F.S.J. AND 22 OTHERS v. SWITZERLAND

THE FACTS

The application has been introduced by 23 applicants, all of whom

are German citizens. Before the Commission the applicants are

represented by Mr M. Günther, a lawyer practising at Hilden in Germany.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

On 17 September 1990 a demonstration took place at the Leibstadt

nuclear power plant, located in Switzerland near the Swiss-German

border. The demonstrators came mainly from Switzerland and Germany.

Certain persons entered the premises and climbed on to the cooling

tower. The power plant company filed a criminal complaint alleging

trespass (Hausfriedensbruch) and causing damage to objects

(Sachbeschädigung).

Criminal proceedings were instituted against the applicants who

had participated in this demonstration. The applicants were

represented by Mr M. Günther who also represented the applicants in

letters rogatory proceedings in Germany.

By penal order (Strafbefehl) of 2 July 1992 the Zurzach District

Office (Bezirksamt) sentenced each applicant to 30 days' imprisonment,

suspended on probation, and a fine of 300 Swiss Francs (CHF) on account

of causing damage to objects (Sachbeschädigung) and alleging trespass

(Hausfriedensbruch). The penal orders were served on the applicants'

representative in Germany. Upon his objection, proceedings were

referred to the Zurzach District Court (Bezirksgericht).

By letter of 30 November 1992 the District Court's President

informed the applicants' representative that he could not represent his

clients as only licensed (zugelassen) lawyers could practise in the

Canton of Aargau. When the applicants' representative expressed his

disagreement, the District Court on 19 April 1993 issued a decision not

to admit the applicants' lawyer at the trial. The applicants were

given a time-limit of 30 days to find another lawyer.

The applicants and their lawyer unsuccessfully appealed against

this decision to the Court of Appeal (Obergericht) of the Canton of

Aargau.

Their public law appeal (staatsrechtliche Beschwerde) was

dismissed by the Federal Court (Bundesgericht) on 22 August 1994, the

decision being served on 15 November 1994.

In its decision the Federal Court first dealt with the

applicants' argument that even family members and other untrained

persons were allowed to act as representative in criminal proceedings.

However, the Court noted that such representation was justified on

personal or financial grounds.

The Federal Court then dealt with the applicants' complaint that

Article 6 para. 3 (c) of the Convention enshrines the right freely to

choose the legal representative (p. 12-15):<Translation>

"The text of this provision does not directly answer the

question whether the accused may choose any particular third

person as defence counsel, or whether he is bound by the

respective licensing conditions for lawyers. A restrictive

interpretation of the right to choose in this provision is called

for already on practical grounds: if an accused could in

principle choose any person whom he found suitable as defence

counsel, this would as a result invalidate the limitations

regularly envisaged under national law in matters of criminal

procedure. Any third party (and also any professionals) could

then, by invoking the accused's right to a free choice, bring

about his right to practise as defence counsel in a particular

criminal case without having to comply with the requirements

applicable to lawyers. This cannot be the purpose of the

Convention provision mentioned ...

The Cantonal legislator may generally limit professional

advocacy to those lawyers who have demonstrated the required

knowledge of Swiss law by means of a State examination in the

particular Canton or (on the basis of existing domestic rules on

freedom of movement) in a third Canton and whose residence in

Switzerland has familiarised them with the local judicial

customs. Such licensing restrictions can easily be justified in

the interests of justice at issue and on the grounds of economic

order. A refusal to license foreign lawyers is not the sole or

primary aim of a policy intended to protect the profession. On

the one hand, foreign lawyers have as a rule only a limited

knowledge of Swiss and cantonal law and are not familiar with the

local circumstances and the forensic customs. Furthermore, there

are practical reasons for refusing a licence (i.e. enforcement

of professional regulations; possibility of disciplinary

supervision: address for serving mail; practical difficulties

when dealing with the court, for instance when deciding on dates

or authorising consultation of the case-file). It makes no

difference whether a foreign lawyer wants to act on a regular

basis in Switzerland or in a particular Canton, or whether, as

in the present case, he only wants to represent foreign clients

before a Swiss court in particular proceedings. The grounds

mentioned have sufficient weight to exclude generally even

individual exceptions. Nor is the legitimacy of this point of

view called in question by the fact that (on the basis of S. 5

of the Transitional Provisions of the Federal Constitution),

lawyers from other Cantons may appear before a court, as opposed

to foreign lawyers (or those with foreign diplomas). Thus, the

diploma obtained in another Canton will guarantee at the outset

knowledge of the (unified) Swiss law, inter alia, the Penal Code.

One can also expect a certain minimal familiarity with procedures

of other Cantons which may differ from each other but are

influenced by a common tradition. As a rule, this is not the

case with lawyers with foreign diplomas working abroad."

The criminal proceedings are still pending before the Zurzach

District Court.

S. 64 para. 3 of the Federal Constitution (Bundesverfassung)

provides that "the organisation of the courts (and) the court procedure

... shall remain ... with the Cantons".

According to S. 5 of the Transitional Provisions (Übergangs-

bestimmungen) of the Federal Constitution, persons of liberal

professions (wissenschaftliche Berufe) who have obtained a diploma to

practise may do so in the whole of the Swiss Federation.

S. 61 para. 1 of the Code of Criminal Procedure (Strafprozess-

ordnung) of the Canton of Aargau provides that only licensed lawyers

(patentierte Anwälte) may act as defence counsel. Defence in court of

an accused is also possible, by a person's legal representative, by his

spouse, a parent, or a child who has come of age.

In order for a lawyer to obtain a licence for professional

practice, the Bar Act (Anwaltsgesetz) of the Canton Aargau provides

that a lawyer must have obtained a diploma (Fähigkeitsausweis), either

in the Canton of Aargau or in another Canton.

COMPLAINTS

The applicants complain under Article 6 para. 3 (c) of the

Convention that Mr Günther was not admitted as the applicants' freely

chosen defence counsel at the trial. It is pointed out that the Swiss

authorities never criticised the professional abilities of Mr Günther,

and that indeed he was accepted by the prosecuting authorities at the

outset of the investigations.

The applicants chose Mr Günther as they all live in Germany and

can contact him more easily than a lawyer in Switzerland. Moreover,

it appeared necessary to employ a German lawyer familiar with German

law as proceedings also took place via letters rogatory in Germany.

The applicants may also be prosecuted in Germany for a similar offence.

The applicants feared that lawyers in the comparatively small

Canton of Aargau would not be sufficiently distant from the local

courts to obtain the applicants' confidence. The applicants point out

that a foreign lawyer who is related to an accused (spouse, parent)

would not, according to Swiss legislation, be excluded from

representation.

The applicants submit that conditions prevailing under Article 6

para. 3 (c) in the case of officially appointed lawyers, in particular

the interests of justice, cannot apply in the case of a freely chosen

lawyer.