J. 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 1942, is a restaurant

proprietor resident in Herisau/Canton Appenzell Ausserrhoden (A.Rh.)

in Switzerland. Before the Commission he is represented by Dr. F. Oesch,

a lawyer practising in St. Gallen.

I.

On 14 November 1985 the District Police Office (Verhöramt) of

Canton Appenzell A.Rh. at Trogen imposed a fine of 400.-Sfr on the

applicant on the ground that he had employed foreign musicians in his

restaurant without a sufficient work permit. He had therefore

contravened Article 3 para. 3 of the Federal Act on the presence and

residence of aliens (Bundegesetz über den Aufenthalt und die

Niederlassung der Ausländer, the Aliens' Act). In particular, he had

hired a music group consisting of five Austrian musicans. When two

musicians eventually cancelled their trip, the band leader hired two

further musicians, a fact which the applicant did not notify to the

Aliens' Police.

The applicant filed an objection (Widerspruch) against this

fine whereupon on 12 March 1986 the Cantonal Court (Kantonsgericht) of

Appenzell A.Rh. acquitted him of having contravened the Aliens' Act.

The Court found, inter alia, that the applicant had not acted

undiligently by not controlling in detail the identity of all

musicians upon their arrival, and that in the case of very light

culpability the Aliens' Act did not require a conviction.

II.

The Public Prosecutor's Office appealed against this decision

to the Appenzell A.Rh. Court of Appeal (Obergericht). The trial took

place on 1 July 1986. Contrary to the usual practice, the Court did

not pass judgment on the same day. According to the reasons of its

subsequent decision of 18 November 1986 the Court then found it

necessary to call for some supplementary reports.

Thus, on 8 July 1986 the Appenzell A.Rh. Court of Appeal filed

requests for information to the Aliens' Police of Appenzell A.Rh. and

the Secretariat of a company organising the employment of musicians

(Schweizerischer paritätischer Facharbeiternachweis für Musiker). The

replies thereto were submitted to the Court on 11 and 14 July 1986,

respectively. Upon a further request of the Court of 21 October 1986,

the Secretariat organising the employment of musicians submitted

additional information on 22 October 1986.

On 18 November 1986 the Court of Appeal gave its decision.

In the operative part of this decision, it found that the applicant had

negligently contravened (fahrlässige Zuwiderhandlung) Article 3

para. 3 of the Aliens' Act, and it imposed a fine of 400.-Sfr on him.

The applicant was also ordered to pay the costs of the first and

second instance proceedings.

The operative part of the decision was served in writing on

the applicant on 19 November 1986 and received by his lawyer on

21 November 1986. This decision contained at the end a printed

note that a Federal plea of nullity (Eidgenössische Nichtigkeits-

beschwerde) could be filed against this decision with the Federal

Court (Bundesgericht).

The applicant announced by letter of 27 November 1986 to the

Court of Appeal that he would file a plea of nullity, though he later

failed to submit the substantiation therefor.

On 30 April 1987 the Court of Appeal served the written

reasons of its decision of 18 November 1986. The Court referred in

particular to the second report of 22 October 1986 of the Secretariat

of the company organising the employment of musicians. Therein it was

stated that the applicant had paid the salary for all musicians to the

band leader, and had also arranged social security matters for them.

The Secretariat concluded in its report that the present case

constituted procurement of labour (Arbeitsvermittlung). The Court

further referred to the report of the Aliens' Police according to

which the Secretariat of the company had submitted with the Aliens'

police upon the applicant's instruction an application for a work

permit for the musicians on 2 September 1985.

The Court of Appeal found that an opportunity for commenting

on these supplementary reports need not be granted to the applicant

since they concerned issues of which he was well aware (zur Genüge

bekannt). In particular, he knew that he had to settle social

security matters with the competent office, and that the Secretariat

of the company concerned had upon his instructions applied for a work

permit. As an employer he had also been aware for many years of the

distinction between the procurement of labour and the hiring out of

labour (Personalverleih).

The Court of Appeal then discussed whether the applicant could

be regarded as being an employer within the meaning of the Aliens'

Act. It found that the present case qualified as procurement of

labour since it was the applicant who had paid the salary to the

musicians and dealt with the social security matters. Accordingly,

the applicant had to be regarded as an employer. By not controlling

whether the musicians were in fact the persons in respect of whom he

had been granted a work permit, he had contravened the Aliens' Act.

The Court of Appeal concluded that the applicant's culpability

was not particularly serious, though he had already been fined for

contravening the Aliens' Act on three previous occasions. The Court

thus considered a fine of 400.-Sfr as being appropriate.

III.

On 26 May 1987 the applicant filed a public law appeal (staats-

rechtliche Beschwerde) with the Federal Court against this decision.

