W.S. v. SWITZERLAND

THE FACTS

The facts, as submitted by the parties, may be summarised as

follows.

The applicant, born in 1942, is a Swiss national who was detained

at the Etablissement de la Plaire de l'Orbe in Switzerland; currently,

he is at large. He is represented by Ms. B. Hug, a lawyer practising in

Zurich.

Application No. 20231/92

On 2 November 1984 the investigating judge (Untersuchungsrichter)

of the Ering and Gundis Districts in the Canton of Valais issued a

warrant of arrest against the applicant on suspicion of theft of a car.

The preliminary investigations against the applicant were eventually

extended to over 100 offences, inter alia theft and robbery.

On 31 August 1985 a certain R. was arrested. Subsequently, R.

incriminated the applicant as having been an accomplice. Following R.'s

statements, investigations were undertaken in Italy which proved

unsuccessful.

On 5 March 1986 the applicant was arrested in Lausanne in

Switzerland. On 12 March 1986 the investigating judge of the Ering and

Gundis Districts ordered his detention on remand. On the same day the

investigating judge addressed a circular to all Swiss banks which

referred to the offences of which the applicant and R. were suspected.

In the ensuing proceedings the applicant refused to express himself

on the charges brought against him.

Upon the request of the District Prosecutor (Bezirksanwaltschaft)

of the Canton of Zurich, the applicant was brought to Zurich on

5 November 1986 in order to be confronted with a witness. As from

6 November 1986 the applicant was detained at Regensdorf prison in the

Canton of Zurich where he served the remainder of a sentence of initially

eight and a half years' imprisonment pronounced by the Zurich Court of

Appeal (Obergericht) in 1972.

On 22 February 1988 the applicant escaped from Regensdorf prison.

He was later convicted of having committed armed robbery and other

offences in the Canton of Jura. An international warrant of arrest was

issued against him in respect of the proceedings in the Canton of Valais.

On 30 June 1989 he was arrested in La Gomera on the Canary Islands, and

on 23 January 1990 he was extradited to Switzerland where he was

subsequently remanded in custody in the Canton of Valais.

On 1 March 1990 the applicant was confronted with the co-accused R.

who denied having committed a criminal offence with the applicant. R.'s

statements, made in Italian, were not translated. The applicant

unsuccessfully filed two requests for a renewed confrontation in the

presence of an interpreter.

On 29 May 1990 the authorities of the Canton of Jura instituted

criminal proceedings against the applicant on suspicion inter alia of

theft and robbery.

On 28 July 1990 the applicant filed with the investigating judge of

the Ering and Gundis Districts an application for release from detention

on remand. On 6 September 1990 he complained to the Valais Cantonal

Court (Kantonsgericht) about the delay in the examination of his

application. His application for release was dismissed by the

investigating judge on 10 September 1990 and, upon appeal, by the

Cantonal Court on 22 October 1990.

The applicant then filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht).

Meanwhile, on 22 November 1990 the investigating judge informed the

Federal Court that the applicant had on the same day been transferred to

the Canton of Jura. However, on 20 December 1990 the Indictment Chamber

of the Cantonal Court of the Canton of Jura decided to adjourn the

proceedings against the applicant in order to clarify issues arising from

the applicant's extradition, in particular its extension to the

proceedings in the Canton of Jura. On 29 December 1990 the applicant was

again transferred to the Canton of Valais.

On 9 January 1991 the Federal Court partly dismissed the applicant's

public law appeal insofar as it concerned the length of his detention on

remand. The Court agreed in particular with the investigating judge and

the Cantonal Court that there was a serious suspicion that the applicant

had committed the offences at issue, and that the danger of his

absconding had clearly been established as he had escaped seven times

since 1972. Insofar as R. had stated that he had not committed the

offences together with the applicant, the Court noted that the applicant

was renowned for changing his appearances. The Federal Court further

found that detention on remand of so far 25 months was not yet excessive

if compared with the sentence which the applicant might expect.

Nevertheless the Court advised the cantonal authorities to speed up the

investigation.

