I. v. SWITZERLAND

                      AS TO THE ADMISSIBILITY OF

                      Application No. 13972/88

                      by I.

                      against Switzerland

        The European Commission of Human Rights sitting in private

on 31 May 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

                  B. MARXER

             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 May 1988 by

I. against Switzerland and registered on 23 June 1988

under file No. 13972/88;

        Having regard to:

-       the observations submitted by the respondent Government on 20

        April 1990 and the observations in reply submitted by the

        applicant on 25 June 1990;

-       the submissions of the parties at the hearing of 31 May 1991;

        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 Italian citizen born in 1942, is a

travelling salesman currently detained at Lugano prison in

Switzerland.  Before the Commission he is represented by Mr.  F.C.

Fischer, a lawyer practising in Zurich.

A.      Particular circumstances of the case

        On 2 February 1985 the applicant arrived by plane from

Bangkok at Zurich airport.  At the customs control, a certain Giuseppe

(later Giovanni) M. who disembarked from the same plane was found to

have 1.385 kg of heroin in his suitcase.  When the customs officer

asked M. whether he had a colleague, M. pointed to the applicant.  The

latter then explained to the customs officer that he was travelling

with a group.  When a search provided no further results, the

applicant was permitted to leave.  Following further investigations, a

connection was suspected between M. and the applicant, and a search

for him was started.  The applicant was arrested on the same day at

Lugano on a train to Italy.

I.

        Immediately after his arrest the applicant asked a certain

Mrs.  S.C. for help.  The latter then contacted Mrs.  B.G., a lawyer

(Rechtsanwältin).

        On 3 February 1985, a Sunday, the applicant was questioned by

a Zurich District Attorney (Bezirksanwalt).  The applicant spoke in

Italian and an interpreter was present.  The applicant explained inter

alia that he had travelled via Zurich to and from Bangkok as a travel

agent at Barletta in Italy had told him that this was cheaper.  By

coincidence, another person of whom he only knew the first name,

Giuseppe, had also booked the same trip at Barletta.  On the plane he

had never sat next to Giuseppe.  The applicant contested the charge of

having been involved in the importation of drugs into Switzerland.  He

also requested an officially appointed lawyer.

        On 8 February 1985 Mrs.  B.G. sent the applicant a letter in

which she offered to represent him.  He then signed and returned the

enclosed power of attorney.

        On 13 February 1985 a police officer questioned the applicant.

The latter explained that while he did not know Giuseppe's family name,

he, the applicant, had been asked to write the family name C. on the

name tag of Giuseppe's suitcase in the train from Milan to Zurich.

The applicant also explained that at Bangkok airport he noticed that

the name C. did not coincide with that person's name in the passport

which was G.

        The applicant was again heard by a police officer on

15 February 1985.  He stated inter alia that he had sat next to

Guiseppe on the flight to Bangkok.  In Bangkok he had not been

present when Giuseppe had received a suitcase.

        On 18 February 1985 a Bülach District Attorney questioned the

applicant who stated that he hoped to be confronted with Giuseppe.

        On 25 February 1985 Mrs.  B.G. resigned as the applicant's

representative.  On the same day, the applicant's present lawyer was

officially appointed as his representative.

        Subsequently the applicant's present lawyer received the

case-file for consultation.  By letter of 4 March 1985 he returned the

case-file to the District Attorney's Office.

        At an interrogation on 8 March 1985 the applicant told the

District Attorney that in the train from Barletta to Zurich Giuseppe

had asked him to sign the name G. in his new passport.

        In respect of all these interrogations the applicant's

officially appointed lawyer did not ask to be present, nor was he

invited to be present, though he subsequently received transcripts

thereof.

        On 8 March 1985 the District Attorney informed the Zurich

Cantonal Police (Kantonspolizei) of a coming mission of a police

officer to Italy concerning the applicant's case.  The District

Attorney thereby referred to "inquiries which had urgently to be made

in Barletta ...  Italy" ("sind dringend Abklärungen in Barletta ...

