A.S. v. SWITZERLAND

THE FACTS

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

summarised as follows:

The applicant, a Swiss citizen born in 1962, is a mason. When

filing the applications he was still detained in the District prison

of Affoltern Prison in Switzerland. On 15 September 1988 he was

released from detention on remand. Before the Commission he is

represented by Mr J.P. Garbade, a lawyer practising in Geneva and

Zurich.

The applicant has submitted two applications relating to his

contacts with his defence counsel during his detention on remand.

Application No. 12629/87 concerns the circumstances leading up to,

and including, the decision of the Federal Court (Bundesgericht) of

4 December 1985. Application No. 13965/88 concerns the subsequent

situation leading up to, and including, the decision of the Federal

Court of 30 November 1987.

I.

As from 1980 demonstrations took place in Winterthur

which were directed, inter alia, against an international arms fair

and the export of nuclear technology to a South American country.

In this context, buildings were occupied or sprayed with graffiti.

At the same time explosions, fires and floodings damaged

certain public and private buildings in Winterthur. An explosion

occurred in the home of Mr F., the then Federal Councillor (Bundesrat)

and Head of the Department of Justice and Police, causing damages of

approximately 20,000 CHF.

On 20 July 1984 the Winterthur police set up a task force to

investigate these offences. A number of persons living in a commune

in Winterthur were kept under surveillance, whereby, inter alia, their

telephones were tapped and the contents of their refuse bags analysed.

On 20 November 1984 27 persons were temporarily arrested. One Mr A.W.

was remanded in custody and eventually sentenced on 15 September 1986

by the Zurich Court of Appeal (Obergericht) to eight years'

imprisonment on the grounds of having prepared, with others, the

offences of arson and causing an explosion. Upon appeal, this sentence

was reduced to four years' imprisonment. While A.W. was remanded in

custody, he was represented by Mr R., a lawyer practising in Zurich

with whom he was able to communicate freely after 15 February 1985.

On 21 November 1984 the applicant was arrested in Geneva on

suspicion of having participated in the above offences. On the same

day, the applicant absconded.

He was again arrested on 30 March 1985. On 1 April 1985 the

applicant was heard by the Geneva authorities whereby he was charged

of the offences of theft and of damage to property. On 2 and 4 April

1985 the Federal Public Prosecutor (Bundesanwalt) transmitted to the

Geneva authorities statements raising charges against the applicant

which were served on him on 4 April 1985. On 10 April 1985 the

applicant was confronted with a number of charges, concerning inter

alia the explosion at Mr. F'.s house, by officials of the Federal

Public Prosecutor's Office. He did not make any statement.

On 22 May 1985 the criminal proceedings concerning the charges

brought by the Federal Prosecutor's Office were transferred to the

Zurich authorities, namely the Winterthur District Attorney's Office

(Bezirksanwaltschaft), and the applicant was brought, via Berne, to

Winterthur Prison. On 28 May 1988 he was heard by the Winterthur

District Attorney and charged with the offences of having caused

explosions at the home of Mr F. as well as of arson at a civil protection

centre. He was remanded in custody on the grounds of a danger of

absconding and of collusion. It was feared, in particular, that he

might conspire with other co-accused in order to procure an alibi.

The charges brought against the applicant were extended on 7

June 1985 to the offences of setting fire to two houses at rifle ranges

(Schützenhäuser) and of flooding a business house as well as damaging

property by spraying graffiti on walls.

On 19 July 1985 the charges brought by the Geneva authorities

were also transferred to the Wintherthur District Attorney's Office.

Other investigations conducted by the Geneva authorities concerning

arson, of which the applicant had so far not been charged, were also

transferred to Winterthur. The applicant was informed of these

charges on 6 September 1985.

II.

In April 1985 the applicant asked his mother to enquire

whether Mr R., the lawyer representing A.W., would also represent

him. On 30 April 1985 R. declined as he was overloaded with work,

though he recommended to the applicant a former office colleague of

his, namely the applicant's present lawyer. On 1 May 1985 the

applicant signed a power of attorney in favour of the present lawyer.