On the other hand, the Court upheld the applicant's public law

appeal in respect of his complaint under Article 5 para. 4 of the

Convention, namely that whereas the applicant had filed his application

for release from detention on 28 July 1990, the investigating judge had

only dealt with it on 10 September 1990. However, this breach of Article

5 para. 4 of the Convention did not in the Court's view imply that the

applicant's detention was unlawful, since it had just upheld the reasons

therefor, namely the suspicion of having committed an offence and the

danger of absconding.

On 15 February 1991 the investigating authorities questioned the

applicant.

On 25 February 1991 the investigating judge of the Ering and Gundis

Districts requested the Spanish authorities to extend the extradition of

the applicant to further offences.

On 4 August 1991 the applicant filed his second application for

release which the investigating judge of the Ering and Gundis Districts

dismissed on 8 August 1991. The decision was served on the applicant on

20 August 1991. On 21 August 1991 the applicant filed an appeal with the

Cantonal Court. While his appeal was pending, the applicant was

transferred on 30 August 1991 to the Canton of Jura. On 13 September 1991

the Cantonal Court of the Canton of Valais dismissed the applicant's

appeal as it was no longer competent to examine his applications for

release from detention. The decision was served on the applicant on

27 September 1991.

On 28 October 1991 the applicant filed a public law appeal with the

Federal Court in which he complained that there had been no speedy

decision by a court on his application for release from detention, and

of a breach of his right to be tried (Aburteilung) within a reasonable

time.

While the public law appeal was pending, the investigating judge of

the Canton of Jura decided on 12 November 1991 to suspend the applicant's

detention on remand in the Canton of Jura, whereupon the applicant was

again transferred to the Canton of Valais.

The Federal Court dismissed the applicant's public law appeal on

27 November 1991. It found that detention on remand of so far 33 months

was justified and that a period of 22 days, i.e. from 22 August until

13 September 1991, for the examination of his application for release

complied with the requirements under the Convention. In this respect the

Court noted in particular that the applicant was himself responsible for

the fact that the decision of 8 August 1991 was only served on him on

20 August 1991.

In its decision the Federal Court further admonished the authorities

of the Canton of Valais that they should avoid any further delay, if

necessary not await further information from the Spanish authorities, and

conclude the criminal proceedings as soon as possible (die Behörden aber

gleichwohl alles daran setzen sollten, damit das Strafverfahren im Kanton

Valais so rasch als möglich zum Abschluss gebracht werden könne).

Application No. 20545/92

On 24 December 1991 the investigating judge wrote to the Federal

Office of Police Affairs (Bundesamt für Polizeiwesen), asking the Office

to intervene with the Spanish authorities in respect of his request to

extend the extradition to further offences. On 3 February 1992 the

investigating judge wrote directly to the Swiss ambassador in Madrid who

in his reply of 10 February referred to delays on the part of the Spanish

authorities.

The applicant's third application for release, filed on 1 May 1992,

was dismissed by the investigating judge of the Ering and Gundis

Districts on 5 May 1992. On 22 May 1992 the Cantonal Court of the Canton

of Valais dismissed the applicant's further appeal.

On 22 May 1992 the investigating judge fixed a time-limit of 60 days

for the Public Prosecutor's Office and the applicant to provide

supplementary evidence (Beweisergänzung); he referred in particular to

delays on the part of the Spanish authorities, and recalled that the

time-limit only concerned those 105 offences in respect of which

extradition had been authorised.

The applicant filed a public law appeal in which he again complained

that there had been no speedy decision by a court on his application for

release from detention, and that his right to be tried within a

reasonable time had been breached.

Meanwhile, on 1 June 1992 the applicant attempted to commit suicide;

he also refused to drink and eat. On several occasions he was brought

to the medical department of the prison.

On 31 July 1992 the Federal Court dismissed the applicant's public

law appeal. The Court found that both the investigating judge and the

Cantonal Court had examined his application for release with sufficient

speed. The Federal Court noted in particular the steps undertaken by the

investigating judge between 24 December 1991 and 22 May 1992. Moreover,

the length of the applicant's detention on remand did not yet correspond

to the expected length of sentence if the applicant was convicted.

