANN against Switzerland and registered on 7 January 1991
under file No. 17602/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 7 January 1994 and the observations in reply submitted
by the applicant on 8 March 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, born in 1949, is a Swiss national and resident in
Zurich. He is a businessman by profession. Before the Commission he
is represented by Mr. P. Joset and Mr. N. Ruckstuhl, lawyers practising
in Binningen.
A. Particular circumstances of the case
On 13 December 1988 the Basel-Stadt Public Prosecutor's Office
(Staatsanwaltschaft) preferred an indictment (Anklageerhebung) against
the applicant on charges of professional fraud, simple bankruptcy
(leichtsinniger Konkurs), and violation of his obligation to keep books
(Unterlassung der Buchführung).
The Basel-Stadt Criminal Court (Strafdreiergericht) fixed the
period between 10 and 17 May 1989 as the date for the trial against the
applicant. The applicant could not be summoned for the trial on the
ground that he had given notice of departure from his last place of
residence without indicating his new place of residence. A warrant of
arrest was issued, which referred to the possibility that the trial
could, at any time, be conducted in the applicant's absence
(Kontumazialverhandlung).
Between 10 and 17 May 1989 the Criminal Court, sitting with the
Judges Metzener, Becht-Gutmann and Memminger, conducted the trial in
the applicant's absence.
On 16 May 1989 the applicant was arrested. He was brought before
the Criminal Court on 17 May 1989 for the pronouncement of the
judgment.
On 17 May 1989 the Criminal Court convicted the applicant of
fraud, simple bankruptcy and violation of his obligation to keep books,
and sentenced him to two and a half years' imprisonment.
Thereupon, the applicant requested a rehearing of his case
(Revision) under S. 267 para. 2 of the Basel-Stadt Code of Criminal
Procedure (Strafprozessordnung), which was granted immediately by the
three Judges mentioned above.
Subsequently, in normal trial proceedings, the Criminal Court
fixed 30 October 1989 as the date for the new trial, to be conducted
by the Judges Metzener, Becht-Gutmann and Memminger.
On 29 June 1989 the applicant challenged the Judges Metzener,
Becht-Gutmann and Memminger for bias, referring to their participation
in the trial proceedings leading to his conviction on 17 May 1989.
On 27 August 1989 the Basel-Stadt Criminal Court, sitting with
the said Judges, dismissed the applicant's motion of challenge.
On 5 October 1989 the Basel-Stadt Court of Appeal (Appellations-
gericht), upon the applicant's appeal (Beschwerde), quashed the
decision of 27 August 1989 and ordered the Criminal Court to decide
upon the applicant's motion of 29 June 1989 in the absence of the three
Judges concerned.
The trial fixed for 30 October 1989 was postponed.
On 25 October 1989 the Basel-Stadt Criminal Court, sitting with
the Judges Kunz, Stephenson and Stamm, dismissed the applicant's motion
of challenge.
On 14 November 1989 the Basel-Stadt Court of Appeal dismissed the
applicant's appeal against the decision of 25 October 1989. The Court
of Appeal considered in particular that the request under S. 267
para. 2 of the Basel-Stadt Code of Criminal Procedure was not an
ordinary remedy, but, under given circumstances, resulted in a reversal
of the conviction passed in the accused's absence (Kontumazurteil), the
conduct of a normal trial and passing of a new judgment (S. 267
para. 4). There was no legal rule of competence regarding the decision
on whether the objection was granted and regarding the new trial, but,
according to practice, the court in the composition which had conducted
the trial in the accused's absence was also competent for the
proceedings following a request for rehearing of the case. The Court
of Appeal observed that the new trial was supposed to amend the
proceedings conducted in the accused's absence and that the judges
conducting a trial in the accused's absence were aware of the
provisional nature of their judgment and the possibility of a
repetition of the trial in normal proceedings. As the trial was
completely repeated, its outcome was open. There were no objective
reasons to doubt the impartiality of the judges who had first
participated in the trial in the accused's absence and then again
participated in the trial in his presence.
On 2 May 1990 the Federal Court (Bundesgericht) dismissed the
applicant's public-law appeal (staatsrechtliche Beschwerde).