Italien zu tätigen") and that the investigations which the police

officer would undertake would require previous consultation (nach

Rücksprache) with the District Attorney.  The applicant's lawyer was

informed of this letter.  The applicant's lawyer then telephoned the

District Attorney's Office that he had no supplementary questions to

be put during the investigations in Italy.

        On 13 March 1985 the District Attorney applied to the Federal

Office for Police Affairs (Bundesamt für Polizeiwesen) to transmit to

the Italian authorities a commission rogatory enabling in particular the

District Attorney, accompanied by two police officers, to question the

staff of certain travel agencies and to obtain documents concerning

the applicant and M.  The applicant's lawyer submits that he was told

about this letter only on 9 April 1985.

        On 2 and 3 April 1985 the District Attorney and two police

officers questioned witnesses at Barletta in Italy, in particular two

travel agents.

        On 9 April 1985 the applicant's lawyer conferred with the

District Attorney.  There are different versions as to the content of

this conversation.  According to the subsequent decision of the Zurich

Court of Appeal (Obergericht) of 17 January 1986 he was informed that

the applicant would again be questioned on 11 April 1985.  According

to the submissions of the applicant's lawyer, he was not informed

thereof; rather, the conversation merely concerned the applicant's

detention on remand.  It is undisputed that the applicant's lawyer was

further told about the investigations in Italy.  The applicant's

lawyer eventually received a copy of the minutes of the investigations

in Italy.

        On 11 April 1985 the applicant was questioned by the District

Attorney and asked to explain certain contradictions in his previous

statements.  The applicant contested certain results of the

investigations in Italy.  A lawyer was not present.

        By letter of 17 April 1985 to the District Attorney, the

applicant's lawyer acknowledged receipt of the minutes of the

interrogations of 11 April 1985, as well as the transcript of the

hearing at Barletta on 2 April.  The lawyer complained that he had not

been invited to either occasion.

        On 6 June 1985 a final interrogation took place at the Bülach

District Attorney's Office.  The applicant's lawyer was present.

        On 10 June 1985 the Bülach District Attorney's Office indicted

the applicant before the Bülach District Court (Bezirksgericht) for the

offence of importing and transporting drugs.  M. was indicted for the

same offence.

        The trial took place on 26 June 1985.  The applicant, M. and

their lawyers were present.  The applicant's lawyer stated, inter

alia, that the results of the investigations in Italy were invalid as

he had not been able to put questions to the witnesses.  It does not

transpire from the minutes of the trial whether the applicant or his

lawyer put questions to M.

        On 26 June 1985 the Bülach District Court convicted the

applicant of contravening the Narcotics Act (Betäubungsmittelgesetz)

and sentenced him to seven years' imprisonment as well as 15 years)

expulsion from Switzerland.  The co-accused Giovanni (previously

Giuseppe) M. was sentenced to six years' imprisonment.  The applicant

and M. were each ordered to pay half of the costs of the proceedings

amounting to 14,543.50 SFr.

        In its judgment the Court noted in particular that the

applicant had contradicted himself during the various interrogations

as to whether he knew the first and the family name of M.; as to where

he had noticed that the family name G. was not the name C.; and as to

the issue whether he had sat next to M. on the plane.  The Court

referred to further contradictions mentioned in the bill of

indictment.  The District Court concluded that for this reason the

applicant's claim that he was innocent could not be taken seriously.

It considered that M., who is illiterate, had himself made so many

contradictions that doubts arose as to his mental capacities and that

it would have been impossible for M. to organise such a transport of

drugs.  The Court noted that M. had told the investigating authorities

upon his last interrogation on 15 May 1985 that it had been the

applicant who had constantly accompanied him and who had told him when

to pick up the suitcase in Bangkok; thus the applicant's function had

been to assist and supervise M.  The Court concluded that the

applicant had knowingly and willingly participated in the transport of

drugs.

II.