The applicant's oral communications with his present lawyer

were supervised from 31 May 1985 until 10 January 1986. Written

communications between the applicant and his lawyer were also

supervised. Thus, three letters of the applicant to his lawyer dated

4, 6 and 21 May 1985 were intercepted and later employed by the

authorities to prepare graphological expert opinions.

This supervision was based on S. 18 para. 2 of the Zurich Code

of Criminal Procedure (Strafprozessordnung) which envisages such

supervision in particular if there is a danger of collusion. In the

present case, according to a letter of the Winterthur Public

Prosecutor's Office of 12 June 1985, the Office saw such a danger of

collusion in the fact that the applicant's lawyer could conspire with

other lawyers or accused. In respect of the applicant, the Winterthur

District Attorney referred in the above order imposing detention on

remand on the applicant on 28 May 1985 to the danger that he would

otherwise procure an alibi. In the District Attorney's request to the

Public Prosecutor's Office (Staatsanwaltschaft) for a prolongation of

detention on remand of 9 September 1985, reference was made to the

danger that the applicant might conspire with other accused who had

meanwhile been released, or that he might influence evidence in his

favour.

Only twice did unsupervised visits occur. On 8 May 1985,

while still at Berne prison, the applicant was able freely to confer

with his present lawyer for thirty minutes. Later, at Winterthur

prison, the applicant was able once to confer freely with another

lawyer, Dr H., who visited him upon instructions of the applicant's

mother.

On 10 June 1985 the President of the Indictment Chamber

(Anklagekammer) of the Zurich Court of Appeal (Obergericht) officially

appointed, retroactively as from 4 May 1985, the applicant's defence

counsel. The President also extended the applicant's detention on

remand until 12 September 1985.

On 31 May 1985, the applicant conferred with his defence

counsel under the supervision of a certain Mr S., a police officer

dealing with the case (Sachbearbeiter). Mr S. took notes and after

one hour stopped the discussion between the applicant and the defence

counsel on the grounds that, in his view, they were no longer talking

about the proceedings and that he, Mr S., still had other business to

do.

III.

The applicant filed an appeal (Beschwerde) in which he

complained that he was not allowed freely to confer with his defence

counsel.

On 27 June 1985 the Indictment Chamber at the Zurich Court

of Appeal dismissed the appeal. It found that the applicant was

seriously suspected of having committed the various offences and that

there was a grave danger of collusion in view of the extremely complex

and voluminous investigations being conducted by the authorities. As

the applicant refused to speak with the authorities, he could easily

tamper with the evidence, particularly as most of the other co-accused,

with the exception of A.W., had been released from detention. The

Indictment Chamber observed that the applicant had maintained close

contacts with the other co-accused and that the offences with which

they were charged were very dangerous in that they constituted attacks

against the order of the State and society in general (Staats- und

Gesellschaftsordnung).

Finally, the Indictment Chamber saw a danger of unintentional

collusion by counsel, in that the applicant's defence counsel would

collaborate with the lawyer representing other co-accused, inter alia

with Mr R. who was defence counsel for A.W.

In a separate appeal (Rekurs) the applicant also complained

that he had not been able to consult all the documents of the file and

that the proceedings concerning the legality of his detention had been

conducted without an oral hearing. This appeal was dismissed by the

Indictment Chamber on 18 July 1985 which also upheld the extension of

the applicant's detention on remand until 12 September 1985 in view of

the existing danger of collusion and of absconding.

The applicant's detiention on remand was subsequently

prolonged on 9 September and 12 December 1985.

IV.

Against the decision of the Indictment Chamber of 27 June 1985

the applicant filed a further appeal (Rekurs) which was dismissed on

26 July 1985 by the Civil Chamber (Zivilkammer) at the Zurich Court of

Appeal.