However, the Court noted a certain delay in respect of investigations

conducted by the Spanish authorities. The decision continues:

<Translation>

"At present it cannot yet be said that there is a breach of the

right enshrined in Article 5 para. 3 and Article 6 para. 1 of the

Convention to a trial within a reasonable time. However, it must

be emphasised that the investigation must now be brought to an end

without delay, and regardless of the decision of the Spanish

authorities as to the extension of the extradition. ... Should the

investigations not be concluded until the end of September 1992, the

question could then be asked in the light of the obligation to

accelerate proceedings whether the length of detention must not be

considered as being excessive."

<German>

"(Es) kann im heutigen Zeitpunkt noch nicht gesagt werden, der in

Art. 5 Ziff. 3 und 6 Ziff. 1 EMRK vorgesehene Anspruch auf

Aburteilung innerhalb einer angemessenen Frist sei verletzt. Es ist

jedoch festzuhalten, dass die Untersuchung nun unverzüglich zum

Abschluss gebracht werden muss, und zwar ohne Rücksicht auf den

Entscheid der spanischen Behörde über die Ergänzung der

Auslieferung. ... Sollte das Untersuchungsverfahren nicht bis Ende

September 1992 abgeschlossen sein, so könnte sich dannzumal die

Frage stellen, ob die Haftdauer unter dem Gesichtspunkt des

Beschleunigungsgebots nicht als übermässig bezeichnet werden

müsste."

Meanwhile the Indictment Chamber (Anklagekammer) of the Cantonal

Court of the Canton of Jura committed the applicant to trial. The

applicant then filed a request (Gesuch), in the last resort before the

Federal Court, to join the proceedings before the Cantons of Valais and

of Jura and to conduct them before the authorities of the Canton of Jura.

The Federal Court dismissed the request on 1 September 1992, finding

that a joinder would prolong the proceedings pending in the Canton of

Jura.

Application No. 23117/93

On 10 September 1992 the investigating judge of the Ering and Gundis

Districts terminated the investigations and on 16 September 1992 the

Public Prosecutor filed the indictment.

On 22 September 1992 the President of the Ering and Gundis District

Court invited the applicant to submit before 15 October 1992 any evidence

which he wished to produce at the trial which was provisionally fixed for

16 and 17 November 1992.

On 4 October 1992 the applicant requested prolongation of the time-

limit and adjournment of the trial in view of the trial in the Canton of

Jura scheduled for November 1992. The applicant also filed his fourth

application for release from detention. The application for release from

detention was dismissed on 6 October 1992 by the President of the

District Court and on 17 November 1992 by the Cantonal Court of the

Canton of Valais.

The applicant then filed a public law appeal with the Federal Court,

raising complaints under Articles 5 para. 1 and 6 para. 1 of the

Convention.

Meanwhile, on 30 October 1992 the applicant was transferred to the

Canton of Jura where on 30 November 1992 the Jura Criminal Court

sentenced him to 12 years' imprisonment inter alia for robbery and theft.

The applicant filed an appeal against this judgment to the Court of

Cassation of the Cantonal Court. In his appeal he also challenged all

the judges of the Court of Cassation as a result of which an

extraordinary court was constituted.

As from 31 December 1992 the applicant was again remanded in custody

in the Canton of Valais.

The trial before the Ering and Gundis District Court was eventually

fixed for 29 March 1993.

On 9 February 1993 the Federal Court dismissed the applicant's

public law appeal. It considered that so far the applicant's detention

had lasted 45 months, if the seven months spent in detention in Spain

awaiting extradition were included. On the other hand, it was not

necessary to consider whether the further five months spent in detention

in the Canton of Jura had to be taken into consideration, as claimed by

the applicant, because even a period of 50 months was not yet excessive.

The Federal Court referred here in particular to the judgment of the

European Court of Human Rights in the case of W. v. Switzerland (Eur.

Court H.R., judgment of 26 January 1993, Series A No. 254), in which the

opinion expressed by the Commission in its Report of 10 September 1991

(ibid. pp. 30 et seq.) had not been confirmed. It could not yet be said

that the length of detention came close to the sentence to be expected.

Moreover, the investigating judge had indeed complied with the time-limit

of September 1992 fixed in the Federal Court's decision of 31 July 1992.

