AS TO THE ADMISSIBILITY OF
Application No. 16697/90
by U.P.
against Switzerland
The European Commission of Human Rights sitting in private on 30
November 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Mr. M. de SALVIA, Deputy 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 26 May 1990 by
U.P. against Switzerland and registered on 11 June 1990 under file No.
16697/90;
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, an Austrian national born in 1934, is a
businessman residing in Vienna. Before the Commission he is
represented by Mr. Ludwig Minelli, a lawyer practising in Forch
(Switzerland).
A. Particular circumstances of the case
The background of the application is the sinking of a ship, the
"Lucona", off the Maldives in the Indian Ocean on 23 January 1977,
causing the death of six sailors. The freight which went down with the
ship allegedly consisted of an uranium recycling plant, which the
applicant had insured in the amount of 31,000,000 Swiss francs on
behalf of the ZAG, a company incorporated under Swiss law.
Doubts arose as to the circumstances of the accident and the
nature of the freight. Criminal proceedings were instituted against
the applicant.
In 1985 and 1986 Mr. U., editor of the "Schweizerische
Handels-Zeitung", a newspaper published in Switzerland, wrote three
articles on the connection between Swiss businessmen and the "Lucona"
affair. In an article dated 5 June 1986 and headed "Lucona Insurance
Scandal: Proksch's Swiss Friends. Insurance fraud drifts towards
murder charge" ("Lucona-Versicherungsskandal: Prokschs Schweizer
Freunde - Versicherungbetrug steuert auf Mordanklage zu"), Mr. U. wrote
the following:
[Translation]
"The mills of justice grind slowly. In particular if
mutual assistance in criminal matters is concerned. But
confectioner U.P. will probably not get the sweet millions
he wanted to grab from the Bundesländer-Versicherung in
Vienna and the Helvetia Feuer in St. Gallen in one of the
biggest insurance coups in Europe. The sinking of the
"Lucona" in the far away Indian Ocean with its presumed,
highly insured cargo, a "well-packed" uranium recycling
plant, has not only woken up insurance firms and courts in
Austria. Not only in Austria investigators are closing in
on U.P.; also in Switzerland evidence is getting
increasingly weighty because now also his friends in ...
find themselves in the dock.
Statements of "production" and eyewitnesses of the sinking
of the ship lead to the conclusion that what concerns the
courts is no longer just a simple insurance fraud, but an
increasingly strong suspicion of murder. After all six
people died in the sinking of the ship and not without a
reason."
[Original]
"Die Mühlen der Justiz mahlen langsam. Vor allem, wenn es
sich um internationale Rechtshilfe handelt. Aber aus den
Zuckermillionen, die sich der Zuckerbäcker U.P. mit einem
der grössten Versicherungscoups in Europa bei der
Bundesländer-Versicherung in Wien und bei der Helvetia
Feuer in St. Gallen unter den Nagel reissen wollte, wird
wohl nichts. Der Untergang der 'Lucona' im fernen
Indischen Ozean mit der vermeintlichen, hochversicherten
Fracht, einer 'wohlverpackten' Uranmühle, hat nicht nur
Versicherungen und Gerichte in Oesterreich wachgerüttelt.
Um U.P. ziehen sich die Fäden nicht nur in Oesterreich
enger, sondern auch die Beweise in der Schweiz werden immer
drückender, denn nun stehen auch seine Freunde in ... vor
den Gerichtsschranken ...
Aus den Aeusserungen der 'Produktions'- und Augenzeugen des
Untergangs lässt sich unschwer der Schluss ziehen, dass es
vor den Gerichte(n) schon lange nicht mehr einfach um einen
handfesten Versicherungsbetrug geht, sondern weit mehr um
einen sich immer deutlicher abzeichnenden Verdacht auf
Mord, denn schliesslich kamen beim Schiffsuntergang sechs
Personen nicht grundlos ums Leben."
With reference to these statements the applicant on
4 September 1986 brought a private prosecution against Mr. U. for
defamation by the press (Ehrverletzung durch die Presse) at the Zurich
District Court (Bezirksgericht). On 1 June 1988 he filed the
definitive version of his prosecution with the court.
On 16 February 1989 the District Court acquitted Mr. U. of the
offence of defamation. Upon appeal, the Zurich Court of Appeal
(Obergericht) on 31 October 1989, confirming the District Court's
judgment, also acquitted Mr. U.