The Civil Chamber found that, as the applicant refused to

testify, he was in a position to conspire with other persons involved

in the proceedings in order to coordinate (abstimmen) his eventual

depositions. It was to be assumed that the applicant would pursue such

a conspiracy with all possible means. Insofar as Dr H. had been able

freely to confer with the applicant, the Civil Chamber did not regard

as credible the submissions of the present lawyer according to which

his contacts with the lawyers representing the other co-accused were

not more intensive than those which Dr H. had with these lawyers. The

Civil Chamber noted that, Mr R., who was the defence counsel for A.W.,

had in fact told the District Attorney's Office that the various

lawyers would coordinate their position. The decision continues:

<German>

"Dieses Vorgehen ist zwar nicht unzulässig, doch muss es mit

dem Gebot der materiellen Wahrheitsfindung vereinbar sein.

Da die von Rechtsanwalt Garbade und Rechtsanwalt R.

verteidigten Angeschuldigten von ihrem Recht Gebrauch

machen, die Aussage strikte zu verweigern, ist die Gefahr

nicht von der Hand zu weisen, dass die Verteidiger nicht nur

ihr taktisches und rechtliches Vorgehen absprechen, sondern

allenfalls auch die materielle Wahrheitsfindung gewollt oder

ungewollt beeinträchtigen. Unter diesen Umständen sind

gerade bei Delikten der vorliegenden Art, die als Angriffe

auf die Staats- und Gesellschaftsordnung aufzufassen sind,

genügend Anhaltspunkte gegeben, die auf eine Kollusions-

gefahr in der Person des Verteidigers hinweisen."

<Translation>

"Such a manner of proceeding may not be inadmissible, but is

must conform with the rule of finding the material truth.

As the co-accused, represented by the lawyers Garbade and

R., have availed themselves of their right to remain silent,

the danger cannot be excluded that the defence counsels not

only coordinate their manner of proceeding in a tactical and

juridical way, but possibly also, intentionally or not,

impair the finding of the substantive truth. In such

circumstances, there are sufficient indications which point

to a danger of collusion in the person of the defence

counsel, particularly in respect of offences, such as the

present ones, which must be considered as attacks against

the order of the State and society."

V.

The applicant then filed two public law appeals (staats-

rechtliche Beschwerden) against the decisions of the Indictment Chamber

of the Zurich Court of Appeal of 27 June and 18 July 1985, and of its

Civil Chamber of 26 July 1985. In his public law appeal of 19 August

1985 he complained under Article 6 para. 3 (b) of the Convention in

connexion with Article 5 para. 4 of the Convention and with reference

to a previous decision of the Federal Court that the supervision of

the communications with his lawyer rendered illusory the right to a

procedure under Article 5 para. 4. In his public law appeal of

27 August 1985 he alleged inter alia that his right to a fair hearing

(das rechtliche Gehör des Beschwerdeführers) in the context of

Article 5 para. 4 of the Convention was invalidated in respect of the

appeal proceedings concerning the prolongation of his detention on

remand. He claimed in particular that supervision made it impossible

confidentially to talk with his lawyer as to the means with which the

evidence adduced by the investigating authorities could be challenged.

These public law appeals were rejected in two decisions of the

Federal Court of 15 October and 4 December 1985. On the first page of

both decisions the Court referred to Articles 5 para. 4 and 6 para. 3

(b) of the Convention.

In its decision of 15 October 1985 the Federal Court

considered the procedure in which the legality of the applicant's

detention on remand was examined. Thus the Court found that the

applicant's lawyer had been able to consult at least part of the

case-file and that at the latest for the preparation of the trial the

defence counsel would be able to consult the entire case-file. The

Court also saw no obligation to conduct an oral hearing in proceedings

concerning the prolongation of the applicant's detention on remand.

Finally, the Court considered that the length of the applicant's

detention on remand had not yet exceeded the permissible maximum.

On 4 December 1985, the Federal Court dismissed the applicant's

complaints concerning the supervision of his communications with his

defence counsel. This decision was served on the applicant's lawyer

on 28 May 1986.

