STÜRM v. SWITZERLAND

THE FACTS

The applicant is a Swiss citizen, born in 1942 and currently

detained in Martigny prison in Switzerland. Before the Commission he

is represented by Ms B. Hug, a lawyer practising in Zürich, and

Mr Th. Burgener, a lawyer practising in Visp.

The applicant's previous Applications Nos. 20231/92, 20545/92,

23117/93 and 23223/94 concerned complaints under Articles 5 and 6 of

the Convention of the length of the applicant's detention on remand;

the delays of the authorities in dealing with his requests for release

from detention; his request for damages; and the length of the criminal

proceedings in which he was involved. The joined applications were

declared admissible on 28 June 1995. In its report of 16 January 1996

the Commission expressed the opinion that there had been violations of

Article 5 para. 3 and Article 6 para. 1 of the Convention; and that

there had been no violations of Article 5 paras. 4 and 5 of the

Convention. In its Interim Resolution of 13 September 1996 the

Committee of Ministers agreed with the Commission's opinion.

The present application concerns complaints under Article 6 of

the Convention about the unfairness of the proceedings in which the

applicant was involved.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

Investigations instituted against the applicant

On 2 November 1984 the investigating judge (Untersuchungsrichter)

of the Ering and Gundis Districts in the Canton of Valais issued a

warrant of arrest against the applicant on suspicion of theft of a car.

The preliminary investigations against the applicant were eventually

extended to over 100 offences, including theft and robbery. In one

such instance the applicant and another person had allegedly broken

into a police station at Haute Nendaz in Switzerland on 22 April 1985

and stolen identity documents, whereby a third person had been injured.

On 31 August 1985 a certain R. was arrested. At one stage, R.

apparently incriminated the applicant as having been an accomplice.

Following R.'s statements, investigations were undertaken in Italy

which proved unsuccessful. Upon another occasion, R. apparently stated

that he had only been with the applicant "on holidays".

On 5 March 1986 the applicant was arrested in Lausanne. On

12 March 1986 the investigating judge of the Ering and Gundis Districts

ordered his detention on remand.

Following his arrest, various newspaper articles on the applicant

were published. An article in the newspaper "La Suisse" of 24 April

1985 referred to the applicant as a suspect ("suspecté"), though it

quoted the Cantonal Police of the Canton of Valais as stating "no

comment" on the case. The "Tribune de Genève" referred on 25 April

1985 to his involvement (impliqué) in certain events. The "Hébdo"

questioned in respect of the events at the police station at Haute

Nendaz whether this had to do with the applicant. "La Suisse" stated

in an article of 6 March 1986 that the applicant had seemingly

committed certain offences ("il aurait emporté quelques 35 000 francs

en tout ..."), though upon instruction of the investigating judge the

police remained silent.

During the ensuing proceedings the applicant refused to express

himself on the charges brought against him. The applicant filed

various requests for release from detention which were dealt with, and

refused, by the Federal Court in decisions dated 9 January and

27 November 1991, 31 July, 1 September and 31 December 1992; and

9 February, 24 August and 21 December 1993.

On 1 March 1990 the applicant was confronted with R.

On 10 September 1992 the investigating judge of the Ering and

Gundis Districts terminated the investigations.

Applicant's Indictment

On 16 September 1992 the Public Prosecutor filed the bill of

indictment. The latter first listed nine categories of offences of

which the applicant was indicted and the respective statutory

provisions of the Penal Code (Strafgesetzbuch) and the Federal Road

Traffic Act (Strassenverkehrsgesetz). Thus, it was stated that the

applicant was indicted of having committed simple bodily injury; theft;

attempted theft; aggravated robbery; damage to property; forging

documents; appropriating another person's car; driving without a

driving licence; and unlawfully using car number-plates.

The bill of indictment then listed on altogether 18 pages the

various occasions where the applicant had committed these offences.

For instance, it was stated in respect of the events at the police

station in Haute Nendaz on 22 April 1985 that the applicant and R.

