HUBER v. Switzerland

THE FACTS

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

summarised as follows:

The applicant, a Swiss citizen born in 1958, resides in

Zurich. Before the Commission she is represented by Messrs. E.

Schönenberger and K. Mäder, lawyers practising in Zurich.

In connection with criminal investigations aginst one Mr. K.

in Hamburg and one Mr. B. in Zurich concerning procuring (Zuhälterei)

and pandering (Kuppelei), the Zurich District Attorney's Office

(Bezirksanwaltschaft) issued an order against the applicant to

appear on 8 August 1983 as witness (Vorführungsbefehl). The order was

signed by the District Attorney D.J.

On 11 August 1983 she was brought by the Zurich Town Police

before the District Attorney's Office where she was interrogated.

Thereby she admitted having lived of the proceeds of prostitution.

However, she stated that she had known Messrs. K. and B. only by name

and that she did not hand over to anybody part of her income as a

prostitute. As a result, the District Attorney D.J. remanded the

applicant in custody on the same day.

According to the warrant of arrest (Verhaftsverfügung) signed

on 11 August 1983 by the District Attorney D.J., there was the urgent

suspicion that members of the group "Hell's Angels" of Zurich and

Hamburg had brought German prostitutes to Zurich. There, in return

for payment, some had married Swiss men. These women had been urged,

partly under threat, to commit professional prostitution whereby the

"Hell's Angels" had protected the women who in turn had given them

part of the proceeds. The applicant was urgently suspected of having

been one of these women. The warrant of arrest stated that as a

witness and under threat of punishment on account of false testimony

she had denied any connection with the "Hell's Angels". The warrant

referred in particular to a danger of collusion and the danger that

evidence would be destroyed. It also stated that an appeal against

the order of arrest could be filed within 48 hours with the Public

Prosecutor's Office (Staatsanwaltschaft) of the Canton of Zurich.

The applicant was released from detention on remand on

19 August 1983.

On 12 October 1984 the Zurich District Attorney's Office

indicted the applicant before the Judge in Criminal Cases at the

Zurich District Court (Einzelrichter in Strafsachen am Bezirksgericht)

on the grounds of false testimony in court proceedings and

alternatively (eventualiter) of the hindrance of criminal proceedings

and postulated a punishment of 5,000-.SF. The bill of indictment was

signed by the District Attorney D.J. who had also signed the warrant

of arrest.

The trial took place on 10 January 1985. According to the

minutes of the trial, the applicant's representative stated as

follows:

<Translation>

"In this case the first thing to note is a violation

of the human right embodied in Article 5 para. 3 (Art. 5-3) of the

European Convention on Human Rights which states that anyone

who is arrested or detained in accordance with the

provisions of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention has to

be brought promptly before a judge or other officer

authorised by law to exercise judicial power. This never

happened in the present case. Rather, the person who

remanded the accused in custody, District Attorney J., is

today at the same time the author of the bill of

indictment. I refer to a comparable application made to the

European Commission of Human Rights in the cases of

Schiesser and [X.] which were published in the journal

'Europäische Grundrechte-Zeitschrift'. In that decision the

condition for a violation of human rights was not met in

view of the fact that the District Attorney who ordered the

arrest was not the person who drew up the bill of

indictment. That case differs from the present one. Be

that as it may, I shall in any event refer this case to the

higher authorities."