The Federal Court, referring to its case-law on the question of
impartiality of judges, considered that the participation of judges,
who had passed a conviction in the accused's absence (Kontumazurteil),
in the decision on the request of the person concerned for a rehearing
of his case and the subsequent new trial against him, could not be
challenged if the outcome of the normal trial appeared to be open and
there was no appearance of predetermination.
The Federal Court found that the main difference between a normal
trial and a trial in the accused's absence was that the accused could
not make use of his rights of defence under SS. 181, 185 and 186 of the
Code of Criminal Procedure, and could not be questioned by the court.
Thus, in proceedings conducted in the accused's absence, the basis for
the court's judgment was incomplete so far as those procedural elements
were concerned which presupposed the accused's presence. The accused's
statements at the trial and the personal impression made upon the court
are of great importance for the finding of the truth and the fixing of
the sentence. In order to make up for the disadvantages possibly
suffered by the accused due to his absence, the different Swiss Codes
of Criminal Procedure providing for a conviction in the accused's
absence also entitled the convicted person to request a rehearing of
his case in normal proceedings. The purpose of the request for a
rehearing under S. 267 of the Basel-Stadt Code of Criminal Procedure
was not to review the judgment passed in the accused's absence, but to
restore the case to the stage of the main proceedings in order to be
freshly examined at a new trial in the accused's presence.
The Federal Court considered that, taking into account the
importance of the accused's statements and the impression he makes at
the trial, it appeared quite possible that the judges, when reexamining
the case in normal trial proceedings, could come to a different result
than in the proceedings in the accused's absence. Thus the result of
the normal trial proceedings appeared open although the judges had
already participated in the proceedings in the accused's absence, and
there was objectively no indication of predetermination.
The Federal Court also observed that the present case could not
be compared to the case where a judge initially acts as investigating
judge, as judge deciding on the committal for trial or as judge issuing
a penalty order (Strafmandat), and then subsequently as trial judge.
If, in cases of a conviction in the applicant's absence the further
participation of the judges concerned in the review proceedings and the
possible new trial amounted to a breach of the Constitution and of
Article 6 para. 1 of the Convention, there would be a risk of abuse.
In this respect, the Federal Court noted that, in those Swiss Cantons
where the Code of Criminal Procedure did not subject the request for
a rehearing to any conditions, the accused could avoid judges whom he
disliked by not appearing in court. Moreover, new judges would have
to make themselves acquainted with the files, and thereby the workload
of the courts would be further increased and criminal proceedings be
delayed. The judgment was sent to the applicant on 6 June 1990.
The new trial against the applicant was held before the
Basel-Stadt Criminal Court, sitting with Judges Metzener, Becht-Gutmann
and Memminger, between 26 September and 3 October 1990.
On 3 October 1990 the Basel-Stadt Criminal Court convicted the
applicant again of fraud, simple bankruptcy and breach of his
obligation to keep books and sentenced him to two years and three
months' imprisonment.
B. Relevant domestic law and practice
a. Proceedings in the presence of the accused
In the course of a trial conducted in the presence of the
accused, the President of the court (Gerichtspräsident) questions the
accused about his personal situation. Subsequently, the accused has
the opportunity to make a brief statement on the indictment. The
President then questions him in detail on the charges against him
(S. 178 of the Basel-Stadt Code of Criminal Procedure -
Strafprozessordnung).
The accused can be confronted with witnesses (S. 179).
S. 181 provides that the accused can request the further taking
of evidence.
Under SS. 185 and 186, he is entitled to put forward his defence
following the statements of the Public Prosecutor and, possibly, the
victim of the offence, and he has the last word following the Public
Prosecutor's reply.
b. Proceedings in the absence of the accused
SS. 260 to 267 of the Basel-Stadt Code of Criminal Procedure
regulate the conduct of criminal proceedings against suspect persons
and accused who are absent.
According to S. 260 preliminary investigations against a suspect
who is absent are to be conducted, so far as possible and feasible, as
completely as if he were present; in particular the relevant evidence
is to be taken.
S. 261 para. 1 provides that the indictment may only be preferred
(öffentliche Anklage erheben) against an absentee, who has been heard
on the charges against him or who has himself rendered such hearing
impossible, and if a reliable result of the trial appears secured
despite the accused's absence.
