A.B. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 31815/96
by A. B.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
S. TRECHSEL
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 April 1996 by
A. B. against Switzerland and registered on 11 June 1996 under file
No. 31815/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The applicant, a Ghanaian citizen born in 1953, is a labourer
residing in Accra in Ghana. Before the Commission he is represented
by Mr E. Schönenberger, a lawyer practising in Rümlang in
Switzerland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 11 December 1988 the applicant was remanded in custody on
suspicion of having committed narcotics offences. As a result, the
Zürich District Attorney's Office (Bezirksanwaltschaft) filed a bill
of indictment against the applicant with the Zürich District Court
(Bezirksgericht).
On 2 December 1990 the Court of Cassation (Kassationsgericht) of
the Canton of Zürich found that the imposition of detention on remand
on the applicant breached Article 5 para. 3 of the Convention in the
light of the Convention organs' case-law as to the role of the District
Attorney in the Canton of Zürich (see Eur. Court HR, Jutta Huber
v. Switzerland judgment of 23 October 1990, Series A no. 188).
On 17 December 1990 the applicant unsuccessfully filed a request
for compensation of 13,000 Swiss Francs (CHF) with the Government
(Regierungsrat) of the Canton of Zürich.
On 30 September 1992 the applicant filed an action with the
Zürich District Court, arguing that the Government had breached
Article 5 para. 5 of the Convention and claiming compensation of
13,000 CHF.
The applicant also filed a request for exemption from court fees
and for legal aid (unentgeltliche Prozessführung und Rechtsvertretung).
However, in view of appeal proceedings pending in the parallel case of
A.R., the applicant filed a request for the adjournment of the
proceedings which was granted on 6 November 1992.
After the Federal Court gave its decision in the separate
proceedings on 2 February 1993, proceedings concerning the applicant
were resumed before the District Court.
On 25 May 1993 the District Court rejected the applicant's action
for compensation as being insufficiently substantiated and withdrew his
entitlement to legal aid.
The applicant's appeal was dismissed by the Court of Appeal on
26 April 1994. However, his plea of nullity was upheld by the Court
of Cassation on 26 July 1994.
Proceedings were resumed before the District Court which on
19 December 1994 dismissed the applicant's action. It considered that
the applicant would have been remanded in custody even if detention had
been imposed in accordance with Article 5 para. 3 of the Convention.
The Court found that the applicant had not sufficiently demonstrated
immaterial damage, and that the determination of a breach of Article 5
para. 3 of the Convention sufficed as satisfaction within the meaning
of Article 5 para. 5 of the Convention. Upon the applicant's
appeal, the Court of Appeal on 10 April 1995 dismissed his request for
legal aid and imposed advance legal costs on the applicant. The latter
failed to pay the amount whereupon the appeal was rejected on 8 June
1995.
The applicant's plea of nullity was dismissed by the Court of
Cassation on 6 September 1995.
On 14 September 1995 the applicant filed a public law appeal
which the Federal Court dismissed on 24 January 1996.
In its decision the Federal Court upheld the views of the
previous courts insofar as they had declared the applicant's complaints
inadmissible under Article 5 para. 5 of the Convention. The Federal
Court nevertheless found that the complaint would in any event also be
unfounded.
Thus, while it was undisputed that the applicant had been
remanded in custody in breach of Article 5 para. 3 of the Convention,
this breach had already been formally determined. Both the District
Court and the Court of Appeal had found that this sufficed as
satisfaction within the meaning of Article 5 para. 5 of the Convention.
The applicant had not shown why the mere determination of unlawfulness
did not suffice in his case.
The Federal Court further found that the previous courts had not
breached Article 13 of the Convention when rejecting the applicant's
appeals on procedural grounds.
The Federal Court then dealt with the applicant's complaint under
Article 6 para. 1 of the Convention about the undue length of the
proceedings. The decision stated:
<Translation>
"When examining the length of the proceedings, it can be assumed
that the matter was not particularly complex and not of
particular importance for the applicant. The latter employed,
in an admissible manner, remedies at his disposal during the
various phases of the proceedings. This brought about a delay
for which the authorities cannot be made responsible. The
judicial proceedings were suspended upon the applicant's request
for a period of about three months. He did not institute the
judicial proceedings immediately after the negative decision of
the Government of the Canton of Zürich. The procedural conduct
of the applicant amounts to an aggravating circumstance. He
contributed to the delays in the substantial examination of the
case by filing insufficiently substantiated statements in respect
of purely procedural decisions. On the whole, the length of
proceedings of four years until the first substantial decision
of the District Court cannot be regarded as exceeding the time-
limit envisaged in Article 6 para. 1 of the Convention. The
appeal is therefore also in this respect unfounded ..."