<German>

"Vorliegend wurde zunächst das in Art. 5 Ziff. 3 der

Konvention zum Schutze der Menschenrechte und

Grundfreiheiten (EMRK) statuierte Menschenrecht verletzt,

wonach jede nach der Vorschrift von Art. 5 Ziff. 1 c) EMRK

festgenommene oder in Haft gehaltene Person

unverzüglich einem Richter oder einem anderen, gesetzlich zur

Ausübung richterlicher Funktionen ermächtigten Beamten

vorgeführt werden muss. Eine solche Vorführung hat

vorliegend nie stattgefunden; vielmehr ist derjenige, der

die Angeklagte in Haft genommen hat, heute gleichzeitig

Ankläger, nämlich der Bezirksanwalt J. Ich verweise auf

eine entsprechende Beschwerde, die an der Europäischen

Menschenrechtskommission in Sachen Schiesser und [X.]

anhängig gemacht worden und in der, Europäischen

Grundrechtezeitschrift, veröffentlicht worden ist. In jenem

Entscheid wurde das Kriterium der Menschenrechtsverletzung

verneint, weil der verhaftende Bezirksanwalt nicht mit dem

anklagenden Bezirksanwalt identisch war, es sich mithin um

einen andersgelagerten Fall als den vorliegenden Fall

gehandelt hatte; ich werde auf jeden Fall diesen Fall

weiterziehen."

On 10 January 1985 the Zurich District Court acquitted the

applicant on the grounds that she had never been invited (vorgeladen)

to an interrogation for which reason her testimony was invalid and

could not be considered. The judgment does not refer to the issues

raised at the trial by the applicant's lawyer under Article 5 para. 3

(Art. 5-3) of the Convention.

Upon appeal (Berufung) by the Public Prosecutor's Office the

Zurich Court of Appeal (Obergericht) on 13 September 1985 convicted

the applicant of attempted false testimony and sentenced her to a fine

of 4,000 SF. The Court found that her testimony was not invalid and

could be used. It further referred to the monitoring of telephone

conversations between the applicant and Mr. K. which had been lawfully

undertaken by the authorities in Germany and the minutes of which had

been transmitted by way of legal cooperation to Switzerland. The

Court concluded on the basis of these minutes that the applicant had

in fact known Messrs. K. and B. The judgment of the Court of Appeal

also refers to the issue under Article 5 para. 3 (Art. 5-3) of the Convention:

<Translation>

"Finally it must be noted that the applicant's

lawyer unjustifiably put forward the objection that in the

context of her arrest and in contravention of Article 5

para. 3 (Art. 5-3) of the Convention the accused had not been brought

before a judge or other officer authorised by law to

exercise judicial power. For, according to the case-law of

the Federal Court, the Zurich District Attorney exercises in

the procedural stage of investigation also judicial power

within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention

(ATF [Arrêts du Tribunal Fédéral] 102 Ia 179)."

<German>

"Schliesslich ist festzuhalten, dass der Einwand der

Verteidigung, die Angeklagte sei im Zusammenhang mit ihrer

Verhaftung in Verletzung von Art. 5 Ziff. 3 EMRK keinem

Richter oder einem anderen gesetzlich zur Ausübung

richterlicher Funktionen ermächtigten Beamten vorgeführt

worden, zu Unrecht erfolgte. Nach der Rechtsprechung des

Bundesgerichtes übt nämlich der zürcherische Bezirksanwalt

im Verfahrensstadium der Untersuchung auch richterliche

Funktionen im Sinne von Art. 5 Ziff. 3 EMRK aus (ATF 102 Ia

179)."

The applicant filed a plea of nullity (Nichtigkeits-

beschwerde) which was dismissed by the Zurich Court of Cassation

(Kassationsgericht) on 1 July 1986. The Court found that the issue

under Article 5 para. 3 (Art. 5-3) of the Convention was irrelevant for the

present case. If the applicant therefore challenged the District

Attorney she should have done so already during the investigation.

The applicant then lodged a public law appeal with the Federal

Court (Bundesgericht) in which she complained, inter alia, that,

contrary to Article 5 para. 3 (Art. 5-3) of the Convention, the Zurich District

Attorney had not only remanded the applicant in custody but also

indicted her.

The Federal Court dismissed the applicant's public law appeal

on 24 November 1986. The Court found first that according to S. 90 of

the Federal Judiciary Act (Organisationsgesetz) the substantiation of

a public law appeal has to be included in the appeal statement itself

and that it could not therefore consider the notes of the applicant's

representative in the proceedings concerning the Schiesser case

before the European Court of Human Rights. In respect of the

applicant's complaint under Article 5 para. 3 (Art. 5-3) of the Convention the

Court held:

<Translation>

"As the applicant has long since been released from

detention on remand, she no longer has an actual practical

interest in a response to this complaint for which reason

the Court can no longer deal with it. The objection would in

any event be unfounded since both the Federal Court (ATF 102

Ia 179ff) and the European Court of Human Rights (judgment of

4 December 1979 in the Schiesser case) have declared that the

Zurich District Attorney qualifies in the procedural phase of

the investigation as an 'officer authorised by law to exercise

judicial power' within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention."

<German>

"Nachdem die Beschwerdeführerin längst aus der

Untersuchungshaft entlassen worden ist, hat sie jedoch kein

aktuelles praktisches Interesse mehr an der Behandlung

dieser Rüge, weshalb darauf nicht einzutreten ist. Der

Vorwurf wäre übrigens unbegründet, da sowohl das

Bundesgericht (ATF 102 Ia 179ff.) als auch der Europäische

Gerichtshof für Menschenrechte (Urteil vom 4. Dezember 1979

in Sachen Schiesser) erklärt haben, der zürcherische

Bezirksanwalt sei im Verfahrensstadium der Untersuchung ein

'gesetzlich zur Ausübung richterlicher Funktionen

ermächtigter Beamter' im Sinne von Art. 5 Ziff. 3 EMRK."

The judgment was served on the applicant on 18 December 1986.

According to S. 32 of the Judiciary Act (Gerichtsverfassungs-

gesetz, GVG) of the Canton of Zurich of 1976 the District Court

examines as a criminal court all matters not falling within the

jurisdiction of another court. S. 44 and 57 GVG state the various

offences which the Court of Appeal and the Jury Court, respectively,

are competent to decide; they do not include the charges brought

against the applicant.

S. 72 GVG provides that the District Attorney's Office acts as

the indicting authority (Anklagebehörde) at the level of the District

Court, and the Public Prosecutor's Office before the Court of Appeal

and the Jury Court (Geschworenengericht). S. 73 GVG states that the

investigation of offences is conducted by the District Attorney's

Office and the Public Prosecutor's Office. In practice, most

investigations are carried out by the District Attorney. As a rule,

District Attorneys are elected for office by the people for four years

(S. 86 para. 2 GVG).

S. 55 of the Code of Criminal Procedure (Strafprozessordnung,

StPO) of the Canton of Zurich of 1919 authorises the District Attorney to

issue a warrant of arrest. Against the latter an appeal may be filed.

S. 64 StPO obliges the District Attorney to hear an arrested suspect

within twenty-four hours. According to S. 65 StPO, the suspect must

thereby be clearly informed of the reasons prompting the suspicion held

against him.

Detention on remand ordered by the District Attorney may not

exceed 14 days, except if continuation is ordered by the President of

the District Court or of the Prosecuting Chamber (Anklagekammer) of

the Court of Appeal, depending on the jurisdiction of the respective

Court (S. 51 StPO).

Once the investigation has been closed and the prosecution has

not been discontinued, the indicting authority, i.e. the District

Attorney's Office or the Public Prosecutor's Office, commence the main

proceedings (Hauptverfahren) by submitting the bill of indictment (S.

161 StPO). The President of the District Court or of the Prosecuting

Chamber of the Court of Appeal will then decide whether or not to

admit the bill of indictment (S. 165 StPO). S. 178 StPO states:

<Translation>

"The indicting authority is a party to the main

proceedings. It has as such all the rights and duties of a

party.

In his statement the indicting officer should not

one-sidedly confine himself to stressing items that tell

against the accused, but should also take into account items

in his favour."

<German>

"Die Anklagebehörde ist im Hauptverfahren

Prozesspartei. Sie hat alle einer solchen zustehenden Rechte

und Pflichten.

Der Ankläger soll bei seinen Vorträgen nicht

einseitig nur dasjenige hervorheben, was den Angeschuldigten

beschweren kann, sondern auch das berücksichtigen, was zu

seinen Gunsten spricht."

The District Attorney remains under the control of the Public

Prosecutor's Office (S. 86 GVG), and the latter is authorised to issue

directives to him (S. 27 StPO). In practice District Attorneys

receive no special orders or instructions from the Public Prosecutor's

Office concerning their powers of placing individuals in detention.

Apart from the power to order arrest and detention and to

interrogate the arrested suspect, the District Attorney has the power

to issue a summons order (Strafbefehl) if the accused has confessed

and admitted his guilt, and if a fine (Busse) or prison sentence of a

maximum of one month is considered to be adequate (S. 317 StPO).

After conviction, S. 419 StPO envisages an appeal to the Court

of Appeal in which complaints can be raised against all defects

(Mängel) both of the investigation and of the procedure (Verfahren) and

the decision of the first instance court.

COMPLAINTS

The applicant now complains that, contrary to Article 5 para.

3 (Art. 5-3) of the Convention, the same District Attorney decided on the

applicant's detention and later also indicted her. Thus the District

Attorney could not be regarded as having been independent within the

meaning of that provision.

In her reply to the Government's observations the applicant

also stated on 13 April 1988, in connexion with her submissions as to

whether she had complied with the conditions of Article 26 (Art 26) of the

Convention, that the Federal Court should also have entered into her

public law appeal in accordance with Article 13 (Art. 13) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 February 1987 and registered

on 13 March 1987.

On 7 October 1987 the Commission decided to bring the application

to the notice of the respondent Government and to invite them pursuant

to Rule 42 para. 2 (b) of the Rules of Procedure to submit observations

on its admissibility and merits, in respect of the complaints under

Article 5 para. 3 (Art. 5-3) of the Convention relating to the functions of the

District Attorney concerned.

The respondent Government's observations were submitted on

18 December 1987 and the reply thereto by the applicant on 13 April 1988.

SUBMISSIONS OF THE PARTIES

The Government's submissions as to the facts have been

included in THE FACTS above.

The Government note that the present application raises the

same issues as those before the Convention organs in the cases of

Schiesser (Eur. Court H.R., judgment of 4 December 1979, Series A No.

34) and X. (No. 8485/79, Dec. 17.3.81, D.R. 22 p. 131 ff). In both

cases, the Convention organs concluded that the Zurich District

Attorney was indeed a "judge or other officer authorised by law to

exercise judicial power" within the meaning of Article 5 para. 3 (Art. 5-3) of

the Convention. This officer was therefore entitled to order

detention on remand.

In the applicant's submissions, however, the present

application differs essentially from the above cases with the result

that that case-law cannot be applied here. In particular, the

District Attorney who ordered her arrest was also the person who later

drew up the bill of indictment. Thus, in the applicant's submission

this officer no longer fulfilled the condition of impartiality.

the Convention)

1. According to the Commission's case-law Article 26 (Art. 26) of the

Convention requires the observance of the relevant procedural

requirements under domestic law. Thus, there is no exhaustion of

domestic remedies within the meaning of this provision if a domestic

appeal has been declared inadmissible on account of a failure to

observe a procedural requirement (see No. 6878/75, Dec. 6.10.76, D.R.

6 p. 79 ff).

The Government submit that, in the present case, the

applicant has not observed the procedural conditions prescribed under

Swiss law. S. 90 of the Federal Judiciary Act requires that in

the case of a public law appeal the appeal statement specifying the

constitutional rights or legal principles allegedly violated must

state the relevant grounds. However, the applicant's lawyer merely

referred to the submissions he had made before the European Court of

Human Rights in the Schiesser case. The Swiss Federal Court

considered this to be incompatible with S. 90 of the Federal Judiciary

Act and in its judgment of 24 November 1986 the Court therefore did

not enter into the applicant's public law appeal. The Government

therefore conclude that the applicant has for this reason not

exhausted domestic remedies.

