R.D. v. SWITZERLAND

THE FACTS

The applicant, a Swiss citizen born in 1957, is a businessman

currently residing at an unknown place in Ireland. Before the

Commission he is represented by Mr P. Frei, a lawyer practising in

Zürich.

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

summarised as follows.

On 6 June and 28 June 1990, respectively, the Graubünden cantonal

police arrested C. and H. on suspicion of having committed drug

offences. Both declared that they had obtained cocaine in Davos from

a certain K. in 1987 and 1988. When shown a photograph of the

applicant, both C. and H. identified him as K. The applicant had at

that time escaped from prison where he was serving a prison sentence,

inter alia for robbery.

Subsequently, the applicant was again detained and continued

serving his prison sentence.

Criminal investigations were then instituted against the

applicant on suspicion of having contravened the Narcotics Act

(Betäubungsmittelgesetz). When questioned, he contested having

committed these offences, though he admitted that at the critical time

he had been in Davos under the name of K.

On 2 October 1990 the applicant, while in detention, was

confronted with C. and H., respectively, each meeting lasting

approximately five minutes. The applicant's officially appointed

lawyer had excused himself and was not present. The minutes of the

confrontation with C. state as follows:

"Question to C.: Do you know the gentleman present?

(C.:) I refuse all statements.

Question to the applicant: Do you know this gentleman present?

(The applicant:) I'm not sure whether I know the gentleman, as

I know a lot of people."

The minutes of the confrontation with H. state as follows:

"Question to H.: Do you know the gentleman present?

(H.:) I'm not sure.

Question to H.: Have you ever obtained cocaine from this

gentleman?

(H.:) I will not make a statement in this respect.

Question to (the applicant): Do you know this gentleman present?

(The applicant:) I'm not sure; I know a lot of people.

Question to (the applicant): Did you give him cocaine in the

winter of 1987/88?

(The applicant:) No."

respectively.

On 16 April 1991 the criminal investigations against the

applicant were closed. He was granted ten days' time to consult the

case-file and to file requests for supplementing the investigation

(Anträge auf Ergänzung der Untersuchung). However, no such request was

filed.

On 4 May 1992 the Public Prosecutor's Office (Staatsanwaltschaft)

of the Canton of Graubünden indicted the applicant of having

contravened the Narcotics Act. The bill of indictment noted that the

applicant denied all charges; it further stated that no witnesses or

experts should be called for the trial.

On 7 May 1992 the President of the Cantonal Court (Kantons-

gericht) of the Canton of Graubünden informed the applicant that the

Court did not intend to invite any witnesses to the trial, though the

applicant could do so before 27 May 1992. No such request was filed.

However, the applicant then requested to be exempted from

personally appearing at the trial. He submitted a medical report

according to which he suffered from intestinal ulcers which could at

any time lead to lethal haemorrhages.

Meanwhile, the applicant's lawyer requested consultation of the

case-files concerning C. and H. On 1 June 1992 the Public Prosecutor's

Office transmitted the file concerning H.; it pointed out that the file

concerning C. was still before the Federal Court (Bundesgericht).

On 12 June 1992 the President of the Cantonal Court exempted the

applicant from personally appearing at the trial, though he was

informed that his absence would not mean that he would be tried in

absentia, and that he could not draw any conclusion to his advantage

from the fact that he could not personally be questioned.

The trial took place on 16 June 1992 before the Cantonal Court,

the applicant's lawyer being present, but not the applicant. At the

trial the Public Prosecutor requested adjournment to enable the

applicant to be present. The applicant's lawyer renounced his right

to comment on this issue.

After deliberating the Court dismissed the Public Prosecutor's

request and resumed the trial.

In his submissions before the Cantonal Court the applicant's

lawyer pointed out, inter alia, that when the applicant had been

confronted with C. and H. on 2 October 1990, neither he nor his lawyer

had then had knowledge of the complete case-file concerning the

applicant; they had also not had access to the files of the proceedings

concerning C. and H. Moreover, each confrontation had only lasted five

minutes, and it had been made clear to him that he could only speak

with C. or H. if invited to do so. Contrary to Article 6 para. 3 (c)

of the Convention, he was refused the opportunity to put questions to

concerning C. and H., the adjournment of the trial and the possibility

to question C. and H. in the applicant's presence.

On 16 June 1992 the Cantonal Court convicted the applicant of

various contraventions of the Narcotics Act and sentenced him to

18 months' imprisonment.

In its judgment the Cantonal Court found inter alia that it would

have preferred the applicant to be present at the trial in order to

obtain a direct impression of the accused. However, although the

applicant contested the offences, his personal appearance was not

absolutely necessary (nicht unabdingbar) and the trial could continue,

particularly in view of his medical situation. The Court found that

the applicant had himself requested to be exempted from the trial, and

that the lawyer had raised no further objections at the trial.