        The applicant filed an appeal (Berufung) against this judgment

to the Zurich Court of Appeal (Obergericht).  M. also filed an appeal

but later withdrew it.

        On 23 December 1985 the applicant's lawyer requested, in a

letter to the Court of Appeal, the hearing of two witnesses, D.G. and

G.C., possibly also of M.  The applicant's lawyer explained that D.G.

and G.C. had been present in prison when M. had apologised to the

applicant claiming that he, M., had incriminated the applicant upon

his lawyer's advice, in order to get a more lenient sentence.  The

applicant's lawyer also requested the Court to take to the case-file

the file of another Italian, M.A., who had been arrested, and who was

the lover of M.'s wife and the actual organiser of the drug transport.

        On 8 January 1986 a telephone conversation took place between

the applicant's lawyer and judge P. of the Zurich Court Appeal.

According to the note for the file prepared by the applicant's lawyer

on 30 June 1986, judge P. stated that he did not regard it as

necessary to hear D.G. and G.C.  Moreover, M. had already stated so

much nonsense (Unsinn) that his testimony was completely useless.  The

note continues:

"Dr.  P. continues with the (verbatim) 'very tentative

question' whether I would like to withdraw the appeal.  The

case is quite clear for him and there is in his view not the

slightest chance that anything will be changed with regard

to the first instance judgment."

"Dr.  P. fährt dann mit der (wörtlich) 'ganz schüchternen

Frage' fort, ob ich die Berufung denn nicht zurückziehen

wolle.  Der Fall sei für ihn völlig klar und es bestehe

seiner Ansicht nach nicht die geringste Chance, dass am

erstinstanzlichen Urteil etwas geändert werde."

        The applicant's lawyer replied that he had a different view of

the case.

        The appeal hearing took place on 17 January 1986 before the

Second Criminal Chamber (Strafkammer) of the Zurich Court of Appeal.

The bench of this collegiate court was composed of three judges,

namely the chairman, judge P. and a further judge.  The applicant, his

lawyer and the Public Prosecutor spoke.  The latter referred inter

alia to M.'s incriminating statement.

        After publicly deliberating the Court of Appeal, on 17 January

1986, convicted the applicant of contravening the Narcotics Act and

sentenced him to seven years' imprisonment as well as 15 years'

expulsion from Switzerland.  The Court confirmed the imposition of

costs by the District Court and further ordered the applicant to pay

4786.40 SFr as costs for the appeal proceedings.

        The Court found at the outset that it was unnecessary again to

question M. as his evidence would not alter consideration of the

applicant's case.  Moreover, M. had proved to be so untrustworthy

(derart unglaubwürdig) that his statements would in any event be

unimportant (keine wesentliche Bedeutung).  Insofar as the applicant

complained that his lawyer had not been present when investigations

were undertaken in Italy, the Court found that to the extent that the

witnesses' statemens were relevant, they had been confirmed by the

applicant.

        With regard to the applicant's complaint that his lawyer had

not been present when the applicant was questioned during the

investigations, the Court noted that the lawyer had been informed

about the date of 11 April 1985.  Moreover, at the final interrogation

on 6 June 1985 where he had been present he had not asked any

questions.  The applicant had also not demonstrated any disadvantages

resulting from his lawyer's absence, and no such disadavantages were

apparent.  The applicant had also not shown that the file of the other

Italian, M.A., was relevant for his own case.

        With regard to the issue of guilt, the Court referred in all

parts to the considerations of the District Court.  The Court

considered it extremely unlikely that by pure coincidence two persons

from Barletta in Italy, who did not previously know each other,

travelled together to Zurich, from there to Bangkok, where they stayed

in the same hotel, and back.

III.

        Against this decision the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) which was dismissed by the Zurich Court of

Cassation (Kassationsgericht) on 8 October 1986.

        The Court declared inadmissible the applicant's plea of

nullity with regard to the alleged partiality of judge P. as he should

have filed a challenge in this respect before the appeal hearing.