2. The Government submit that also in another respect the

conditions of the exhaustion of domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention have not been fulfilled. According

to the case-law of the Convention organs the applicant must have expounded, at

least in substance, the complaints she intends to raise before the Commission.

As for a State seeking to shelter behind the duty to exhaust remedies, it is

for the State to "establish the existence of available remedies that have not

been utilised by those concerned" (see Eur. Court H.R., Foti and others

judgment of 10 December 1982, Series A No. 56, p. 17 para. 48). Moreover, "the

only remedies which Article 26 (Art. 26) of the Convention requires to be

exercised are those that relate to the breaches alleged and at the same time

are available and sufficient" (see Eur. Court H.R., Van Oosterwijck judgment

of 6 November 1980, Series A No. 40, pp. 13f para. 27). The remedies must

exist with a sufficient degree of certainty, both in practice and in theory,

otherwise they lack the requisite availability and effectiveness (see, mutatis

mutandis, Eur. Court H.R., Van Droogenbroeck judgment of 24 June 1982, Series

A No. 30, p. 30 para. 54). It lies with the respondent Government to

demonstrate that these various conditions have been fulfilled (see Eur. Court

H.R., Deweer judgment of 27 February 1980, Series A No. 35, pp. 15 and 18f,

paras. 26 and 32, respectively).

The Government submit that in the present case the applicant

should therefore have lodged an appeal against her arrest by the

Zurich District Attorney. Here, the Government specify that the

offence of false testimony in connection with procuring falls within

the jurisdiction of the District Attorney and that the arrest of the

applicant was carried out in this context. The applicant should,

therefore, have expected as soon as she was arrested that the officer

who had ordered her arrest would also subsequently, in principle,

decide on the drawing up of the bill of indictment. The Government

refer here to S. 44, 56 and 72 of the Judiciary Act of the Canton of

Zurich.

In this context, the cases of Schiesser and X. mentioned

above are of particular relevance. In the Schiesser case, that

applicant lodged an appeal against the order of arrest, and in the

last instance the Swiss Federal Court delivered its judgment in which

it rejected the applicant's public law appeal. In the case of X. an

appeal was lodged against the decision to extend the detention.

Again, the Federal Court delivered judgment in the last instance in

which it rejected that applicant's public law appeal.

The Government refer to these two cases for a further reason.

The lawyer representing those two applicants is also now representing

the present applicant. He should therefore be particularly well

versed in the problems of the case and the remedies available to him.

Failure to make use of the remedies available is thus even less

excusable.

As regards the circumstances of the present case the

Government note that the applicant was arrested on 11 August 1983. The

arrest order was served on her the same day by the District Attorney,

Mr. D.J., and bears the signature of the applicant. This order

expressly provides for the possibility of an appeal (see THE FACTS

above). However, the applicant did not avail herself of this

possibility and the decision to arrest her has therefore never been

contested.

On 17 August 1983, while still in detention, the applicant

appointed as her representative the lawyer now representing her before

the Commission. On his advice she could, on the basis of Article

5 para. 4 (Art. 5-4) of the Convention, have had the legality of her detention

examined by filing a request for her release, which under Swiss

criminal procedural law is the normal procedure. While the Zurich

Code of Criminal Procedure does not expressly provide for this

procedure, it exists in practice. In accordance with this practice,

the person detained may at any time submit a request for release to

competent examining authorities. In the last instance the Federal

Court, when deciding on a public law appeal, could have pronounced

itself on the legality of this deprivation of freedom. The Government

refer here to various publications of Swiss authors. It is undisputed

that the applicant never requested her release.

The Government thus note that the applicant contested neither

the order of arrest nor the legality of the detention. Clearly,

therefore, the condition of the exhaustion of domestic remedies has

not been complied with.

The Government observe further that the District Attorney D.J.

carried out the whole enquiry in the applicant's case. On 12 October 1984,

he drew up the bill of indictment against the applicant for false

testimony and hindrance of criminal proceedings. Throughout the

procedure before the examining authorities the applicant's lawyer took

no action. He merely participated at the hearing of 27 September 1984.

Throughout this period, no appeal was lodged and the procedure was

never contested as such.

The applicant's lawyer did not invoke a violation of Article 5

para. 3 (Art. 5-3) until the trial on 10 January 1985, i.e. 17 months after the

applicant's arrest and 3 months after the bill of indictment (see

THE FACTS above). In its judgment, the District Court did not go

into the merits of this allegation.

The Zurich Court of Appeal, in considering an appeal lodged by

the Public Prosecutor's Office, confined itself in its judgment of

13 September 1985 to referring in general terms to the case-law of

the Swiss Federal Court, according to which during the investigation the

Zurich District Attorney exercises judicial functions within the meaning

of Article 5 para. 3 (Art. 5-3) of the Convention.

After her conviction by the Court of Appeal on 13 September

1985, the applicant filed a plea of nullity with the Court of

Cassation of the Canton of Zurich. The latter did not in its judgment

of 1 July 1986 consider the merits of the allegation that the District

Attorney was not a judge. It merely stated that any such challenge

should have been made during the investigation. Since no such

challenge had been made, it could no longer revert to the matter.

Nor did the decision of the Federal Court of 24 November 1986

on the applicant's public law appeal go into the merits of the issue

raised under Article 5 para. 3 (Art. 5-3) of the Convention since the applicant

no longer had any actual practical interest to have this issue

determined.

3. The Government thus conclude that before the Federal Court

the applicant did not observe the procedural requirements laid down in

S. 90 of the Federal Judiciary Act, as would be required by domestic

law (see para. 1 above). Moreover, the applicant did not make timely

use of the appropriate legal procedures to contest either the

decision to arrest her or the investigation. Finally the

applicant submitted her complaint based on Article 5 para. 3 (Art. 5-3) of the

Convention at too late a stage, namely during the trial. The

Swiss courts therefore declared this complaint inadmissible (see para.

2 above).

The Government therefore consider that the applicant

has in respect of her present application not complied with the

conditions of the exhaustion of domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention.

The Government recall that the complaint under Article 5 para.

3 (Art. 5-3) of the Convention is not new insofar as it relates to the Zurich

District Attorney's functions. In the Schiesser case the Government

had ample opportunity to express their views on these issues. The

Government's written observations have been published in Eur. Court

H.R., Series B No. 32. In the light of the above the Government are

convinced that the application is inadmissible for failure to comply

with the requirements of the exhaustion of domestic remedies within

the meaning of Article 26 (Art. 26) of the Convention. The Government refrain

therefore for the time being from expounding any substantive argument,

while respectfully referring the Commission to the various conclusions

published in Series B No. 32, pp. 39-59 and 78-90. However, the

Government reserve the right to revert to the merits of the present

application, should the Commission declare it admissible.

On the basis of Articles 26 and 27 para. 3 (Art. 26, Art. 27-3) of the

Convention, the respondent Government invite the Commission to declare the

application inadmissible.

The applicant's submissions as to the facts have been included

in THE FACTS above.

the Convention)

According to S. 419 of the Zurich Code of Criminal Procedure,

an appeal is possible against the investigation as well as the first

instance procedure and judgment. A fortiori this must apply to the

first instance proceedings themselves. The applicant was therefore

free to let the decision to detain her go unchallenged for the time

being. This decision did not acquire legal force. It was possible

and permissible for her to bring the issue up again during the trial.