The Court considered that it could only examine the decision

of the Civil Chamber of 26 July 1985 and that it was unaware of the

applicant's situation thereafter. The Court dismissed at the outset

the applicant's complaints under Article 6 para. 3 (b) of the

Convention since he had not claimed that the supervision of the

contacts with his defence counsel impaired the preparation of the

trial. Rather, the applicant's complaints fell to be considered under

Article 4 of the Swiss Constitution and Article 6 para. 3 (c) of the

Convention, as interpreted by the Commission's case-law.

In the Federal Court's opinion, it was not arbitrary if the

Zurich authorities viewed the alleged offences as systematic attacks

against the order of the State and society, particularly if one bore

in mind the selection of the objects attacked. Thus, the accused

persons appeared extraordinarily dangerous and it could well be

assumed that they would resort to illegal means even during the trial

proceedings. As a result, regardles of the individual lawyer

concerned, the supervision of the applicant's contacts with his

defence counsel conformed with the Constitution and the Convention.

The Federal Court considered further that if irregularities

occurred on the part of a defence counsel, it was in the first place

up to the disciplinary authorities to undertake the necessary

sanctions. Nevertheless, even a defence counsel could, intentionally

or not, become an accomplice of the accused. It could reasonably be

said (mit haltbaren Gründen) that such a situation could arise all the

more in respect of the applicant's defense counsel as he stood in

close contact with Mr R. who represented A.W. while the latter had

been able freely to confer with his defence counsel. This did not in

the Court's opinion imply a discrimination of the applicant in as much

as A.W. had been detained much longer and was charged with other

offences.

VI.

The contacts between the applicant and his defence counsel

continued to be supervised. Thus, notes for the file on contacts

between the applicant and his lawyer were prepared on 23 August,

11 and 21 October, and 18 December 1985.

According to a note prepared for the file by the Winterthur

District Attorney on 21 October 1985, he told the applicant's lawyer

on that day that the supervision of communications would be stopped

when he, the District Attorney, had heard without interference by

third parties the applicant's views in respect of all charges brought

against him. When the lawyer told the District Attorney that the

applicant would probably refuse to speak until he had unsupervised

contacts with the lawyer, the District Attorney replied that this was

the applicant's right. Subsequently, by letter of 2 April 1986 to the

applicant's lawyer, the District Attorney recalled that the

applicant's lawyer had told him that the applicant would not comment

on the investigations; he, the District Attorney, assumed therefore

that the applicant renounced his right to be heard on the reports and

minutes of the interrogations.

On 20 December 1985 the applicant again filed an appeal

(Beschwerde) in which he complained about the supervision and that his

defence counsel was not able to consult the case-file. The Indictment

Chamber dealt with these complaints in two decisions.

In its first decision of 8 January 1986 the Indictment Chamber

reserved for a later decision the issue of the supervision of the

applicant's contacts with his defence counsel in view of the fact that

the Public Prosecutor's Office envisaged unsupervised contacts after

9 or 10 January 1986. The Chamber further found that the applicant

was suspected of having committed the offences at issue, and if the

investigations lasted a long time this was also due to the applicant's

refusal to make any statement.

According to the subsequent decisions of the Federal Court of

30 November 1987, the applicant was permitted freely to communicate

with his lawyer as from 10 January 1986. The applicant claims that

this happened as from 14 January 1986.

On 10 July 1986 the Indictment Chamber gave its second

decision which complemented (Nachtragsbeschluss) the decision of 8

January 1986. The Chamber found that the applicant now lacked legal

interest in his appeal as his contacts with his defence counsel were

no longer supervised.

The Indictment Chamber then examined whether or not the

applicant had to bear the costs of the proceedings and whether he was

entitled to compensation. In order to resolve this issue the Chamber

had to examine whether the applicant's appeal of 20 December 1985

would have been successful if the supervision of the contacts with his

defence counsel had continued. The Chamber concluded that the

circumstances referred to in the decision of the Federal Court of

4 December 1985 had not changed until 20 December 1985. As a result

the supervision had been necessary and the applicant's appeal would

probably have been dismissed. In view of the procedure chosen by the

Indictment Chamber, resulting in two different decisions, the

applicant was nevertheless exempted from costs and expenses, though no

compensation was granted.

