L.K. -D. v. SWITZERLAND

THE LAW

1. The applicant raises various complaints under Article 6 para. 1

(Art. 6-1) of the Convention about the appeal proceedings before the

Criminal Chamber of the Cantonal Court of the Canton of Schwyz. He

complains in particular of the composition of the Criminal Chamber,

namely that two judges sat on the bench who belonged to another

Chamber. He further complains that he could not express himself before

the Criminal Chamber, and that the latter did not conduct an oral

hearing and did not pronounce its judgment in public.

Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant for the present application:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law. Judgment

shall be pronounced publicly ..."

The Commission considers that in its decision of 25 June 1990 the

Criminal Chamber declared the applicant's appeal inadmissible as this

remedy was only open where the fine exceeded 1,500 SFr, whereas the

applicant's fine amounted to 100 SFr.

Thus, the Criminal Chamber did not decide on the applicant's

appeal. The proceedings did not therefore concern "the determination

of a criminal charge against (the applicant)" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. The guarantees of this

provision invoked by the applicant do not therefore apply to the

applicant's complaints.

This part of the application is therefore incompatible ratione

materiae with the provisions of the Convention according to Article 27

para. 2 (Art. 27-2) of the Convention.

2. Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicant complains that there was no exchange of submissions in

respect of his plea of nullity before the Second Appeal Chamber of the

Cantonal Court of the Canton of Schwyz, particularly as the Public

Prosecutor was also not heard.

The applicant also complains under this provision that he could

not reply to the observations submitted by the Cantonal Court of the

Canton of Schwyz on 21 September 1990 to the Federal Court.

According to the Convention organs' case-law, the principle of

equality of arms implies that each party shall have a reasonable

opportunity of presenting his case to the Court under conditions which

do not place him at a substantial disadvantage vis-à-vis his opponent.

However, this principle is only one feature of the wider concept of

fair trial by an independent and impartial tribunal (see Eur. Court

H.R., Borgers judgment of 30 October 1991, Series A no. 214-B, p. 31,

para. 24; mutatis mutandis Dombo Beheer B.V. judgment of

27 October 1993, Series A no. 274, p. 19, para. 33).

As regards the proceedings before the Second Appeal Chamber, the

Commission notes that the applicant had the opportunity of presenting

his views in his plea of nullity to the Second Appeal Chamber of the

Cantonal Court of the Canton of Schwyz. As the Public Prosecutor did

not comment on the plea of nullity, the applicant was not at a

disadvantage vis-à-vis his opponent.

The Commission has next examined the complaint that the applicant

could not reply to the observations submitted by the Cantonal Court to

the Federal Court.

However, the applicant has not pointed out instances whereby the

Cantonal Court listed grounds unknown to the applicant and proving

decisive for the Federal Court's judgment. Indeed, he has not

explained in what respect the Federal Court relied on these

observations at all.

The Commission has therefore examined the observations which the

Cantonal Court filed with the Federal Court. They related to the

procedure chosen by the Cantonal Court in respect of the applicant's

remedies; the composition of the Court; the necessity of an oral

hearing; the public pronouncement of a judgment; and the costs of the

proceedings. In the Commission's opinion there is no indication that

in its ensuing decision the Federal Court relied on any new factual

arguments submitted by the Cantonal Court in its observations.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that in respect of his plea of nullity the Second Appeal

Chamber of the Cantonal Court did not conduct an oral hearing and did

not pronounce its judgment publicly.

According to the Convention organs' case-law, the absence of

publicity before a second or third instance court may be justified by

the special features of the proceedings at issue (see Eur. Court H.R.,

Sutter judgment of 22 February 1984, Series A no. 74, pp. 13 et seq.,

paras. 30 et seq.; Helmers judgment of 29 October 1991, Series A no

212-A, p. 16, para. 36).

In the present case it is not disputed that the trial in first

instance before the March District Court was conducted publicly.

The Commission has therefore had regard to the nature of the

issues to be decided by the Second Appeal Chamber of the Cantonal Court

upon the applicant's plea of nullity.

According to Section 152 of the Schwyz Code of Criminal

Procedure, a plea of nullity serves to complain about the breach of an

essential principle of procedure; a factual assumption which is

arbitrary or not supported by the file; or a breach of substantial law.

In his plea of nullity of 7 June 1990, the applicant complained

that the investigating judge had not issued a penal order; that the

March District Court had not examined the applicant's submission that

there was no connection between the medical results and his treatment

of the victim; that a provision of the Swiss Penal Code should be

interpreted differently; and that all costs had been imposed on him.

In the Commission's opinion, none of the issues to be decided by

the Cantonal Court required a renewed establishment of the facts, or

a renewed determination of which facts had been proved or were

applicable to the case. Insofar as the applicant complained that the

District Court had not addressed one of his submissions, the Commission

finds that this point merely concerned the legal assessment of

otherwise established facts.

Thus, the Second Appeal Chamber was only confronted with

questions of law, the plea of nullity not raising any serious issues

as to the facts which would have required a hearing.

Moreover, in view of the limited nature of the issues before the

Second Appeal Chamber, the absence of public pronouncement did not

contravene Article 6 para. 1 (Art. 6-1) of the Convention, the object

pursued by this provision, namely ensuring scrutiny of the judiciary

by the public, having been achieved during the course of the

proceedings taken as a whole (see Eur. Court H.R., Axen judgment of

8 December 1983, Series A no. 72, p. 14, para. 32).

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2. (Art. 27-2) of the

Convention.

4. Under Article 6 para. 2 (Art. 6-2) of the Convention the

applicant complains that the Cantonal Court held that he had

incorrectly been acquitted by the District Court, although his

acquittal had already become final.

According to Article 6 para. 2 (Art. 6-2) of the Convention,

"everyone charged with a criminal offence shall be presumed innocent

until proved guilty according to law".

In the present case the Criminal Chamber of the Cantonal Court

merely found that the District Court had incorrectly pronounced both

an acquittal and a conviction, and that only the applicant's conviction

could be contested by an appeal. There is no indication here that the

Criminal Chamber treated the applicant as if he were guilty before it

rejected his plea of nullity.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. The applicant complains that there was no second instance court

deciding on his first instance conviction. He relies on Article 2 of

Protocol No. 7 (P7-2) to the Convention which states, insofar as

relevant:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law ..."

The Commission notes that the applicant had the possibility of

filing a plea of nullity against the decision of the March District

Court. It need nevertheless not examine whether or not this plea of

nullity amounted to a "review by a higher tribunal" within the meaning

of para. 1 of Article 2 of Protocol No. 7 (P7-2-1).

Thus, according to para. 2 (P7-2), the right to review is

subjected to "exceptions in regard to offences of a minor character,

as prescribed by law".

In the Commission's opinion, the offence of which the applicant

was convicted - assault with no lasting damage to body or health -

constitutes a "minor" offence as confirmed by the fine of 100 SFr.

Domestic law qualified the offence as a misdemeanour and thus also

regarded it as a minor one.

The Commission therefore considers that the exception to the

right to a review by a higher tribunal, pursuant to Article 2 para. 2

of Protocol No. 7 (P7-2-2), applies.

It follows that the remainder of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.