Insofar as the applicant complained that his lawyer was not present

when he was questioned, the Court noted, with reference to the

case-law of the Federal Court (Bundesgericht; see below relevant

domestic law and practice), that the applicant was not maintaining

that a request had been rejected for unjustified reasons (unsachliche

Gründe).  Moreover, the applicant's lawyer had been present on 6 June

1985 as well as at the appeal hearing.

        The Court further regarded as unfounded the applicant's

complaints that he had not been present when the authorities undertook

investigations in Italy, since the applicant had afterwards accepted

the results of the investigation; the applicant had not shown where

this had not been the case.  Moreover, the statements of the two

witnesses heard in Italy had not been considered for the judgment, and

the applicant had not stated in what respect the Court of Appeal had

nevertheless had had regard therein.

IV.

        The applicant's subsequent public law appeal (staatsrechtliche

Beschwerde) against the decision of the Court of Cassation of

8 October 1986 and the judgment of the Court of Appeal of 17 January

1986 was dismissed by the Federal Court on 5 November 1987.  The

decision was served on 13 November 1987.

        With regard to the applicant's complaints about judge P.'s

remarks before, and his various comments at, the appeal hearing the

Federal Court found it unnecessary to examine whether in this respect

the applicant could address his complaint directly against the Court

of Appeal since the facts complained of did not violate the Constitution.

A judge's lack of impartiality would not be called in question if, on

the basis of a consultation of the case-file, he told the lawyer that

the appeal was without prospects of success (nicht für aussichtsreich

hält).

        Insofar as the applicant complained that his lawyer was not

present when the applicant was being interrogated, the Federal Court

referred in particular to its case-law concerning Section 17 para. 2

of the Code of Criminal Procedure of the Canton of Zurich (Straf-

prozessordnung; see below Relevant domestic law and practice).  The

Court found that the applicant had not complained that a request to be

present had been arbitrarily rejected.  The Court noted that the

lawyer had been present when the applicant was interrogated for the

last time, and that the lawyer had received transcripts of the minutes

of previous interrogations.  The applicant's rights of defence under

the Swiss Constitution and the Convention had thus not been violated.

        With regard to the applicant's further complaints, inter alia,

about the lawyer's absence when the witnesses in Italy were

questioned, the Court reiterated the grounds given by the appeal

courts.  The Court also noted that both the applicant and the lawyer

had been present at the trial before the District Court when M. was

heard and that the Court of Appeal had not arbitrarily refused

to hear M.

B.      Relevant domestic law and practice

        As regards the presence of a lawyer when an accused is being

interrogated, Section 17 para. 2 of the Code of Criminal Procedure of

the Canton of Zurich states that "the investigating officer may permit

the defence counsel to be present when the accused is being questioned

in person" ("der Untersuchungsbeamte kann dem Verteidiger gestatten,

den persönlichen Einvernahmen des Angeschuldigten beizuwohnen").

        In ATF (Arrêts du Tribunal Fédéral) 104 Ia 17ff the Federal

Court has interpreted this provision as permitting the exclusion of

the lawyer, without any grounds being given, when the applicant is

interrogated for the first time.  If the lawyer is excluded on

subsequent occasions, grounds must be given.

        According to Section 26 para. 1 of the Code of Criminal

Procedure the investigating officer may delegate certain duties to the

cantonal police.

        As regards the questioning of witnesses, Section 14 of the

Code of Criminal Procedure states that the accused and his lawyer are

to be given the opportunity to be present on these occasions, and to

put questions to the witnesses.

        On the other hand, according to Swiss legal practice, a person

accused of a criminal offence may not be questioned as a witness.

This applies to a co-accused even if independent proceedings are being

conducted against him (see R. Hauser, Kurzlehrbuch des schweizerischen

Strafprozessrechts, 1984, p. 170).

        As regards the scope of an appeal, Section 419 of the Code

of Criminal Procedure states that the appeal may encompass complaints

about all deficiencies of the investigations, the trial and the

judgment of the first instance court.  The appeal suspends the

execution of the judgment.

COMPLAINTS

1.      The applicant complains that his lawyer was not present when

he was questioned on 3, 13, 15 and 18 February, 8 March and 11

April 1985.  The applicant also complains that neither he nor his

lawyer were present when the witnesses were heard in Italy.  The

applicant further complains that neither he nor his lawyer had an

opportunity to question M.  It was not possible to question him

as a witness, bound under the threat of punishment to tell the truth,

as long as M. had not been convicted with legal effect.

        The applicant relies in respect of these complaints on

Articles 6 para. 3 (b), (c) and (d) of the Convention.

2.      Under Article 6 para. 1 of the Convention the applicant

complains that the Court of Appeal judge P. was biased.  The applicant

refers to the telephone conversation of 8 January 1986.

        The applicant moreover complains that at the appeal hearing

judge P. used a commanding voice and told the applicant to reply only

with yes and no.  When during the public deliberation of the judgment

the issue of the costs of the proceedings was discussed, judge P.

refused to grant the applicant's request immediately to write off the

costs; he allegedly stated that he did not feel like giving such a

present to somebody who could spend 3,000.-SFr on an alleged holiday

trip.

3.      Under Article 6 para. 2 of the Convention the applicant

complains of the manner in which the courts concluded that he was

guilty, submitting that his version of the events was not entirely

improbable.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 5 May 1988 and registered

on 23 June 1988.

        On 5 February 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

limited to the issues under Article 6 paras. 1 and 3 (c) and (d) of

the Convention.

        The Government's observations were received by letter dated

20 April 1990 and the applicant's observations by letter dated

25 June 1990.

        On 3 December 1990 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

applicant's complaints under Article 6 paras. 1 and 3 (b), (c) and (d)

that the applicant's lawyer was not present when the applicant was

interrogated or when investigations were undertaken in Italy; that M.

was not heard as a witness; and that judge P.'s remarks on the

telephone disclosed lack of impartiality.

        The hearing took place on 31 May 1991.  The Government were

represented by their Agent, Mr.  Ph.  Boillat, Head of the European Law

and International Affairs Section of the Federal Office of Justice,

and by Mr.  B. Gehrig, judge at the Court of Cassation of the Canton of

Zurich, Mr.  V. Lieber, a Registrar at that court, and Mr.  F. Schürmann

of the European Law and International Affairs Section of the Federal

Office of Justice.  The applicant was represented by his lawyer, Mr.

F.C. Fischer.

THE LAW

1.      The applicant complains under Article 6 para. 3 (b), (c) and

(d) (Art. 6-3-b, 6-3-c, 6-3-d) of the Convention that his lawyer was

not always present when he was questioned by the investigating

authorities.  The applicant also complains under Article 6 para. 3 (b)

and (d) (Art. 6-3-b, 6-3-d) that neither he nor his lawyer were

present when witness were heard in Italy.  Moreover, neither he nor

his lawyer had an opportunity to question M. as a witness.

        The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention of bias of Court of Appeal judge P.  The

applicant refers to the telephone conversation of 8 January 1986 and

to the manner in which judge P. conducted the appeal hearing.

        The provisions of Article 6 (Art. 6) invoked by the applicant

state, insofar as they are relevant:

"1.     In the determination ... of any criminal charge

against him, everyone is entitled to a fair ... hearing by

an ... impartial tribunal.

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;

..."

2.      The Government first contend that the applicant has not

complied with the requirements under Article 26 (Art. 26) of the

Convention in that he did not employ various remedies at his disposal.

In particular the applicant failed to raise the complaint that Court

of Appeal judge P. lacked impartiality until the beginning of the

appeal hearing; in fact, he never produced the note concerning the

telephone conversation before the Swiss courts.  Insofar as the

applicant complained that his lawyer was not present when the

applicant was being interrogated, the applicant's lawyer failed to ask

the District Attorney to be present after his appointment on 25

February 1985.  As regards the applicant's complaint that his lawyer

was not present at the investigations in Italy, the applicant could

have asked for a new commission rogatory to question witnesses in

Italy.  Finally, the Government submit that the applicant could have

proposed to the District Attorney further questions to be put to M.

which would have provoked a confrontation between the two accused.

        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.

        However, the Commission considers that the Federal Court dealt

in substance with all these complaints raised by the applicant.  He

has therefore complied with Article 26 (Art. 26) of the Convention.

3.      The applicant complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention of the unfairness of the criminal

proceedings instituted against him.

        The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only 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 applications alleging

that errors of law or facts have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of the rights and freedoms set out in the

Convention (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,

236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45).

a)      It is true that the applicant also complains under Article 6

paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention that his lawyer

was not always present when he was questioned by the investigating

authorities.  A lawyer would have been particularly important in order

to explain certain contradictions in the applicant's statements.

        The applicant points out that, with the exception of 6 June

1985, his lawyer was not present at any interrogation and was not

invited thereto.  He disputes in particular that his lawyer was

informed of the interrogation of 11 April 1985.  The applicant

emphasises the relevance of the pre-trial investigations in the Canton

of Zurich, given the fact that at the trial the establishment of the

facts of the case will usually be regarded as settled.  Thus it would

have been important for the lawyer to be present during the

interrogations.  It is not the practice in the Canton of Zurich

individually to invite a lawyer or even to inform him of forthcoming

interrogations.  A request for a general permission to be present at

all future interrogations would also not be granted.

        The Government submit that neither the Convention nor the

Swiss Constitution directly grant a lawyer the right in principle to

be present when the accused is being interrogated during the

preliminary proceedings.  With reference to the Can case (Comm.  Report

12.7.84, para. 49, Eur.  Court H.R, Series A No. 96, p. 15 et seq.) the

Government consider that Article 6 para. 3 (Art. 6-3) of the

Convention only applies to preliminary proceedings if the latter are

of crucial importance for the proceedings as a whole.  This is not the

case under the criminal procedure of the Canton of Zurich.

        The Government recall that Section 17 para. 2 of the Code of

Criminal Procedure has been interpreted as permitting the District

Attorney to refuse the lawyer to be present, without giving any

grounds, when the accused is being questioned for the first time.  At

the subsequent interrogations, reasons must be given for excluding the

lawyer.  It is normal practice in the Canton of Zurich that the

District Attorney informs the lawyer of forthcoming interrogations.

While it is true that in the Canton of Zurich such investigations are

of a certain importance for the trial, the Court of Cassation will

certainly uphold a plea of nullity if it is justifiably alleged, for

instance, that evidence which was important for the judgment was not

considered.

         The Government accept in the present case that the applicant

asked for a lawyer to be present at the interrogations.  However, in

the Government's opinion the applicant has not submitted that

insufficient grounds were given for refusing the applicant's lawyer to

be present at the interrogations.  In fact the lawyer himself did not

ask to be present.  He knew that there would be an interrogation on 11

April 1985 and was present at the interrogation of 6 June 1985.  The

Government thus regard the complaint that the applicant's present

lawyer was not permitted to be present on three occasions as being

manifestly ill-founded.

        The Commission, having regard to the parties' submissions

concerning the applicant's complaints under Article 6 paras. 1 and 3 (c)

(Art. 6-1, 6-3-c) of the Convention that his lawyer was not always

present when he was being interrogated by the Zurich investigating

authorities, considers that this part of the application raises

complex issues of fact and law which can only be resolved by an

examination of the merits.  This part of the application cannot,

therefore, be declared manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.  No other grounds

for inadmissibility have been established.

b)      The applicant further complains under Article 6 paras. 1 and

3 (c) and (d) (Art. 6-1, 6-3-c, 6-3-d) that neither he nor his lawyer

were present when witnesses were heard in Italy.  It would have been

important for the lawyer to be present in order to make any further

requests on the spot for the taking of evidence.  The defence was thus

deprived of a possibility to search for exonerating evidence.