Pursuant to S. 262 para. 1, the President of the criminal court
(Strafgerichtspräsident) orders that the trial be conducted in the
accused's absence (Kontumazialverhandlung), if an indictment has been
preferred against an absentee or if the accused absents himself without
sufficient excuse after having been committed for trial. This order
is included in the publications relating to search and investigation
into the person's whereabouts.
S. 263 para. 1 provides that, if the accused cannot be brought
before the court, the relevant parts of the investigation files are
brought to the court's notice in that they are circulated or read out.
Judgment is passed on the basis of the files after the parties present
have been heard. Under S. 263 para. 2, the President may, ex officio,
or upon request of a party, order the hearing of witnesses or experts.
The court may also order the further taking of evidence.
S. 264 relates to the judgment passed in the accused's absence
(Kontumazurteil). The proceedings are provisionally suspended, if the
evidence does not suffice to convict the accused (S. 264 para. 1). In
case of the accused's conviction, the court decides upon the measures
to be taken upon his apprehension. The judgment should, if possible,
immediately be executed (S. 264 para. 2).
S. 266 concerns the remedies open to the parties present at the
trial.
S. 267 regulates the accused's remedy against his conviction.
Pursuant to S. 267 para. 1 the accused convicted in his absence is
notified of his conviction as soon as he is brought before or
surrenders to the court; the notification is done in the presence of
the Public Prosecutor's Office, if the conviction followed an
indictment (öffentliche Klage). According to S. 267 para. 2, the
convicted person is entitled to request a rehearing of his case
(Revision des Verfahrens) within ten days after notification; the
Public Prosecutor's Office has the same right in case of judgments
following an indictment. The request of a convicted person who was
summoned for the trial may only be granted if he shows that he did not
receive the summons or was, through no fault of his, hindered from
appearing in court (S. 267 para. 3). If the request for rehearing is
granted, normal trial proceedings are instituted against the convicted
person and a new judgment is passed (S. 267 para. 4). In the absence
of a request for rehearing or dismissal of such a request, the judgment
passed in the accused's absence becomes final (S. 267 para. 5).
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 2 of the
Convention that, in the proceedings resulting in his conviction by the
Basel-Stadt Criminal Court of 3 October 1990, he did not have a hearing
by an impartial court.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 December 1990 and registered
on 7 January 1991.
On 13 October 1993 the Commission decided to communicate the
application to the respondent Government for observations on
admissibility and merits.
On 7 January 1994, the Government submitted their observations.
The observations in reply by the applicant were submitted on
8 March 1994.
On 17 May 1994, the Commission decided not to grant legal aid to
the applicant.
THE LAW
The applicant complains under Article 6 paras. 1 and 2
(Art. 6-1, 6-2) of the Convention that, in the proceedings resulting
in his conviction by the Basel-Stadt Criminal Court of 3 October 1990,
he did not have a hearing by an impartial court.
Article 6 paras. 1 and 2 (Art. 6-1, 6-2), as far as relevant,
provides 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."
The respondent Government, referring to the case-law of the
Convention organs, compare the present case with the Ringeisen case in
particular (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series
A no. 13). They submit that the Basel-Stadt Criminal Court, following
the applicant's request for a rehearing of his case, was merely called
upon to conduct the hearing in the presence of the applicant in order
fully to secure him the rights of the defence. The Government maintain
that the criminal court, when passing a conviction in the accused's
absence, has a view of the case different from the view it has when
conviction is passed in his presence. In this respect, they refer to
the record of the applicant's trial before the Basel-Stadt Criminal
Court between 26 September and 3 October 1990. They consider that
there was nothing to indicate that the judges, who had first passed the
applicant's conviction in his absence, had lost their impartiality when
they decided again on the charges against him. Rather, in such cases,
the trial starts again from the very beginning and the accused's
presence at the hearing can show new aspects.
The applicant considers that the outcome of the proceedings upon
the rehearing in the accused's presence should be fully open. However,
judges, who had passed a conviction in the accused's absence, but in
full knowledge of all material, could not be regarded as impartial when
sitting on the rehearing of the same case. He submits that the main
question in the criminal proceedings against him was the legal
qualification of the facts which he had admitted, a question already
determined by the judges at the trial in his absence.
The Commission finds that the applicant's complaint under
Article 6 (Art. 6) of the Convention raises difficult questions of fact
and of law which require an examination of the merits. The application
is therefore not manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention. No other ground for
declaring it inadmissible has been established.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy