S.E.K. v. SWITZERLAND

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, a citizen of the United States born in 1945 and

residing since 1972 in Zurich, is a certified public accountant and tax

consultant (Bücherexperte und Steuerberater) by profession. Before the

Commission he is represented by Mrs. V. Delnon, a lawyer practising in

Zurich.

In 1982 M.P., a Mexican citizen, entrusted the applicant with the

establishment and administration of a trust in Liechtenstein and

transferred for this purpose a sum of 6 million US-Dollars to

Switzerland. This trust, the S. Trust, was established by the

applicant on 20 September 1982 and an account for the S. Trust opened

at the J.B. bank.

In February 1985 M.P.'s lawyer requested that information

(Strafanzeige) be laid against the applicant, accusing him of having

embezzled money entrusted to him for the use of the S. Trust.

On 18 and 25 April 1985 the applicant was questioned by the

Zurich Cantonal Police (Kantonspolizei). According to the transcripts

of the interrogation of 18 April 1985 the applicant stated that on his

proposal R.P., a real estate agent residing in the United States with

whom the applicant was doing business, had contacted M.P. and presented

to him a real estate development project on the Bahama Islands. The

applicant stated further that R.P., after having presented the project

to M.P., had informed the applicant that M.P. did like the project but

had not formally given his consent to an investment into the project.

On 9 May 1985 the President of the Zurich District Court

(Bezirksgericht) appointed an ex officio defence counsel for the

applicant.

On 9 May 1985, 14 October 1985 and on 15 October 1985, the

applicant was further questioned by the Cantonal Police regarding

details of the Bahamas development project and his financial

transactions in this context. In these interrogations the applicant

was not assisted by his defence counsel nor was an interpreter present.

On 24 May 1985 the applicant requested the District Attorney to

hear three witnesses, inter alia the real estate agent R.P.

On 26 November 1986 the applicant, in the presence of his defence

counsel, was heard by the Zurich District Attorney (Bezirksanwalt) on

the charges against him. According to the transcript of the

interrogation the applicant, inter alia, stated that M.P. had wanted

to go ahead with the real estate development project, that he had not

got the consent to the project directly from M.P. and that he had

thought that M.P. had been informed about the investment by R.P.,

though not directly by the applicant.

On 17 June 1987 the Zurich Public Prosecutor's Office preferred

a bill of indictment on the applicant accusing him of having embezzled

funds of the S. Trust and having invested them into a real estate

development project on the Bahama Islands.

On 9 September 1987 the indictment Chamber (Anklagekammer) of the

Zurich Court of Appeal (Obergericht) allowed the indictment and decided

that the trial against the applicant be held before the Court of Appeal

sitting as court of first instance.

On 20 April 1988 the applicant requested the Court of Appeal to

hear R.P. as witness for the defence in the trial.

On 27 April 1988 the first hearing before the Court of Appeal

took place. In the course of the hearing the applicant's lawyer

requested the Court of Appeal to hear R.P. as witness. During the

trial an interpreter was present.

On 17 May 1988 the Court of Appeal adjourned the trial for taking

further evidence, i.e. to request from the J.B. bank all the documents

concerning the S. Trust and to hear M.P. and G.L., a former employee

of the applicant, as witnesses. On 18 November 1988 these witnesses

were heard by one of the judges sitting in the applicant's trial at the

Court of Appeal in the presence of the applicant's lawyer.

On 8 March 1989 a further hearing before the Court of Appeal took

place and again the applicant's lawyer requested the Court to hear R.P.

as witness.

On the same day the applicant was convicted for embezzlement and

sentenced to 21 months of imprisonment.

The Court of Appeal found that on 29 September 1983, at a time

when the applicant had been under financial strain, he had taken a loan

from the J.B. Bank and pledged the funds of the S. Trust as security.

The applicant used the money for the purchase of land on the Bahamas

by a firm owned by him. As the applicant could not pay back the loan,

the J.B. bank eventually seized the security given and after

October 1984, refused to give any more loans.

The Court of Appeal noted that the applicant did not contest the

essential facts of the charge laid against him but denied that he had

made the investment without M.P.'s consent. The applicant had changed

his version of the events in the course of the proceedings. Initially,

at the time of the police investigations, the applicant had maintained

that he had acted in the interest of M.P., who did like the project,

although without the latter's formal consent. Then, a week before the

trial, in his request for further evidence, the applicant maintained

that R.P. actually had been given the order to invest in the Bahama

project by M.P. According to the applicant this change was due to the

fact that he had no sufficient command of German and therefore the

statements as recorded in the transcript of the police interrogations

were not correct. The Court of Appeal, however, found that the

applicant did sufficiently understand German as he had made his

statements in the trial in German.