        In the applicant's submissions his lawyer was told that a

police officer was going to Italy to collect certificates of good

character.  It could not be expected from the lawyer to envisage any

further questions which might arise during the District Attorney's

investigations in Italy.

        The Government contend that this complaint is manifestly

ill-founded, submitting that the courts relied on the results

obtained in Italy only to the extent that the applicant had himself

accepted them.  Moreover, the applicant's lawyer who had been informed

before the investigations, had stated that he had no questions to

put.  After the investigations had taken place, the lawyer was given

the minutes thereof, but he failed on this occasion to ask for the

institution of a new commission rogatory.

        The Commission recalls that the fair hearing to be granted to

an accused person within the meaning of Article 6 paras. 1 and 3 (c)

and (d) (Art. 6-1, 6-3-c, 6-3-d) of the Convention requires respect

for the principle of equality of arms between the prosecution and the

defence (see No. 7413/76, Dec. 16.5.77, D.R. 9 p. 101).

        In the present case the Commission notes that the District

Attorney undertook investigations in Italy together with two police

officers.  There they questioned witnesses, in particular two travel

agents, and the applicant's lawyer was not present.

        However, according to the judgments of the Zurich Court of

Appeal of 17 January 1986 and of the Zurich Court of Cassation of 8

October 1986 the results of these investigations were only used to the

extent that they had been accepted by the applicant.  The Court of

Cassation further considered that the applicant had not shown that the

courts had used evidence which had not been accepted by him.

Moreover, also in the proceedings before the Commission the applicant

has not sufficiently demonstrated that for his conviction the Zurich

courts relied on elements of evidence obtained in Italy which he had

contested.

        Accordingly, these complaints do not disclose any appearance

of a violation of Article 6 paras. 1 and 3 (c) and (d)

(Art. 6-1, 6-3-c, 6-3-d) of the Convention.  This part of the

application is therefore manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

c)      The applicant also complains under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) that neither he nor his lawyer had an opportunity to

question M. as a witness bound under the threat of punishment to tell

the truth. This was not possible as long as M. had not been convicted

with legal effect.  It would therefore have been all the more

important to be able to question him afterwards.  However, the Court

of Appeal refused to hear M. as a witness as his testimony would be

useless, yet M.'s statements were considered insofar as they

incriminated the applicant.

        The Government contend that this complaint is manifestly

ill-founded.   Reference is made to the Isgro and Asch cases (see Eur.

Court H.R., judgment of 19 February 1991, Series A No. 194-A; judgment

of 26 April, Series A No. 203, respectively).  The Government submit

that when M. was questioned before the District Court, the applicant

and his lawyer were present, but failed to put questions to him.

Questions could also have been put to him before the Court of Appeal,

but as a former co-accused the value of his statements would have been

qualified.  Finally, M.'s evidence would not have affected his

previous statements in which he implicated the applicant.

        The Commission recalls the Convention organs' case-law

according to which the admissibility of evidence is primarily a matter

for regulation by national law and, as a rule, it is for the national

courts to assess the evidence before them.  The evidence must normally

be produced in the presence of the accused at a public hearing with a

view to adversarial arguments.  As a rule, Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) require that the defendant be given an adequate and

proper opportunity to challenge and question a witness (see Eur.

Court H.R., Isgro judgment, ibid., paras. 31-34).

        In the present case the Commission notes that on 26 June 1985

both the applicant and M., as well as their respective lawyers, were

present at the trial before the Zurich District Court.  The applicant

and his lawyer had therefore the possibility to put questions to M.

Insofar as the applicant claims that M., who was then a co-accused,

could not be questioned as a witness, the Commission considers that

for purposes of Article 6 para. 3 (d) (Art. 6-3-d), M. should be

regarded as a witness - a term to be given autonomous interpretation

by the Convention organs - because the District Court in its judgment

of 26 June 1985 in fact took into account M.'s statements (see Eur.