While certain delays had occurred, these could be explained by the fact

that the investigating judge had awaited the decision of the Spanish

authorities to deal with a request to extend the scope of the extradition

before closing the investigation. The decision continued:

<Translation>

"If it is considered that the case is complex, that the applicant

refused from the beginning to make a statement, that particularly

in the final stages the investigating judge very much tried to speed

up the proceedings, and that the trial has meanwhile been fixed for

29 March 1993, it cannot be said that the detention at issue is

excessive."

<German>

"Wird berücksichtigt, dass es sich um eine komplexe Sache handelt,

dass der Beschwerdeführer von Anfang an die Aussage verweigerte,

dass sich der Instruktionsrichter vor allem in der letzten Phase

sehr darum bemühte, das Verfahren speditiv voranzutreiben, und dass

die Hauptverhandlung nun auf den 29. März 1993 angesetzt ist, so

kann die hier in Frage stehende Haft nicht als übermässig bezeichnet

werden."

The trial was held on 29 March 1993 and lasted six hours.

On 31 March 1993 the Ering and Gundis District Court convicted the

applicant of over 100 offences, inter alia robbery, theft and damage to

property, and sentenced him to 13 years' imprisonment. The judgment,

mentioning 23 private parties, numbered 98 pages. In view of the

conviction by the Jura Criminal Court which had not yet become final, the

sentence was pronounced subject to Section 350 of the Penal Code.

According to this provision, if a person is convicted of different

offences by different courts, the court which has pronounced the most

severe punishment shall determine the entire punishment (Gesamtstrafe).

The applicant appealed against this judgment to the Cantonal Court

of the Canton of Valais.

On 24 June 1993 the applicant filed his fifth application for

release from detention with the Cantonal Court. It was dismissed on

5 July 1993 by the President of the Cantonal Court.

Against this decision the applicant filed a public law appeal with

the Federal Court on 4 August 1993. He contested in particular that

there was a serious suspicion of his having committed the offences since

the former co-accused and witness R. had clearly stated that he, R., had

not committed any criminal offences together with the applicant.

On 24 August 1993 the Federal Court dismissed the applicant's

appeal. It found that in view of the applicant's conviction the cantonal

authorities could reasonably suspect the applicant of having committed

the offences at issue. With reference to its decision of 9 February 1993

the Court found no indication that the Ering and Gundis District Court

had delayed the proceedings, in particular the trial and the conviction.

Application No. 23223/94

On 29 October 1993 the applicant asked the Cantonal Court of the

Canton of Valais to fix a date for the appeal hearing. On

2 November 1993 the Cantonal Court decided to adjourn the appeal hearing

until the Court of Appeal of the Canton of Jura had ruled on the

applicant's appeal against the conviction of 30 November 1992.

On 9 November 1993 the applicant filed his sixth application for

release with the Cantonal Court. On 19 November 1993 he filed a

complaint with the Federal Court about a delay in the decision of the

Cantonal Court. On 24 November 1993 the Cantonal Court of the Canton of

Valais dismissed his request.

His public law appeal of 27 November 1993, in which he complained

under Article 5 para. 3 of the Convention of the length of his detention,

and under Article 6 para. 1 of the Convention of the length of the

proceedings, was dismissed by the Federal Court on 21 December 1993. The

Court noted that Article 5 para. 3 of the Convention no longer applied

to the applicant's detention as he had been convicted in first instance.

On the other hand, the Court found that the adjournment of the appeal

proceedings before the Cantonal Court could make the length of the

applicant's detention excessive and it held that detention would have to

be terminated if no date for the appeal hearing was fixed ("dit que la

détention préventive devra être levée si la date des débats de la Ire

Cour pénale n'est pas fixée sans délai"). In respect of the applicant's

complaint under Article 5 para. 4 of the Convention the Court found that

the period of thirteen days, commencing on the day when the applicant's

application for release of 9 November 1993 was received and ending on

24 November 1993 when the Cantonal Court decided, was not excessive.

Subsequent Developments

The appeal hearing before the Cantonal Court of the Canton of Valais

took place on 30 May and 1 June 1994.

On 1 June 1994 the Cantonal Court pronounced its judgment. It

partly upheld the applicant's appeal in that he was acquitted of certain

offences, inter alia of damage to property. On the other hand, the Court

convicted him of altogether 95 offences and sentenced him to 10 and a

half years' imprisonment, the detention on remand to be deducted

therefrom.

