A.A. v. SWITZERLAND

THE FACTS

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

summarised as follows.

The applicant, a Swiss citizen and businessman, resided at

Buttisholz in Switzerland. He died in 1991. His heirs are the widow,

Mrs. R.A.-W., and his four children, M.H.-A., R.A.A., S.A. and E.A.

The applicant was represented before the Commission by

Mr. L.A. Minelli, a lawyer residing at Forch in Switzerland, who is now

also representing the applicant's heirs before the Commission.

I.

In 1977/78 various companies, which the three S. brothers had

founded in the Canton of Uri, merged with two building firms, A.B. AG

and C.B. AG in the Canton of Lucerne whose board members were the

applicant and a certain R.B.

In May 1981 the Investigating Office (Verhöramt) of the Canton

of Uri instituted criminal investigations against various persons

involved in the new company.

On 21 March 1986 the Uri Public Prosecutor's Office

(Staatsanwaltschaft) indicted altogether 14 persons, among them the

applicant. The latter was indicted of forging documents

(Urkundenfälschung), obtaining a false registration (Erschleichung

einer falschen Beurkundung), fraud (Betrug) and misappropriation of

funds (Veruntreuung).

According to a time-table issued on 28 October 1986 by the Uri

Regional Court (Landgericht), the trial began on 17 November 1986. The

applicant was heard on 18 November, 2 December 1986 and 19 January

1987. At this last hearing the applicant put forward various requests

for the taking of evidence.

On 12 March 1987 the Uri Regional Court convicted the applicant

of forging documents, obtaining a false registration and

misappropriation of funds, and sentenced him to four years'

imprisonment. The other co-accused were convicted and received prison

sentences of between four months and five years and 10 months.

The judgment counted 136 pages. It listed in detail the final

requests of the Public Prosecutor's Office and the defence as well as

the final statements (Schlussanträge) of the accused.

With regard to the applicant's requests at the hearing for the

taking of further evidence the Court found, with reference to Section

180 of the Code of Criminal Procedure of the Canton of Uri

(Strafprozessordnung; see below Relevant domestic law), that these

requests had been filed out of time. The Court further noted that all

the parties to the proceedings had had the possibility to be present

when the co-accused were interrogated, and themselves to put questions.

II.

On 6 August 1987 the applicant filed an appeal (Berufung) against

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

Uri. Therein he requested inter alia that certain persons be

questioned, certain documents be handed out, and the preparation of an

expert opinion be ordered.

On 28 October 1987 the applicant filed a further request for the

taking of evidence.

In the ensuing appeal proceedings the Court of Appeal first heard

twelve other co-accused. Each co-accused was heard individually, the

Public Prosecutor, the accused and his lawyer being present. The

subject of each hearing concerned the charges brought against the

respective co-accused. According to Section 33 para. 2 of the Code of

Criminal Procedure of the Canton of Uri the oral submissions of the

Public Prosecutor and the defence were not recorded in the minutes

(Protokoll).

The applicant was heard on 1 June 1988. During the hearing the

Public Prosecutor relied on statements made by the applicant or the

other co-accused when they had been heard.

By dates of 1, 15 and 29 June 1988 the Court of Appeal of the

Canton of Uri gave its judgment. It convicted the applicant of the

offences of forging documents, obtaining a false registration, fraud

and embezzlement of funds, and sentenced him to five years'

imprisonment.

The judgment stated at the outset that on grounds of

practicability the applicant's appeal proceedings had been separated

from those concerning other accused.

Under the heading "Requests for the taking of evidence according

to statement of 6 August 1987" ("Beweisergänzungsbegehren gemäss

Eingabe vom 6. August 1987"), p. 5 the Court of Appeal found that it

was permissible for a Canton to enact a provision such as Section 180

of the Code of Criminal Procedure which required the compliance with

certain formal conditions. The Court found that in any event defects

of the right to a fair hearing in the first instance proceedings could

be healed in the course of the appeal hearing if the appeal court

enjoyed full jurisdiction. The Court then explained with regard to the

requests for the taking of evidence why they had to be rejected, inter

alia, as the matter was clear ("das Beweisthema gilt als erstellt").