COMPLAINTS
1. The applicant complains under Article 5 para. 5 of the Convention
that his claim for compensation for unlawful detention on remand was
dismissed by the Swiss courts.
2. Under Article 6 para. 1 of the Convention the applicant complains
of the undue length of the proceedings. Four years elapsed until the
District Court decided a simple claim.
3. Under Article 13 of the Convention the applicant complains that
the courts did not freely examine his complaint of a breach of human
rights. In his view, the rights of Article 13 override all domestic
procedural requirements.
Considerations
THE LAW
1. The applicant complains under Article 5 para. 5 (Art. 5-5) of the
Convention that his claim for compensation for unlawful detention on
remand was dismissed by the Swiss courts.
Article 5 para. 5 (Art. 5-5) of the Convention states:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Commission recalls the Convention organs' case-law according
to which Article 5 para. 5 (Art. 5-5) of the Convention is complied
with where it is possible to apply for compensation in respect of a
deprivation of liberty effected in conditions contrary to paragraphs
1-4. It does not prohibit the Contracting States from making the award
of compensation dependent upon the ability of the person concerned to
show damage resulting from the breach. Thus, no issue as to
compensation will arise where there is no pecuniary or non-pecuniary
damage to compensate (see Eur. Court HR, Wassink v. the Netherlands
judgment of 27 September 1990, Series A no. 185-A, p. 14, para. 38).
In the present case, detention on remand was imposed on the
applicant in respect of which the Swiss authorities later considered
that it breached Article 5 para. 3 (Art. 5-3) of the Convention.
It is true that the applicant then unsuccessfully requested
compensation amounting to 13,000 CHF.
However, in the Commission's opinion it does not appear
unreasonable if the various courts refused the applicant's request as
the determination of the unlawfulness of his detention sufficed as
satisfaction within the meaning of Article 5 para. 5 (Art. 5-5) of the
Convention; and as the applicant had not sufficiently demonstrated any
damages he had suffered.
Moreover, the applicant has failed also before the Commission to
give any indication as to the nature and amount of the material or
immaterial damages incurred.
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.
2. Under Article 6 para. 1 (Art. 6-1) of the Convention the
applicant complains of the undue length of the proceedings.
Article 6 para. 1 (Art. 6-1) of the Convention states, insofar
as relevant:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time
..."
In the present case, the applicant filed his action with the
Zürich District Court on 30 September 1992. The Federal Court in last
resort dismissed his public law appeal on 24 January 1996.
The proceedings to be examined under Article 6 para. 1 (Art. 6-1)
of the Convention therefore lasted three years, three months and 25
days.
The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and having regard in particular to the
complexity of the case, the conduct of the applicant and of the
relevant authorities, and what was at stake for the applicant (see Eur.
Court HR, Duclos v. France judgment of 17 December 1996, Reports of
Judgments and Decisions 1996-VI, p. 2180 et seq., paras. 55 and 77).
The Commission has applied these criteria to the present case.
It considers at the outset that the proceedings, concerning
compensation for unlawful detention on remand, could not be regarded
as being complex.
Moreover, the applicant did not unduly contribute to the length
of the proceedings.
As regards the conduct of the authorities, the Commission
considers that, after the decision of the Federal Court of 2 February
1993, the District Court gave its decision on 25 May 1993. This
decision was upheld by the Court of Appeal on 26 April 1994, i.e.
within less than a year, though it was quashed by the Court of
Cassation on 26 July 1994.
The District Court again gave its decision on 19 December 1994.
Thereafter, the proceedings were again conducted speedily. Thus, the
Court of Appeal gave its decision on 8 June 1995, the Court of
Cassation on 6 September 1995, and the Federal Court on 24 January
1996.
Finally, it cannot be said that the outcome of these proceedings
was of particular importance for the applicant within the meaning of
the Convention organs' case-law (see Eur. Court HR, Duclos v. France
judgment, loc. cit., p. 2186, para. 77).
Making an overall assessment of the proceedings, the Commission
finds that there is no indication of any periods of delay attributable
to the authorities which would exceed the requirement of a "reasonable
time" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Under Article 13 (Art. 13) of the Convention the applicant
complains that the courts did not freely examine his complaint of a
breach of human rights.
Article 13 (Art. 13) of the Convention states:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (see Eur. Court HR, Powell and Rayner v. United Kingdom
judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).
In the present case, the Commission has just found that the
complaints under Article 5 para. 5 and Article 6 para. 1
(Art. 5-5, 6-1) of the Convention are manifestly ill-founded. The
Commission finds that the applicant's submissions in this respect do
not raise any prima facie issue under the Convention. As a result, no
arguable claim can be maintained in respect of a violation of these
provisions.
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.
Order
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber