CASE OF THOMANN v. SWITZERLAND

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 12 April 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 17602/91) lodged with the Commission under Article 25

(art. 25) by a Swiss national, Mr Martin Thomann, on 5 December 1990.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Switzerland

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 6 para. 1 of the Convention

(art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of

the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr C. Russo,

Mr J. De Meyer, Mr M.A. Lopes Rocha, Mr J. Makarczyk and Mr P. Jambrek

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Swiss

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,

the Registrar received the Government's and the applicant's memorials

on 2 November 1995. On 24 November 1995 and 4 January 1996 the

Commission produced various documents, as requested by the Registrar

on the President's instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 January 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Boillat, Head of the European Law

and International Affairs Section,

Federal Office of Justice, Agent,

Mr F. Schürmann, European Law and

International Affairs Section,

Federal Office of Justice, Adviser;

(b) for the Commission

Mr M.P. Pellonpää, Delegate;

(c) for the applicant

Ms B. Pauen, avocate, Counsel.

The Court heard addresses by Mr Pellonpää, Ms Pauen and

Mr Boillat.

AS TO THE FACTS — I. Particular circumstances of the case

6. Mr Martin Thomann, a Swiss national who was born in 1949, lives

in Zurich.

A. The in absentia proceedings

7. On 13 December 1988 the prosecutor's office of the Canton of

Basel-Stadt brought a prosecution (Anklageerhebung) against the

applicant on charges of aggravated fraud and attempted aggravated

fraud, having had previous convictions for the same offence

(wiederholter und fortgesetzter vollendeter und versuchter, teils

gewerbsmässiger Betrug), negligent bankruptcy (leichtsinniger Konkurs)

and failure to keep accounts (Unterlassung der Buchführung).

8. The cantonal Criminal Court (Strafgericht) set down the case

for trial from 10 to 17 May 1989. However, it was not possible to

serve the summons to appear (Vorladung zur Verhandlung) on the

applicant, because he had quit his home without leaving an address.

An arrest warrant was accordingly issued, indicating that the trial

could take place at any time, even if the applicant was not present.

9. The court, composed of Judges Metzener, Becht-Gutmann and

Memminger, sat from 10 to 17 May 1989 in the applicant's absence. He

was arrested on 16 May 1989 and on 17 May attended court for the

delivery of the judgment, whereby he was sentenced to two and a half

years' imprisonment and fined five hundred Swiss francs for fraud and

attempted fraud both in the exercise of an occupation (gewerbsmässiger

Betrug), negligent bankruptcy and failure to keep accounts.

B. The application for a retrial

10. The applicant immediately sought a retrial (see paragraph 24

below). The Criminal Court allowed his request and decided accordingly

not to provide a written statement of reasons for its judgment given

in absentia (Kontumazurteil). It then commenced proceedings under the

ordinary procedure and set down a new trial for 30 October 1989.

11. On discovering that the composition of the Criminal Court would

be identical to that of the court that had convicted him in absentia,

on 29 June 1989 Mr Thomann lodged an application (Ausstandsbegehren

wegen Befangenheit) challenging its three members. On 22 August the

challenge was dismissed by the same three judges.

On an appeal (Beschwerde) by the applicant, the Court of Appeal

(Apellationsgericht) of the canton set aside that decision on

5 October 1989 and directed that the Criminal Court rule on the

applicant's challenge without the judges concerned being present. The

court, composed of Judges Kunz, Stephenson and Stamm, dismissed the

challenge on 25 October.

12. Relying on Article 58 of the Federal Constitution and Article 6

para. 1 of the Convention (art. 6-1), the applicant lodged a new appeal

(Beschwerde) with the cantonal Court of Appeal, which dismissed it on

14 November 1989.

The Court of Appeal took the view that the decision to allow

a retrial under Article 267 para. 2 of the Code of Criminal Procedure

(see paragraph 24 below) was not an avenue of appeal in the strict

sense, but a decision to rehear the case (Restitution), whose sole

effect was to set aside a judgment given in absentia and to open a

trial under the ordinary procedure (gewöhnliches Verfahren), which

would result in a new judgment replacing the earlier one. In the

absence of statutory provisions on that point, the practice was for the

judge who had given the first judgment to hear the application for a

retrial and to sit in the new trial under the ordinary procedure. The

explanation of this practice was that the retrial did not entail the

exercise of functions that were different from those exercised by the

first judge or any criticism of his decision. Its sole purpose was to

supplement the facts on which the first judgment had been based. In

those circumstances, it could hardly be contended that there was a risk

of a lack of impartiality on the part of such a judge when he retried

the case.

The Court of Appeal considered in addition that judges giving

judgment in absentia were perfectly well aware that their decisions

were open to an application for a retrial. In the case in question the

judgment appealed had been given by a panel of three judges - a

circumstance which in itself reduced the risk of breaches of the duty

of impartiality - who had, moreover, agreed to set aside their own

decision, thus showing their opinion that Mr Thomann should not suffer

as a result of his absence from the first trial.

13. On 2 May 1990 the Federal Court dismissed the applicant's

public-law appeal (staatsrechtliche Beschwerde).

The Federal Court referred to its relevant case-law and

observed, inter alia, that the members of a panel of three judges did

not lose their impartiality merely because they had already given

judgment in absentia in the same case, provided that the outcome of the

case appeared to remain open and did not give the impression of being

predetermined (Anschein der Vorbestimmtheit). To establish whether

this was in fact the case, it was necessary to have regard to the

factual and the procedural circumstances of the two trials.