In respect of the defamation charge under Article 173 of the
Penal Code, the Court allowed Mr. U. to produce exonerating evidence
as provided for in Article 173 para. 2 of the Penal Code. The Court
did not examine whether the accused had successfully proven that his
accusations against the applicant were actually true ("proof of
truth"). It examined however whether the accused had succeeded in
producing the "proof of good faith" concerning the suspicion that the
applicant had committed insurance fraud which also involved the
suspicion of murder. The Court then concluded that on the basis of
evidence produced by him the accused had succeeded in producing this
proof and consequently acquitted him.
In the course of the deliberation of the judges (which in the
Canton of Zurich is public) following the court hearing, one of the
judges stated as follows:
[Translation]
"I am convinced that it was insurance fraud. As this is
inconceivable without the blowing up of the ship 'Lucona',
the ship must have been blown up."
[Original]
"Ich bin davon überzeugt, dass ein Versicherungsbetrug
vorliegt. Weil dieser ohne Sprengung des Schiffes 'Lucona'
nicht denkbar ist, muss das Schiff gesprengt worden sein."
The applicant lodged two pleas of nullity
(Nichtigkeitsbeschwerden) with the Zurich Court of Cassation
(Kassationsgericht) and the Federal Court (Bundesgericht) respectively.
On 22 March 1990 the Zurich Court of Cassation dismissed the
applicant's plea of nullity. The Court held inter alia that the
statement of the judge during the public deliberations did not appear
in the judgment itself and statements during deliberations could not
be considered to be of such relevance as to amount to a violation of
the presumption of innocence. The Court further held that there were
no indications that the judge who made the statement was biased.
Against the judgment of the Zurich Court of Cassation the
applicant introduced a public law appeal (staatsrechtliche Beschwerde).
Meanwhile the Federal Court on 23 April 1990 partly upheld the
applicant's plea of nullity. The Court found that the Court of Appeal
had acted correctly in allowing Mr. U. to adduce exonerating evidence.
It then examined the criteria to be applied to the proof of good faith
in the present case and emphasised that the media, in reporting
criminal proceedings, also had to respect the presumption of innocence
as laid down in Article 6 para. 2 of the Convention. The Court found
that Mr. U. had not made sufficiently clear that he was expressing a
suspicion of insurance fraud; rather he had presented the events as
facts. As Mr. U. had expressed more than a suspicion, the Court of
Appeal had breached Federal law in that it found that the accused had
succeeded in establishing the "proof of good faith". In respect of the
suspicion of murder as expressed by Mr. U. in his article, the Federal
Court found that the Court of Appeal correctly assumed the "proof of
good faith" as produced because the accused had expressed no more than
a suspicion.
On 10 May 1990 the Federal Court decided not to admit the
applicant's public law appeal as it had already dealt in substance with
the complaint in its decision of 23 April 1990.
Proceedings were then resumed before the Zurich Court of Appeal.
On 31 May 1990 the Court made an order for the taking of evidence
(Beweisbeschluss) wherein it considered that the Federal Court's
judgment only concerned the "proof of good faith" produced by the
accused but did not exclude the possibility of adducing the "proof of
truth". In the absence of a conviction of the accused such a proof of
truth could successfully be produced by demonstrating that the
applicant's conviction could be expected with "practical certainty"
(praktisch sicher). The Court of Appeal therefore had to allow the
accused to deliver such evidence. Whether or not such
"practical certainty" could be established in the present case was a
matter to be decided later in the proceedings.
On 31 May 1990 the applicant introduced a public law appeal with
the Federal Court against the Court of Appeal's order for evidence to
be taken, invoking Article 6 para. 2 of the Convention.
On 1 June 1990 the Federal Court advised the applicant to
withdraw his public law appeal as the criminal proceedings instituted
by him against Mr. U. would be time-barred on 5 June 1990 so that the
Federal Court could no longer deal with the matter.
The applicant withdrew his public law appeal, which was struck
off the Federal Court's list on 8 June 1990.
B. Relevant domestic law
Section 173 paras. 1 to 3 of the Swiss Penal Code read as
follows:
[Translation]
"(1) Whoever accuses or suspects before a third person
another person of dishonourable conduct or of other
facts likely to damage the accused or suspected
person's reputation,
whoever spreads such an accusation or suspicion,
shall be punished, upon complaint [of the
injured party], by imprisonment of up to six
months or by a fine.