Furthermore, the Court of Appeal considered that the version of

the events as presented by the applicant in the police interrogations

was corroborated by further evidence, namely entries into his business

diary, a note concerning the investment in the Bahamas development

project written by the applicant in 1985 and backdated to

29 September 1983, the facts that he did not inform M.P. of the

investment although he met him on 28 September 1983 and that the

applicant, rather than using the accounts of the Trust in the first

place, took a loan and gave the Trust's accounts as security and that

account sheets of the J.B. bank were withheld from M.P.

The Court of Appeal noted further that M.P. had stated in the

proceedings that he had not been informed about the investment and the

use of the funds of the Trust. According to the Court of Appeal, M.P.

was not a wholly credible witness, but after scrutiny of his statements

it could follow his version of the events.

The Court of Appeal also dismissed the applicant's request for

hearing R.P. as witness. The Court of Appeal found that the hearing

of this witness was not necessary as he would either confirm the

version of the applicant as presented in the police interrogations,

which would not ameliorate the applicants's situation or he would state

that M.P. did give his consent to the investment. This, however, would

be a completely implausible statement, made for the purpose to protect

the applicant and also R.P. himself, as he also had received money out

of the investment made with the Trust's funds.

On 1 October 1990 the Zurich Court of Cassation (Kassations-

gericht) dismissed the applicants plea of nullity (Nichtigkeits-

beschwerde). The Court of Cassation found that an anticipated

assessment of evidence was admissible in cases where, even if the

envisaged proof would be produced, this proof would not influence the

result of the evidence. Therefore, the Court of Appeal correctly

refused to hear R.P. as witness.

The Court of Cassation held further that the applicant's

statements before the police should be used in the proceedings before

the Court of Appeal. The use of these transcripts was in accordance

with cantonal procedural law as the applicant had the possibility to

express his view on important issues which arose during the police

enquiries when he was heard by the District Attorney. Furthermore, the

applicant was heard at length during the trial. There he was also

confronted with his statements before the police. As regards the

applicant's argument that his command of German was insufficient and

therefore his statements before the police were wrongly recorded, the

Court of Cassation found that the Court of Appeal had dealt

sufficiently with this issue and the applicant had not given any

convincing arguments against the Court of Appeal's findings. Moreover,

there were no indications that the transcripts of his interrogations

by the police were incorrect.

On 21 November 1990 the applicant introduced a public law appeal

(staatsrechtliche Beschwerde) to the Federal Court (Bundesgericht).

He submitted in particular that his request for hearing R.P. as witness

was refused by the Court of Appeal with arguments of anticipated

assessment of the evidence. He further submitted that the Court of

Appeal in refusing his request for hearing R.P. as witness had simply

relied on the transcripts of the applicant's interrogation by the

police though these transcripts should not have been used in the trial.

Moreover, these transcripts were incorrect as the applicant, who was

not assisted by an interpreter or by a defence counsel during the

police interrogations, he had no possibility of noting that his

statements concerning R.P. were omitted by the police.

On 7 March 1991 the Cassation Chamber (Kassationshof) of the

Federal Court dismissed the applicant's public law appeal.

The Federal Court held that the Court of Cassation had given

sufficient reasons why it was not necessary to hear R.P. as a witness

in the proceedings. In his appeal the applicant had not shown why the

Cassation Court's arguments were wrong, therefore the Federal Court

could not deal with this complaint. As regards the applicant's

complaint that the transcripts of his interrogation by the police

should not have been used in the proceedings, the Federal Court held

that the applicant had not shown that the findings of the Cassation

Court were unreasonable. Furthermore, also as regards the applicant's

argument that the transcripts of his interrogations by the police were

incomplete as they did not contain a reference to R.P. as witness for

the defence, the applicant had not shown that the Court of Cassation's

arguments were wrong.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 and 3 (c) and (e)

of the Convention about his conviction and in particular that the

transcripts of his questioning by the police in the course of the

preliminary investigations were used in the trial although he was

questioned in the absence of a defence counsel. His defence counsel

was not allowed to participate in his interrogation by the police and

could only participate on two occasions at the hearing of witnesses by

the District Attorney.

He also submits that he had been questioned by the police in the

absence of an interpreter although his command of German was not

sufficient. As a consequence, the transcripts of his questioning were

not correct. At the trial before the Court of Appeal in 1988 and 1989,

the presence of an interpreter proved that the Court of Appeal was

convinced that his command of German was not sufficient.

2. The applicant complains further under Article 6 para. 1 and 3 (d)

of the Convention that the Court of Appeal refused to hear R.P. as

witness for the defence, relying on considerations which amounted to

an anticipated assessment of evidence.

3. Lastly, he complains under Article 6 para. 2 of the Convention

that he had not been proved guilty according to law. He submits that

his statements before the police had been used in the trial in

violation of domestic procedural law.