The applicant's further appeal (Rekurs) was dismissed by the

Civil Chamber at the Zurich Court of Appeal on 19 January 1987, which

also considered that the applicant's appeal of 20 December 1985 would

probably have been dismissed.

The applicant's public law appeal against the decision of

19 January 1987 was dismissed by the Federal Court on 30 November

1987. The latter's decision was served on the applicant's lawyer on

7 December 1987. The Federal Court found it could only examine whether

the Zurich authorities had arbitrarily refused to grant compensation

to the applicant on the ground that his appeal of 20 December 1985

would probably have been dismissed.

In the Court's view there continued to exist a danger of

collusion in respect of the applicant. The investigations were

prolonged inter alia by the extraordinary number of the offences of

which the applicant was charged, and it could be assumed, without

arbitrariness, that the relevant circumstances did not change between

July and December 1985.

VII.

On 28 July 1986 the final interrogation of the applicant took

place. According to the minutes of the interrogation, counting 125

pages, the applicant remained silent while being confronted with the

charges brought against him. The applicant's lawyer stated at the end

inter alia that the accusations were based merely on the assumption

that the applicant had anarchical views.

On 21 August 1986 the Winterthur District Attorney submitted

his final report of 235 pages on the investigations. Therein, he

charged the applicant with having participated on three occasions in

the offence of causing an explosion and of having committed nineteen

instances of arson, or attempted to do so. The applicant was also

charged of various instances of theft and of damaging property and a

railway line. The damages amounted to a total of approximately

7,670,000 SFr. The file was then transmitted to the Zurich Public

Prosecutor's Office (Staatsanwaltschaft).

On 12 September, 6 October and 22 December 1986 the applicant

unsuccessfully requested the Public Prosecutor's Office to take

further evidence.

On 29 January 1987 the Zurich Public Prosecutor's Office

indicted the applicant of the various offences mentioned. In his

reply thereto the applicant requested on 1 April 1987 the taking of

further evidence.

The applicant subsequently did not employ his right to choose

that his trial should rather be conducted by the Jury Court (Geschwore-

nengericht) than the Zurich Court of Appeal acting as Cantonal Court.

On 12 June 1987 the applicant was committed to trial before the Zurich

Court of Appeal.

At the trial the Public Prosecutor requested a punishment of

11 years' imprisonment (Zuchthaus).

The date for the pronouncement of judgment was fixed for

4 January 1988. However, as the applicant did not appear, the Court

adjourned the pronouncement. On 2 February and 15 September 1988 the

Court ordered the preparation of three graphological expert opinions.

On 15 September 1988 the applicant was released from detention

on remand.

The last expert opinion was prepared by 17 August 1989 and

served on the applicant on 23 August 1989. The applicant was also

asked whether he wished to be tried by the Zurich Jury Court.

COMPLAINTS

1. The applicant complains under Article 6 paras. 3 (b) and (c)

of the Convention that he was not allowed to communicate freely, and

without supervision, with his defence counsel from 31 May 1985 until

14 January 1986.

2. The applicant further complains that his right to take

proceedings before a court within the meaning of Article 5 para. 4

of the Convention became illusory by the prohibition of free

communication with his defence counsel.

3. The applicant also complains under Article 13 of the

Convention that, after the Zurich authorities had examined his appeal

of 20 December 1985, the Federal Court only examined whether or not

these authorities had arbitrarily considered that his complaint of

20 December 1985 would probably have been dismissed.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 12629/87 was introduced on 18 November 1986

and registered on 5 January 1987. Application No. 13965/88 was

introduced on 28 May 1988 and registered on 20 June 1988.

On 12 December 1988 the Commission decided to join the

applications, to bring them to the notice of the respondent

Government and to invite them pursuant to Rule 42 para. 2 (b) of the

Rules of Procedure to submit observations on their admissibility and

merits, in respect of the complaints under Articles 5 para. 4,

6 para. 3 (c) and 13 of the Convention.

The respondent Government's observations were submitted on 27

February 1989 and the reply thereto by the applicant on 10 April 1989.