On 7 September 1994 the applicant filed a public law appeal

(staatsrechtliche Beschwerde, recours en droit public) with the Federal

Court in which he complained inter alia of a breach of his right to a

fair hearing, of the arbitrary application of cantonal law, and of the

arbitrary appreciation of evidence. He also requested his release from

detention on remand. The applicant furthermore filed a plea of nullity

(Nichtigkeitsbeschwerde, pourvoi en nullité).

On 17 November 1994 the Federal Court dismissed the public law

appeal in a judgment numbering 33 pages. On the same day it also

dismissed the applicant's plea of nullity.

The applicant's request for the reopening of the Federal Court

proceedings was dismissed by the Federal Court on 7 March 1995.

COMPLAINTS

Application No. 20231/92

This application is directed against the decision of the Federal

Court of 27 November 1991.

Under Article 5 para. 3 of the Convention the applicant complains

of the length of his detention on remand. He points out that the last

investigation undertaken in his case occurred on 1 March 1990.

Under Article 5 para. 4 of the Convention the applicant complains

that his application for release from detention on remand, which was

filed on 4 August 1991 with the investigating judge, was not dealt with

by the Cantonal Court until 13 September 1991. This period was too long

in view of the fact that the Cantonal Court received a copy of his

request already on 4 August 1991, and that nothing had happened in the

case after the Cantonal Court had dealt with it in 1990.

Under Article 5 para. 5 of the Convention the applicant requests

damages.

Under Article 6 para. 1 of the Convention he complains about the

length of the criminal proceedings instituted against him.

Application No. 20545/92

This application is directed against the Federal Court's decision

of 31 July 1992.

The applicant reiterates his complaints under Article 5 para. 3 of

the Convention of the length of his detention on remand, and under

Article 6 para. 1 of the Convention of the length of the criminal

proceedings instituted against him. He also requests damages under

Article 5 para. 5 of the Convention.

Application No. 23117/93

This application is directed against the Federal Court's decision

of 24 August 1993.

The applicant reiterates his complaints under Article 5 para. 3 of

the Convention of the length of his detention on remand. He submits that

there was no suspicion that he had committed the offences at issue as the

witness R. had stated that he, R., had not committed any offence with the

applicant. The applicant submits that the offences with which he was

charged in the bill of indictment of 16 September 1992 dated back to the

years 1984, 1985 and 1986. The case could not have been complex, as the

investigating judge only conducted one act of investigation

(Untersuchungshandlung) between 1986 and the trial in 1993, namely on

1 March 1990.

Under Article 5 para. 4 of the Convention, and with reference to the

decision of the Cantonal Court of the Canton of Valais of 5 July 1993

"the question arises whether a period of ten days until the judges

decided ... is not too long" ("stellt sich wiederum die Frage, ob die

Dauer von 10 Tagen, bis die Richter sich entschieden, ... nicht zu lange

ist").

Under Article 5 para. 5 of the Convention the applicant requests

damages.

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

of the length of the criminal proceedings instituted against him. He

points out that, although he requested the joining of the proceedings in

the Cantons of Jura and of Valais, they were conducted separately which

led to delays.

Application No. 23223/94

This application is directed against the Federal Court's decision

of 21 December 1993.

Under Article 5 para. 1 (c) of the Convention the applicant contests

that there was a suspicion that he had committed a criminal offence.

Under Article 5 para. 3 of the Convention the applicant complains

of the length of his detention on remand.

Under Article 5 para. 4 of the Convention the applicant complains

that the Cantonal Court of the Canton of Valais did not determine his

application for release of 9 November 1993 until 24 November 1993.

Under Article 5 para. 5 of the Convention the applicant requests

damages.

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

of the length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on 14 May 1992, 18 August 1992,

20 September 1993 and 30 December 1993, and registered on 26 June 1992,

25 August 1992, 17 December 1993 and 10 January 1994.

On 29 June 1994 the Commission decided to join the applications and

to communicate them to the respondent Government and invite them to

submit observations on the complaints under Article 5 paras. 3 and 4 and

Article 6 para. 1 of the Convention.

The Government's written observations were submitted on 31 October

1994. The applicant replied on 2 December 1994.

On 13 April 1995 the applicant submitted further observations. The

Government replied thereto on 22 May 1995.