The Court of Appeal further addressed the applicant's complaint

that he had not been present when the co-accused were heard, and that

therefore their statements should not be used against him. The Court

found that the applicant had had the possibility during the

investigations, in the framework of the right to consult the case-file,

to submit further written questions and to ask for the questioning of

further witnesses. This the applicant had in fact done, though some

of the requests had been filed out of time.

In its judgment the Court of Appeal then dealt in detail with the

various points raised by the applicant in his appeal against the

conviction and sentence of the Regional Court.

III.

The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)

against the decision of the Court of Appeal which was dismissed by the

Federal Court (Bundesgericht) on 29 March 1990.

The applicant also filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court. Therein he complained inter alia

that no minutes had been prepared of the Court of Appeal hearing; it

was impossible many months later when preparing the Court judgment to

remember what had been said by the Prosecutor also in favour of the

applicant.

The applicant further complained that the Court of Appeal had

regarded the requests for the taking of evidence at the Regional Court

hearing as being out of time. With reference to Article 6 of the

Convention, he stated that the Court of Appeal had been excessively

formal when distinguishing, according to Section 180 para. 1 of the

Code of Criminal Procedure, which requests for the taking of evidence

could be made before entering into the merits of the case, and which

could be made during the oral submissions.

The applicant also complained that as he never had had the

possibility to put complementary questions to the co-accused, and yet

the lower courts had relied on their statements when assessing the

evidence, the decision was unjust.

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

29 March 1990. The decision, numbering 59 pages, was served on the

applicant on 18 May 1990.

In respect of the applicant's complaint that the Court of Appeal

had applied Section 180 of the Code of Criminal Procedure with

excessive formalism, the Federal Court considered that any defect in

the right to a fair hearing was healed if the person concerned had the

possibility to express himself before an appeal body which had the

jurisdiction freely to examine all those questions which could have

been put before the lower court.

With regard to the applicant's complaints that no minutes had

been prepared on the hearing before the Court of Appeal, the Federal

Court found that the Court of Appeal had acted in accordance with the

law, namely Section 33 of the Uri Code of Criminal Procedure.

According to the constant practice of the Court of Appeal, only the

requests (Anträge) of the parties to the proceedings were recorded in

the minutes; no violation of constitutional rights could be seen

therein. The Court continued:

[Translation]

"If the rule mentioned complies with the Constitution, it does

not become unconstitutional if criminal proceedings are conducted

against a number of participants... The applicant maintains that

due to the absence of any minutes he was unable to ascertain what

was stated in the proceedings against the co-accused. To this

the reply must be given that according to the practice of the

Court of Appeal he could have learned about the requests of the

parties from the minutes and about the respective oral

submissions from the notes of the pleadings of the other lawyers,

if due to time constraints he could not, or did not want to,

participate in all the hearings. There was in any event no

violation of constitutional rights."

[German]

"Hält die erwähnte Regelung vor der Verfassung stand, so wird sie

nicht dadurch verfassungswidrig, dass ein Strafverfahren gegen

mehrere Beteiligte geführt wird ... Wenn der Beschwerdeführer

vorbringt, er habe wegen Fehlens des Protokolls nicht feststellen

können, was in den Verfahren gegen die Mitangeklagten vorgetragen

worden sei, so ist ihm entgegenzuhalten, dass er nach der

erwähnten Praxis des Obergerichts die Anträge der

Verfahrensbeteiligten dem Protokoll und die dazu gemachten

mündlichen Ausführungen den Plädoyernotizen der andern Anwälte

entnehmen konnte, wenn er wegen zeitlicher Überforderung nicht

allen Verhandlungen beiwohnen konnte oder wollte. Eine

Verletzung verfassungsmässiger Rechte liegt jedenfalls nicht

vor." (p. 9).