Court H.R., Isgro judgment, ibid., para. 33).

        It follows that there is no violation of Article 6 paras. 1

and 3 (d) (Art. 6-1, 6-3-d) of the Convention and that this part of

the application is also manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

3.      Under Article 6 para. 1 (Art. 6-1) of the Convention the applicant

contends that the Court of Appeal judge P. was biased.  The applicant

complains in particular of the telephone conversation of 8 January

1986.  The impression which the applicant's lawyer had was that judge

P. would no longer consider exonerating circumstances.  The applicant

also refers to the manner in which judge P. conducted the hearing

before the Court of Appeal.

        The Government contend that judge P. was Judge Rapporteur of a

collegiate court.  He could not be regarded as being partial merely

because he considered, on the basis of the case-file, that the appeal

offered no prospects of success and told the lawyer so.  In fact, this

is a frequent practice forming part of the relationship of trust

between the Bar and the courts.  The minutes of the hearing equally do

not indicate the partiality of judge P.

        The Commission recalls that the existence of impartiality must

be determined according to a subjective test, that is on the basis

of the personal conviction of a particular judge in a given case, and

also according to an objective test, that is by ascertaining whether

the judge offered guarantees sufficient to exclude any legitimate

doubts in this respect (see, amongst other authorities, Eur.  Court

H.R., De Cubber judgment of 26 October 1984, Series A No. 86, pp.

13-14, para. 24).

        In the present case, no issue arises as to the objective test.

Rather, in view of the applicant's complaint that judge P. in fact

regarded him as being guilty before he had been tried, the Commission

must establish the judge's impartiality according to the subjective

test.  In this respect the Commission recalls that the personal

impartiality of a judge must be presumed until there is proof to the

contrary (see Eur.  Court H.R., De Cubber judgment, ibid., p. 14,

para. 25).

        The Commission observes that according to a note for the file

prepared by the applicant's lawyer, a telephone conversation took

place on 8 January 1986 upon the initiative of judge P. with the

applicant's lawyer.  During this conversation judge P., inter alia,

asked the applicant's lawyer whether he would not withdraw the appeal

as in judge P.'s view there was not the slightest chance that anything

would be changed with regard to the first instance judgment.

        However, the Commission considers that this question was not

the main purpose of the telephone conversation which concerned mainly

organisational matters, namely the hearing of certain witnesses.  It

has not been alleged before the Commission that judge P. was not

impartial when reading the case-file and as Judge Rapporteur forming

his opinion about the prospects of the applicant's appeal.  In fact,

as the Federal Court also implied in its decision of 5 November 1987,

judge P.'s comment only concerned his point of view obtained at that

stage, i.e. on the basis of an early examination of the written

case-file.  Judge P. was only one of three judges sitting at the

hearing of the Court of Appeal, and his view, and the views of the

other judges, would depend on the examination of any further written

documents until the appeal hearing as well as on the appeal hearing

itself.

        As a result, while judge P.'s remarks during the telephone

conversation are certainly regrettable, the Commission finds that they

cannot serve to call in doubt his impartiality as such during the

proceedings within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

        Insofar as the applicant also complains under Article 6

para. 1 (Art. 6-1) of the Convention of judge P.'s conduct during the

appeal hearing itself, the Commission finds that no issue arises under

this provision.

        It follows that these complaints do not disclose any

appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention. This part of the application is therefore manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

4.      Insofar as the applicant complains under Article 6 para. 2

(Art. 6-1) of the Convention of the manner in which the courts

concluded that he was guilty, the Commission finds that no issue

arises under this provision.  The remainder of the application is

therefore 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 ADMISSIBLE, without prejudging the merits

        of the case, the applicant's complaint under Article 6

        paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention that

        his lawyer was not always present when he was interrogated

        by the Zurich investigating authorities;

        DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission               President of the Commission

      (H.C. KRÜGER)                              (C.A. NØRGAARD)

 

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