"pénétrèrent par effraction dans le poste de gendarmerie de la

police cantonale, à Haute-Nendaz. Là, ils dérobèrent divers

documents officiels. Alors que (le requérant) se trouvait à

l'extérieur des locaux, R. fut surpris par A., sergent à la

police cantonale, revenu inopinément au poste. R. l'ayant menacé

avec son pistolet Bernardelli (calibre 7,65), A. se jeta

courageusement sur lui. Les deux hommes tombèrent à terre et R.

tira un premier puis un second coup de feu qui atteint A. au

bras. Le policier lâcha alors son agresseur qui s'enfuit en

menaçant encore de son pistolet O.D. et P.D. qui tentaient de

l'arrêter."

Trial before the Ering and Gundis District Court

On 22 September 1992 the President of the Ering and Gundis

District Court invited the applicant to submit before 15 October 1992

any evidence which he wished to produce at the trial which was

provisionally fixed for 16 and 17 November 1992.

Meanwhile, the applicant was sentenced on 30 November 1992 in

separate criminal proceedings by the Jura Criminal Court to 12 years'

imprisonment, inter alia, on account of robbery and theft.

The trial before the Ering and Gundis District Court took place

on 29 March 1993.

On 31 March 1993 the Ering and Gundis District Court convicted

the applicant for over 100 offences, inter alia, robbery, theft and

damage to property, and sentenced him to 13 years' imprisonment. The

judgment, mentioning 23 private parties, numbered 98 pages.

In its judgment the District Court dismissed the applicant's

complaint that the bill of indictment was incomplete. Insofar as the

applicant questioned the reliability of R.'s statements, the Court

referred to a psychiatric opinion which concluded that at the relevant

time R. had been "completely normal" (völlig normal). When dealing

with the various offences at issue, the Court relied, inter alia, on

the statements of R. and of other witnesses, on handwritten documents

in the applicant's handwriting, on finger-prints and shoe-marks, and

on the typical manner ("modus operandi") in which various offences had

been committed.

In its judgment the District Court mentioned various instances

of robbery which the applicant had committed, inter alia, at the police

station at Haute Nendaz. In this respect, the Court considered that

the applicant had committed the offence jointly with R.; that he had

accepted at least as a possibility that R. would use a pistol

(Eventualvorsatz); that he was therefore responsible for the whole act;

and that the victim, A. had been injured as a result of the shot.

In view of the conviction by the Jura Criminal Court which had

then not yet entered into legal force, the District Court pronounced

the sentence subject to Section 350 of the Penal Code. According to

this provision, if a person is convicted of different offences by

different courts, the court which has pronounced the most severe

punishment shall determine the entire punishment.

Appeal proceedings before the Cantonal Court of the Canton of Valais

The applicant appealed against this judgment to the Cantonal

Court of the Canton of Valais, complaining, inter alia, that the bill

of indictment had been insufficiently motivated, that there had been

various procedural errors in the taking of evidence, and that the court

had relied on R.'s statements although the latter had stated, at the

outset that he had not committed any offences together with the

applicant, and that he had "only been on holidays with him". The

applicant also requested the hearing of various witnesses. The Court

of Appeal had full powers to decide on all aspects of the case.

The appeal hearing before that Cantonal Court took place on

30 May and 1 June 1994.

On 1 June 1994 the Cantonal Court pronounced its judgment. It

partly upheld the applicant's appeal in that he was acquitted of

certain offences, inter alia, of damage to property. On the other

hand, the Court convicted him of altogether 95 offences. The Court

considered, for instance, that the applicant had committed robbery when

obtaining official documents, among them identity documents, from the

police station at Haute Nendaz, and thereby injuring a third person.

As a result, the applicant was sentenced to ten and a half years'

imprisonment.

In its judgment the Court dismissed the applicant's request to

hear R., as the latter had already been heard during the investigations

and at the trial before the District Court. Moreover, R. and the

applicant had been confronted with one another. Thus, the applicant

had had the possibility of putting questions to R., but had failed to

do so. In respect of the allegedly insufficient bill of indictment,

the Court found that after pronouncement of the judgment of the

District Court the applicant no longer claimed that he was unaware of

the various charges. The Court also assessed the value of the evidence

taken and the incriminating statements made.