With regard to the applicant's complaints that he had never had

the possibility at least once to be present when the co-accused were

questioned and to put complementary questions to them, the Federal

Court found that in view of the extraordinary complexity of the case

it was understandable that the applicant was not personally invited to

every questioning of every co-accused. The Court noted that the

applicant actually admitted having been able to consult the statements

of the co-accused. The Court concluded (p. 20) that "as long as he had

the possibility to put complementary questions in writing and to call

up new witnesses, (Article 6 para. 3 <d> of the Convention) is not

violated" ("Hatte er aber die Möglichkeit, schriftliche

Ergänzungsfragen zu stellen und neue Zeugen anzurufen, so ist (Artikel

6 Abs. 3 lit. d EMRK) nicht verletzt").

Section 33 para. 2 of the Code of Criminal Procedure of the

Canton of Uri states that the minutes of the hearing must "record its

course and the essential result and must contain the requests made and

decisions taken during the hearing, and the judgment" ("deren Gang und

Ergebnis im wesentlichen wiedergeben sowie die im Laufe der Verhandlung

gestellten Anträge, ergangenen Entscheide und den Urteilsspruch

enthalten").

Section 180 para. 1 of the Code of Criminal Procedure of the

Canton of Uri states:

[Translation]

"1. Before entering into the substantial issues of the case,

preliminary questions may be put with regard to jurisdiction, the

composition of the court, the standing down of judges and the

exclusion of the public. Requests may also be made with regard

to complementing the investigations, admitting new documents of

evidence, hearing, by the court, of previous or new witnesses and

experts, and taking evidence at the scene ...."

[German]

"1. Vor dem Eintreten in die Hauptsachen können Vorfragen über

die Zuständigkeit, die Besetzung des Gerichts, den Ausstand, den

Ausschluss der Öffentlichkeit sowie Begehren um Ergänzung der

Untersuchung, um Zulassung neuer Beweisurkunden, um gerichtliche

Einvernahme bisheriger oder neuer Zeugen und Sachverständigen und

um Durchführung eines gerichtlichen Augenscheins gestellt werden

...."

COMPLAINTS

1. When introducing the application the applicant complained that

he was not able duly to gather, before the Court of Appeal hearing took

place in his case, from official court minutes what the co-accused, the

prosecution and the defence had said.

He submitted that it was impossible to reply in the Court of

Appeal hearing to the submissions of the prosecution to the extent that

these referred to submissions made in proceedings against other

co-accused.

He complained that due to the lack of extensive court minutes the

courts, when reaching their decision, could only occasionally rely on

minutes; for the rest they had to attempt to reconstruct from memory

the course of the many hearings and the oral submissions of the

prosecution and the defence.

The applicant also complained that the lack of court minutes did

not allow him duly to prepare his defence.

The applicant, who relied in respect of these complaints on

Article 6 paras. 1 and 3 (b) of the Convention, submitted that

comprehensive court minutes would have been particularly important in

a complex court case such as the present one, involving altogether 14

co-accused.

2. The applicant also complained under Article 6 para. 1 of the

Convention that he was not able to make additional requests during the

Court of Appeal hearing for the taking of evidence. This should have

been possible at least until the Public Prosecutor spoke.

3. Under Article 6 para. 3 (d) of the Convention the applicant

complained that it was not possible to put questions to the co-accused,

as he only learned from the Public Prosecutor's submissions what they

had said about the applicant at their trials. For instance, the

applicant was not informed when the co-accused S. would be questioned

for which reason it was not possible for him to be present.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 October 1990 and registered

on 15 October 1990.

On 27 May 1991 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.

The Government's observations were received by letter dated

16 September 1991 and the applicant's observations were dated

28 October 1991.

On 11 December 1991 the Government informed the Commission of the

applicant's decease.

On 27 January 1992 the applicant's heirs informed the Commission

that they intended to pursue the application.

On 15 February 1992 the Commission decided to invite the

Government to comment on the question whether the applicant's heirs

could pursue the application.

The Government's observations were received by letter dated

27 March and communicated to the applicant's heirs on 6 April 1992.