The Cantonal Court further regarded as unfounded the applicant's

complaint that he had not been able to put questions to C. and H. The

Court noted that before the confrontations with C. and H. the applicant

had been questioned on various occasions by the police and was aware

of the charges raised against him and of the incriminating statements

made by C. and H. Moreover, at the confrontations on 2 October 1990

the applicant had had the opportunity to put questions, and his lawyer

could have been present, though he had excused himself. After the

investigations were closed, and again on 7 May 1992 the applicant had

been granted the possibility to request further confrontations with C.

and H. However, he had not done so. As he had then on his own free

will renounced his right to do, he could no longer at the trial request

the possibility to question the witnesses.

The Court also dismissed the applicant's request to consult the

case-file concerning C. and for this reason to adjourn the trial. It

regarded this as unnecessary as the same judges on the bench had

already sat in C.'s case; the Court was therefore aware of the case-

file concerned. Moreover, in C.'s case the Cantonal Court had based

itself on the facts established in the bill of indictment.

In respect of the evidence of the case the Court considered that

both C. and H. had clearly identified K. on a photograph as being the

applicant. The confrontations on 2 October 1990 had taken place at a

moment when the various persons could have colluded with one another.

However, the Court noted that C. and H. had never stated that they had

been mistaken about the applicant. For instance, when questioned on

16 October 1990, H. had again clearly confirmed one particular deal

with the applicant.

The applicant then filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht). In respect of the

right to consult the case-files he complained that he had been unable

to consult the case-file of C. The Federal Court dismissed the

applicant's public law appeal on 8 January 1993, the decision being

served on the applicant on 24 September 1993.

The Federal Court first dealt with the applicant's complaint that

he could not consult the case-file concerning C. and could not

therefore establish his credibility. It found that the Cantonal Court

had considered that no relevant elements would transpire from the case-

file and that C.'s statements which incriminated the applicant had also

incriminated C. himself.

In respect of the complaint that the applicant had not been able

to put questions to C. and H., the Federal Court noted, inter alia,

that the applicant had failed to file a request for a further

confrontation within ten days after the investigations were closed.

While a request could still have been filed at the trial itself, the

Federal Court found that the Cantonal Court had been free to reject

such a request if, as in the present case, it had previously been

raised. Finally, the Federal Court found that the Cantonal Court had

not arbitrarily assessed the evidence.

COMPLAINTS

1. The applicant complains under Article 6 paras. 1 and 3 of the

Convention that he could not personally put questions to C. and H.

Thus, on 2 October 1990 his lawyer had not been present, and the

investigating authorities had expressly instructed the applicant only

to answer questions put by them. C. and H. were also not present at

the trial.

2. The applicant further complains under Article 6 paras. 1 and 3

of the Convention of a breach of the equality of arms and of his rights

of defence in that during the entire trial neither he nor his lawyer

had been able to consult the case-files concerning the proceedings

against C. and H. In particular he had not been able to do so before

the confrontations on 2 October 1990, and the Public Prosecutor's

Office had had information at its disposal which he did not have.

Moreover, before the trial the lawyer was only permitted to consult the

case-file concerning the proceedings against H.; that case-file was

furthermore not complete and certain photocopies were partly covered.

The applicant recalls that C. and H. were the only incriminating

witnesses. He submits that, had he been able to consult their case-

files before the confrontations on 2 October 1990, he would have been

able to notice that C. and H. originally contradicted each other in

their statements, and that their incriminating statements resembled

each other more and more during the investigations until they were

almost identical; he would also have been able to notice that C. and

as he was unable to consult the case-file throughout the trial, he was

deprived of the possibility of establishing the credibility of C.

and H.

The applicant also complains that before 2 October 1990 he had

not been able to consult his own case-file.

H. had the possibility to conspire with each other. Moreover, insofar

3. The applicant moreover complains of a breach of the presumption

of innocence contrary to Article 6 para. 2 of the Convention in that

the Swiss authorities did not permit him to examine the credibility of

incriminating witnesses. Thus, he was obliged to prove his innocence.

4. The applicant complains of a breach of his rights of defence

under Article 6 para. 3 (b) of the Convention in that he was not duly

informed in advance of the confrontations with C. and H.; he could not

therefore sufficiently prepare himself.

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

complains that during the investigations he was not duly represented

by a lawyer. Thus, at the confrontations on 2 October 1990 the lawyer

had excused himself. It would have been up to the authorities to

ensure that he was effectively represented, or at least that he could

prepare his own defence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 January 1994 and registered

on 9 March 1994.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

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

The Government's written observations were submitted on

16 February 1996. The applicant replied on 14 May 1996, after an

extension of the time-limit fixed for that purpose.