Proceedings before the Federal Court

On 7 September 1994 the applicant filed a public law appeal

(staatsrechtliche Beschwerde, recours en droit public) with the Federal

Court (Bundesgericht) in which he complained, inter alia, of a breach

of his right to a fair hearing, of the arbitrary application of

cantonal law, and of the arbitrary appreciation of evidence. He also

requested his release from detention on remand. The applicant

furthermore filed a plea of nullity (Nichtigkeitsbeschwerde, pourvoi

en nullité) in which he complained of the incorrect legal qualification

of the various offences, and of the sentence.

On 17 November 1994 the Federal Court dismissed the public law

appeal. On the same day, it also dismissed the applicant's plea of

nullity. Both judgments were served on one lawyer of the applicant on

20 December 1994; the other lawyer received them on 21 December 1994.

In its detailed judgment on the applicant's public law appeal,

numbering 33 pages, the Federal Court noted at the outset that the

applicant had been able to consult the various police files. Insofar

as the applicant complained that the investigating authorities might

have breached their duty of confidentiality by disclosing information

to the press, the Court found that these issues fell to be examined in

disciplinary proceedings, but had manifestly not influenced the outcome

of the criminal proceedings instituted against the applicant. The

Court also considered that no procedural rules had been breached during

the investigations and in particular in the establishment of the

various police reports and in the hearing of the various witnesses.

The Court then dealt with the applicant's complaint of a breach

of the presumption of innocence guaranteed by Article 6 para. 2 of the

Convention in that the investigating authorities had disclosed

information on the proceedings to the press. The Court found that the

investigating authorities had a duty to inform the public as to

suspicions against certain persons. Insofar as the applicant

complained that the courts based themselves on a particular manner

("modus operandi") in which he had committed various offences, the

Court considered that this information stemmed from R., and that the

applicant had not been convicted solely on the basis of this

information.

In respect of the allegedly incomplete bill of indictment, the

Federal Court found that this complaint was inadmissible as not

complying with the statutory requirements for filing such a complaint.

In any event, the bill of indictment need not separately state the

legal qualification of every offence mentioned. The Court also

considered that the applicant had had sufficient opportunity both

before the District Court and the Cantonal Court of Appeal to request

the taking of evidence, and that the assessment of the evidence

concerned had not been arbitrary. Insofar as the applicant complained

that two witnesses Mas. and Maz. had only been shown photos of himself

and not of other persons, the Court found that the statements of these

witnesses were not the only elements leading to the applicant's

conviction in respect of the particular offence concerned.

In its judgment on the applicant's plea of nullity, the Federal

Court found, inter alia, that when the applicant had broken into the

police station at Haute Nendaz, he had obtained identity documents

which were not without value; in particular, such documents could be

sold in criminal circles. Even if the applicant intended to keep

thedocuments for himself, he had had the requisite intention to enrich

himself, as he was relieved from purchasing such documents among

criminal circles.

The applicant's request for the reopening of the Federal Court

proceedings was dismissed by the Federal Court on 7 March 1995.

Insofar as the applicant complained that the documents obtained at the

police station at Haute Nendaz had not been identity papers, the Court

found that the applicant had failed to complain thereof in his public

law appeal before the Federal Court. Moreover, the applicant could not

seriously claim that he had broken into the police station without

having had the intention of enriching himself.

COMPLAINTS

The applicant raises various complaints under Article 6 of the

Convention.

1. The applicant complains under Article 6 para. 1 of the Convention

about the incomplete state of the case-file prepared in the various

court proceedings.

a) The applicant complains that he was convicted on the basis of his

finger-prints and shoe-marks. No confirmation of such prints could be

found in the case-file. They were only mentioned in the police-files.

For instance, a police report stated that certain finger-prints

belonged to the applicant. However, neither the object and manner of

the investigation nor the technical means which the police employed

transpired from the reports. The investigations should nevertheless

be conducted by the investigating judge rather than the police. The

various courts did not regard it necessary to question the police.

b) The applicant further complains that the case-file gives no

explanation as to the graphological expert opinion which was prepared

on the applicant's handwriting. In particular, there was no statement

as to which handwriting served as a comparison. It was not up to him

to request preparation of a further expert opinion.

c) The applicant also complains that during the investigations

various persons claimed to have recognised the applicant on the basis

of photos. Reference is made in particular to the witnesses Mas. and

Maz. However, the applicant claims that it does not transpire from the

case-file that photos other than those of the applicant were shown to

these persons. It is also unclear, how the authorities proceeded when

asking the various persons to identify the applicant.