Therein he complained of a breach of his right to a fair hearing

(Verletzung des rechtlichen Gehörs) as guaranteed by Article 4 of the

Swiss Constitution. He alleged in particular that the Appenzell A.Rh.

Court of Appeal had relied for his conviction on reports submitted

after the trial on which he had not been able to comment.

On 22 September 1987 the Federal Court rejected the

applicant's appeal as being inadmissible. The Court found in

particular that the public law appeal had not been filed within 30

days after the date which was relevant under cantonal law in this

respect. The Federal Court recalled that if cantonal law provided

that the reasons of a decision were in each case automatically (von

Amtes wegen) served, without further request, the time-limit commenced

once the reasons were served. However, in Appenzell A.Rh. the

cantonal law provided that the relevant date for the serving of a

decision in the case of a criminal conviction was the date when the

operative part of the decision was served. The reasons for the

decision were served only upon request, not automatically. The

Federal Court also noted that this practice was applied consistently

by the cantonal authorities. Thus, the public law appeal should have

been filed within 30 days after the operative part of the decision had

been served, i.e. on 19 November 1987.

The applicant could contest the decision of the Appenzell

A.Rh. Court of Appeal before the Federal Court by means of two

remedies which can be filed simultaneously, namely the plea of nullity

and the public law appeal.

According to Article 269 para. 1 of the Federal Code of

Criminal Procedure (Bundesstrafprozessordnung) the plea of nullity can

be employed to complain of a violation of Federal law. Article 269

para. 2 reserves the public law appeal for complaints about the

violation of constitutional rights (verfassungsmässige Rechte).

As regards the public law appeal, Article 84 para. 1(a) of the

Federal Judiciary Act (Organisationsgesetz) states that it can be

directed inter alia against cantonal court decisions on the grounds of

a violation of constitutional rights of citizens.

According to Article 89 para. 1 of the Federal Judiciary Act,

a public law appeal must be filed within 30 days as from the date

which is relevant under cantonal law for the pronouncement or serving

of the decision.

In this respect, the relevant cantonal law, namely Article 174

para. 1 of the Appenzell A.Rh. Code of Criminal Procedure, states that

the operative part of a decision may be pronounced orally and is

subsequently served in writing. According to Article 175 para. 1, the

entire decision containing also the reasons is served in writing upon

request.

With regard to a public law appeal, Article 35 para. 1 of the

Federal Judiciary Act provides for the reinstitution (Wiederherstellung)

of a time-limit, if the latter has lapsed on account of an impediment

on the part of the applicant for which he cannot be made responsible

(unverschuldet) and which prevented him from acting within the

time-limit. In this case the request for reinstitution must be filed

within ten days after the impediment has ceased.

In this context the Government refer to an unpublished

decision of the Federal Court of 2 November 1984 in the case of R. v.

the Appenzell A.Rh. Public Prosecutor's Office and Court of Appeal.

Therein, R.'s lawyer contested a decision of the Appenzell A.Rh. Court

of Appeal of 29 May 1984, the reasons of which were served on 5 June

1984. When the lawyer filed his public law appeal on 6 July 1984 the

Federal Court declared it as being out of time as it should have been

filed within 30 days after the operative part of the decision had been

served, since this was the relevant date under Appenzell A.Rh.

cantonal law.

The Federal Court pointed out that the applicant was free

immediately to file a public law appeal and thereafter, upon receipt of

the written reasons, to request leave to supplement the public law

appeal, which the Federal Court would grant in such cases.

The Federal Court then dealt independently with R.'s request

for reinstitution of the time-limit according to Article 35 of the

Federal Judiciary Act. Insofar as R. maintained that a secretary

had made a mistake in respect of the time-limit, the Federal Court

found that this did not constitute a mistake for which the applicant

could not be made responsible within the meaning of Article 35 of the

Federal Judiciary Act.

COMPLAINTS

The applicant complains that the Appenzell A.Rh. Court of

Appeal based its conviction on supplementary reports submitted after

the trial. He submits that he knew nothing of these reports and was

not invited to comment thereupon. He was only informed of the

contents in particular of the documents of 11 and 14 July and

22 October 1986 in the proceedings before the Commission. It was

incorrect of the Court of Appeal to state that he had been aware

of the issues.

The applicant submits that he has not been given a fair

hearing within the meaning of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 November 1987 and

registered on 16 December 1987.

On 7 May 1988 the Commission decided to bring the application

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

submit observations on its admissibility and merits, pursuant to Rule

42 para. 2 (b) of the Rules of Procedure.

The respondent Government's observations were submitted on

19 July 1988 and the reply thereto by the applicant on 4 and

25 October 1988.