Given the importance of the presence of the defendant in person

before a criminal court, it could never be ruled out that a case heard

in the absence of the accused might have reached a different conclusion

if he had been present at the trial. Thus the cantonal Codes of

Criminal Procedure which allowed trial in absentia all empowered a

person convicted in such proceedings to seek the reopening of the trial

under the ordinary procedure. In contrast to an appeal, the purpose

of this remedy was not to conduct a review (Überprüfung) of the first

judgment. It took the case back to the trial stage so that it could

be entirely reheard at a new trial resulting in a new judgment.

Admittedly the judges had to deal with the same issues, namely

the accused's guilt and the appropriate sentence. However, as the

ordinary procedure made it possible to carry out certain steps, such

as examination and cross-examination, which the accused's absence had

precluded, the case was wholly reconsidered. Its outcome was therefore

open, as the court might very well arrive at a different conclusion

from its earlier decision. The contrary view expressed by Mr Thomann

on this point was based solely on his subjective impressions which,

according to the case-law, could not be taken into account. The

decisions that he invoked were irrelevant because they concerned an

issue unrelated to the case before the court, namely the concurrent

exercise of different functions, in particular that of trial judge and

investigating judge.

Moreover, acceptance of the applicant's argument would invite

abuse because in the cantons where an application for a retrial was not

subject to objective conditions, it would be sufficient for an accused

to fail to appear for trial where he wished to have a judge of whom he

did not approve removed. He would therefore be placed at an advantage

in relation to an accused who did appear. It would also cause delays

in the proceedings, which would be aggravated by the fact that on each

occasion new judges would have to study the case.

C. The retrial under the ordinary procedure

14. The retrial took place from 26 September to 3 October 1990 in

Basel-Stadt Criminal Court, composed of Judges Metzener, Becht-Gutmann

and Memminger; the court took evidence from the applicant, who was

assisted by an officially appointed lawyer, and from several witnesses.

On 3 October Mr Thomann was sentenced to two years and three months'

imprisonment and fined five hundred Swiss francs for fraud and

attempted fraud in the exercise of an occupation, negligent bankruptcy

and failure to keep accounts.

15. On 11 July 1991 the cantonal Court of Appeal acquitted

Mr Thomann on certain counts relating to the fraud charge and reduced

his prison sentence to two years' imprisonment.

On 9 December 1992 the Federal Court dismissed the applicant's

public-law appeal against that judgment.

II. The relevant cantonal law — A. Ordinary procedure

16. An accused who appears for trial is first questioned as to his

personal circumstances and then allowed to make a short statement on

the indictment. The President of the Court then examines him in detail

on the charges brought against him (Article 178 of the Basel-Stadt Code

of Criminal Procedure (Strafprozessordnung)).

17. The accused may be confronted with witnesses (Article 179) and

call other witnesses (Article 181). After the prosecuting authority

has made its submissions and any victim that may be participating in

the proceedings has made a statement, the accused may put the defence

case; he always has the last word, after the prosecutor has had an

opportunity to reply (Articles 185 and 186).

18. With the exception of the prosecuting authority, the parties

to criminal proceedings who have an interest in doing so may appeal

against the first-instance decision, in which case the Court of Appeal

rehears the whole case (second sentence of Article 236).

B. Procedure in proceedings conducted in absentia

19. In so far as possible, the preliminary investigation of a

suspect who is absent must be conducted with the same degree of

thoroughness as if he were present. In particular, witnesses with

relevant testimony must be heard (Article 260).

20. A person who is absent who has not been heard on the charges

brought against him may be committed for trial (öffentliche Anklage)

only if he has not been heard through his own fault and if, despite his

absence, it appears that the trial will result in a safe verdict

(Article 261 para. 1).

21. Where a person who is absent is committed for trial or a person

who is summoned to appear fails to do so without a valid excuse, the

President of the criminal court (Strafgerichtspräsident) orders that

the trial is to proceed in absentia (Kontumazialverhandlung). This is

indicated in the documents relating to the search and inquiry measures

taken to find the person concerned (Article 262 para. 1).

22. If the accused cannot be brought to the hearing, the relevant

documents of the investigation file are given to the members of the

court or are read out during the trial. The court gives judgment on

the basis of the file, after having heard the parties who are present

(Article 263 para. 1). The President may, of his own motion or at the

request of a party, order that evidence be taken from witnesses,

experts or any other persons (Article 263 para. 2).

23. If there is insufficient evidence to secure the accused's

conviction, the proceedings are stayed (Article 264 para. 1). On the

other hand, where the court convicts the accused, it must in its

judgment given in absentia (Kontumazurteil) determine the measures that

are to be taken as soon as the accused is arrested. The judgment must,

in so far as possible, be executed immediately (Article 264 para. 2).

24. A person convicted in absentia is formally notified thereof as

soon as he is brought before the relevant court or appears of his own

free will (Article 267 para. 1). He can apply for a retrial (Revision

des Verfahrens) in the ten days following notification (Article 267

para. 2). The application will only succeed if he shows that he did

not receive the summons or that, through no fault of his own, he was

prevented from appearing (Article 267 para. 3). If the application is

allowed, the case is retried under the ordinary procedure and a new

judgment is given (Article 267 para. 4); otherwise, or when no

application for a retrial is made, the judgment given in absentia

becomes final (Article 267 para. 5).

PROCEEDINGS BEFORE THE COMMISSION

25. In his application (no. 17602/91) lodged with the Commission

on 5 December 1990, Mr Thomann complained that he had been convicted

on 3 October 1990 by a court that was not impartial for the purposes

of Article 6 para. 1 of the Convention (art. 6-1).

26. The Commission declared the application admissible on

5 September 1994. In its report of 2 March 1995 (Article 31)

(art. 31), it expressed the opinion, by twenty votes to four, that

there had been no violation of Article 6 para. 1 (art. 6-1). The full

text of the Commission's opinion and of the two dissenting opinions

contained in the report is reproduced as an annex to this judgment (1).

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Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

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