(2) If the accused proves that the statement made or
spread by him is true or that he had serious
reasons for considering it in good faith to be
true, he shall not be punished.
(3) The accused shall not be allowed to produce
evidence and shall be punishable for such
statements if they were made or spread without
any motive of safeguarding the public interest
or otherwise without justification, but mainly
with the intention of slander, in particular if
the statement concerns the other person's
private or family life."
...
[German]
"(1) Wer jemanden bei einem andern eines
unehrenhaften Verhaltens oder anderer Tatsachen,
die geeignet sind, seinen Ruf zu schädigen,
beschuldigt oder verdächtigt,
wer eine solche Beschuldigung oder Verdächtigung
weiterverbreitet,
wird, auf Antrag, mit Gefängnis bis zu sechs
Monaten oder mit Busse bestraft.
(2) Beweist der Beschuldigte, dass die von ihm
vorgebrachte oder weiterverbreitete Äusserung
der Wahrheit entspricht, oder dass er ernsthafte
Gründe hatte, sie in guten Treuen für wahr zu
halten, so ist er nicht strafbar.
(3) Der Beschuldigte wird zum Beweis nicht
zugelassen und ist strafbar für Äusserungen, die
ohne Wahrung öffentlicher Interessen oder
sonstwie ohne begründete Veranlassung,
vorwiegend in der Absicht vorgebracht oder
verbreitet werden, jemandem Übles vorzuwerfen,
insbesondere, wenn sich die Äusserungen auf das
Privat- oder Familienleben beziehen."
Under Article 178 of the Penal Code, prosecution for these
offences is subject to a two-year limitation period. However, the
running of the period is interrupted and commences afresh whenever a
measure of investigation is taken. For offences involving an attack
on a person's honour there is an "absolute" limitation after four
years, that is twice the normal limitation period (Article 72 para. 2
of the Criminal Code).
In Switzerland, such offences are only prosecuted upon a
complaint (Strafantrag) by the injured party. In the Canton of Zurich,
as in several other Cantons, the proceedings are known as
"Privatstrafklageverfahren" (Article 287 of the Zurich Code of Criminal
Procedure): it is for the injured party, not the State authorities,
to take the initiative. The public prosecutor does not take part in
the proceedings.
COMPLAINTS
1. The applicant complains that he did not have a fair trial as
required by Article 6 para. 1 of the Convention in that the Zurich
Court of Appeal did not sufficiently deal with the applicant's
arguments. The applicant had presented statements made by the
surviving members of the crew of the ship "Lucona" which would indicate
that the cause for the sinking of the ship had not been an explosion,
thus casting doubt on the suspicion that the applicant had committed
insurance fraud.
2. The applicant further complains that a judge of the Zurich Court
of Appeal during the public deliberations on the applicant's appeal on
31 October 1989 had made a statement which was incompatible with the
presumption of innocence as enshrined in Article 6 para. 2 of the
Convention. The applicant also complains that the decision of the
Zurich Court of Appeal of 31 May 1990 to allow the accused to adduce
evidence was incompatible with the presumption of innocence.
3. Under Article 13 of the Convention the applicant complains that
the Federal Court refused to deal with his public law appeal after the
criminal proceedings instituted by the applicant had become
time-barred.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Zurich Court of Appeal in the proceedings which led
to the acquittal of Mr. U. on 16 February 1989 did not sufficiently
deal with the applicant's arguments.
Article 6 para. 1 (Art. 6-1) of the Convention reads in its
relevant part as follows:
"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."
The Commission observes that in its judgment the Federal Court
found that, in the absence of any judgment convicting the applicant and
in view of the length of the incriminated article, the accused should
also have referred to arguments against the suspicion of insurance
fraud. The Court further found that, as the accused had not done so,
he had presented his accusation against the applicant as a statement
of fact rather than the expression of a suspicion. Therefore the
Federal Court concluded that the Court of Appeal had wrongly assumed
that the accused had expressed only a suspicion of insurance fraud vis-
à-vis the applicant.
The Commission notes that the Federal Court quashed the judgment
of the Zurich Court of Appeal precisely for the reason that the
arguments put forward by the applicant against the suspicion of an
insurance fraud had not been sufficiently dealt with by the Cantonal
Courts.