The applicant doubtlessly and correctly followed the sequence

of domestic remedies. In the context of her public law appeal, the

Federal Court intervened, or should have intervened, in respect of the

complaint concerning the judge ordering detention.

The Federal Court denied the applicant's practical interest

and did not enter into her complaint. However in the next sentence of

its decision the Court, as the Supreme Court handing down judgments

which are nationally binding, stated that the objection lodged would

in any event be unfounded, since both the Federal Court itself and

as the European Court considered that the Zurich District Attorney

acting in the investigation qualified as an officer authorised by law

to exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3)

of the Convention. Once such a statement has been made, it is not possible

afterwards simply to hide behind formal aspects. In actual fact, the Federal

Court stated its position. It is common knowledge that these "in any event"

statements have both in practice and in theory the effect of preliminary

rulings.

The Federal Court's decision not to intervene starkly

contradicts its own practice whereby the Court consistently renounces

the requirement of a current practical interest. In particular, the

Court will examine the complaint, if the intervention complained of

could be repeated at any time, and if in the individual case a timely

constitutional review would hardly ever be possible (kaum je möglich

wäre), so that the requirement of a practical interest would exclude

the review of constitutionality. The applicant refers here to ATF 107

Ia 139 and 108 Ia 42.

However, in most cases persons detained on remand are released

before the Federal Court takes its decision on the application for

release. If this criterion were applied, therefore, applications for

release would largely be denied the possibility of constitutional

review. As a result, the Federal Court regularly enters into public

law appeals concerning the imposition of detention on remand without

applying the requirement of current practical interest. It goes

without saying that this must also apply to applications for release

from detention on remand which have been complained of upon appeal, in

so far as this is admissible under the relevant cantonal code of

criminal procedure, as in the instant case under S. 419.

In accordance with its constitutional importance and

responsibility, the Federal Court as a rule also relinquishes the

requirement of a personal interest where a complaint raises questions

of fundamental importance, where priority must be given to the

discharge of the Federal Court's function as supervisor of the rule of

law, democracy and the Federal State. The applicant submits that the

question of the independence of the judge deciding on detention on remand

within the meaning of the Convention lies at the centre of

constitutional credibility.

In fact, the Federal Court should have entered into the public

law appeal in accordance with Article 13 (Art. 13) of the Convention. Under

that provision, the applicant has the right to an effective remedy

before a national authority when rights or freedoms under the

Convention have been violated, notwithstanding that the violation has

been committed by persons acting in an official capacity. If, when a

Convention violation has been alleged, the Federal Court takes no

action because the violation has ceased in the meanwhile, it renders

the guaranteed legal protection under the Convention devoid of all

effect.

The Federal Court did not conclude that the previous remedies

had been employed incorrectly. The previous cases before the

Convention organs concerning the District Attorney merely demonstrate

that the issue can also be raised independently in appeal proceedings.

The previous cases demonstrate that the complaint may no longer be

raised and taken before a higher court in the context of complaints

concerning the trial.

Article 5 para. 3 (Art. 5-3) of the Convention

The applicant submits that the safeguard of the independence

of judges in a constitutional state is a self-evident truth. In the

present case, the applicant, with the assistance of the municipal

police, was taken on 11 August 1983 to the office of the District

Attorney in Zurich, on the strength of a warrant of arrest issued by

that office, where she was interrogated as a witness. She was then

placed in detention on remand by the District Attorney D.J. On

12 October 1984 the same District Attorney D.J. indicted the applicant

before the Zurich District Court. Thus the same person D.J. was both

the judge deciding on detention on remand and the prosecutor. However,

a prosecutor can never be a judge or an officer authorised by law to

exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of

the Human Rights Convention. The prosecutor is a party.

The applicant appears to request the Commission to declare the

application admissible and to find a breach of Article 5 para. 3 (Art. 5-3)

of the Convention.