2. The applicant raises various complaints under Article 6 paras. 1

and 3 (d) of the Convention about the various police reports,

containing information on finger-prints and shoe-marks, on the

graphological expert opinion, and on statements of third persons.

a) He submits that this information should not have been employed

by the various courts as evidence. In fact, it should have been

discussed before court in the presence of the applicant. It does not

suffice that, as the Federal Court stated, the applicant was free to

prove the contrary. It is up to the authorities to prove that the

applicant is guilty.

b) The applicant complains that he could only insufficiently put

questions to the expert and the third persons who testified in his

case. Moreover, it was up to the authorities, not to him, to invite

the relevant persons to appear before court.

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

of the Convention about the insufficient reasons given in the various

judgments.

a) The applicant complains that the judgment of the Cantonal Court

of Appeal of 1 June 1994 stated that the applicant had committed the

offence of robbery at the police station of Haute Nendaz. In this

respect, it would have been essential to demonstrate that the applicant

had intended to enrich himself. However, the judgment only states that

the applicant had "dérobé divers documents officiels". It did not

state precisely how the applicant should have obtained a pecuniary

advantage (Vermögensvorteil). The Federal Court's decision of 7 March

1995 was insufficient when it stated that the applicant could not

seriously claim that he had entered the particular building without

having had the purpose of enriching himself.

b) The applicant points out that the investigating judge divulged

confidential information to the press. The Federal Court, while

accepting that there had been a breach of confidentiality, found that

the latter did not affect the criminal proceedings against the

applicant; rather, that breach should be pursued in separate

disciplinary proceedings. The applicant complains that the Federal

Court did not explain why the breach of confidentiality did not

influence the outcome of his proceedings.

4. The applicant raises various complaints under Article 6 para. 2

of the Convention of a breach of the presumption of innocence.

a) The applicant submits that, after the warrant of arrest was

issued, a newspaper article stated that the applicant had been present

when persons had broken into the police station at Haute Nendaz.

b) The applicant complains of a report of a meeting of Swiss police

of 30 March 1985 which referred to the "modus operandi" of the

applicant. However, it is unclear how such a conclusion could have

been reached, particularly as the applicant had at that stage only been

convicted by a Zürich court in 1972.

c) The applicant complains that after his arrest various newspaper

articles were published in which attention was drawn to the applicant's

activities. This confirmed that from the outset the investigating

judge in fact regarded the applicant as being guilty. The courts also

took over the views expressed by the police, the press and the

investigating judge.

5. The applicant complains under Article 6 paras. 1 and 3 (b) of the

Convention that the bill of indictment mentioned the facts concerning

the applicant, but did not legally qualify them (juristische

Qualifikation). The bill of indictment merely mentioned altogether

nine provisions of the Criminal Code. It was not stated, however,

which fact fell under which provision of the Criminal Code. For

instance, the applicant was unaware of the legal qualification of the

act of breaking in at the police station at Haute Nendaz.

6. Under Article 6 para. 3 (b) the applicant complains that he was

not able personally to consult the case-file. It was insufficient if

only his lawyers could do so, as he was actively involved in his own

defence.

7. The applicant raises various complaints under Article 6 paras. 1,

2 and 3 of the Convention of the manner in which evidence was assessed.

a) He complains that the domestic authorities convicted him too

easily (unkritisch) on the basis of his "modus operandi", i.e. the

typical manner in which he had allegedly committed certain offences.

b) He further complains that one person was incorrectly heard as a

"witness", as he had been heard during proceedings concerning himself.

The applicant had not been confronted with this person.

c) The applicant complains of the Federal Court's statement

according to which R. had incriminated the applicant. However, this

was incorrect. Thus, when questioned whether he, R., had committed

offences with the applicant, R. had replied: "I was with him on

holidays."

d) The applicant points out that the expert graphologist employed

in these proceedings was a police officer of the Canton of Valais. He

could not be considered neutral, and his opinion should not have been

considered as evidence.

e) The applicant also complains that the courts did not consider any

mitigating evidence.

f) The applicant complains that the domestic courts always spoke of

"witnesses" and "statements of witnesses". However, this technically

incorrect, none of the persons having been properly heard as witnesses.