This part of the application must therefore be declared
manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains under Article 6 para. 2
(Art. 6-2) of the Convention that during the public deliberations of
the Zurich Court of Appeal on the applicant's appeal, a judge had made
a statement incompatible with the presumption of innocence. Article
6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission recalls that despite the wording of Article 6
para. 2 (Art. 6-2), which secures the presumption of innocence to
"everyone charged with a criminal offence" ("toute personne accusée
d'une infraction"), this provision has been consistently interpreted
as also applying to situations where the person concerned is not or no
longer formally charged with a criminal offence (cf. Eur. Court H.R.,
Adolf judgment of 26 March 1982, Series A. No. 49, p. 18, para. 39;
Minelli judgment of 25 March 1983, Series A No. 62, p. 17 et seq.,
para. 34 et seq.; and Lutz, Englert and Nölkenbockhoff judgments of
25 August 1987, Series A No. 123, p. 24, para. 58; p. 55, para. 39; p.
80, para. 39).
Furthermore the presumption of innocence is to be observed not only by
the criminal court trying a case, but also by other authorities (cf.
No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73; No. 9077/80, Dec. 6.10.81,
D.R. 26 p. 211; and No. 10847/84, Dec. 7.10.85, D.R. 44 p. 238)
including courts other than those which are competent to determine a
criminal charge (cf. No. 9295/81, Dec. 6.10.82, D.R. 30 p. 227).
In the present case the Commission notes that the statement of
the judge had been made in the course of deliberations on an appeal
lodged by the applicant against the judgment of the Zurich Criminal
Court. The statement expressed the judge's conviction that the
applicant had committed insurance fraud. The Court of Appeal's
judgment following these deliberations was however quashed by the
Federal Court in so far as it concerned the accusations against the
applicant of having committed insurance fraud. In this respect the
applicant cannot therefore be regarded as a victim within the meaning
of Article 25 (Art. 25) of the Convention of an alleged violation of
Article 6 para. 2 (Art. 25) of the Convention.
The applicant also complains under Article 6 para. 2
(Art. 6-2) of the Convention that the decision of the Zurich Court of
Appeal of 31 May 1990 to allow the accused to adduce the proof of truth
was contrary to the presumption of innocence.
The Commission notes the Federal Court's decision of
23 April 1990 according to which the Zurich Court of Appeal had acted
correctly in allowing the accused to produce exonerating evidence
within the meaning of Section 173 para. 2 of the Penal Code. The Court
did not take a final stand on the issue whether the accused could, in
the absence of a judgment convicting the applicant, successfully
produce the proof of truth, as the Court of Appeal had not based its
earlier judgment on such evidence.
The Commission further notes that the Court of Appeal in its
decision on the taking of evidence referred to these considerations
of the Federal Court, stating inter alia that, in the absence of a
conviction of the accused, the proof could successfully be produced by
demonstrating that the applicant's conviction could be expected with
"practical certainty" (praktisch sicher). The Court of Appeal found
however that whether or not such "practical certainty" could be
established in the present case was a matter to be decided later in the
proceedings.
The Commission therefore considers that the Court of Appeal's
decision on the taking of evidence did not contain any statement to the
effect that the applicant was found guilty of having committed an
offence without having been duly convicted.
This part of the application is therefore also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Under Article 13 (Art. 13) of the Convention the applicant
complains that the Federal Court had refused to deal with his public
law appeal after the criminal proceedings instituted by the applicant
had become time-barred.
Article 13 (Art. 13) of the Convention states:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
Even assuming that the applicant had an arguable claim within the
meaning of Article 13 (Art. 13), the Commission notes that he did in
fact have an effective remedy against the alleged violation of his
rights under Article 6 para. 2 (Art. 6-2) of the Convention, namely the
possibility to file a private prosecution for defamation. The fact
that this remedy eventually failed does not indicate any lack of
effectiveness. The Commission further notes that, in the present case,
the obstacle to the applicant's pursuing the remedy was brought about
by the statute of limitation. However, the applicant himself, after
filing a provisional private prosecution, waited for one year and nine
months before he presented the definite brief. He must therefore
assume the main responsibility for any delay in the examination of his
case.
This part of the application is therefore also manifestly
ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy