W. v. SWITZERLAND

THE FACTS

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

summarised as follows:

The applicant, a Swiss national born in 1945, is a businessman

residing at G. in Switzerland. When filing the application he

was remanded in custody at Burgdorf prison in Switzerland. Before the

Commission the applicant is represented by Mr. P. Saluz, a lawyer

practising in Bern.

I.

As from October 1982 onwards the Criminal Police of the Canton

of Bern received complaints about the business activities of the

applicant and other persons; various criminal reports (Anzeigen) were

filed. During this time a number of companies in which the applicant

and other persons were involved went bankrupt.

In October 1984 a confidential report counting over 100 pages

and containing a request for criminal investigations (Ermittlungsgesuch)

was issued to various Interpol agencies in the Federal Republic of

Germany, the United States of America, the United Kingdom, Monaco and

various countries in the Caribbean.

On 8 February 1985 preliminary investigations were instituted

against the applicant and other persons.

On 27 March 1985 the applicant was arrested and remanded in

custody on suspicion of having committed various economic offences

and on the grounds of a danger of absconding, of collusion and of

repetition. The charges related to approximately 60 companies

controlled by the applicant.

Charges were also brought against altogether 12 other persons

of whom six were eventually arrested and remanded in custody.

As from mid-1985, two special investigating judges (Unter-

suchungsrichter) were appointed exclusively to conduct the

investigations concerning events dating back to 1977. The

investigating judges were assisted by two specialists of the Bern

Cantonal Police and two to three secretaries. The investigations

were placed under the supervision of the Public Prosecutor and the

Indictment Chamber (Anklagekammer) at the Court of Appeal

(Obergericht) of the Canton of Bern.

Between March 1985 and June 1986 the residencies of the

applicant and other persons and firms were searched in altogether 18

instances. Large amounts of documents were seized. According to the

subsequent report of the special investigating judges of 3 October

1988, the documents, which were found inter alia in a cellar and in a

bath, were in a complete mess (heilloses Durcheinander). During this

period the telephone and telex communications of the suspects were

monitored.

On 3 April 1985 the investigating authorities seized various

bank accounts in altogether 17 banks. Letters rogatory were issued in

respect of further banks. Eventually, the authorities established a

list of approximately 200 bank accounts concerning the criminal

proceedings instituted against the applicant and other persons. In

1985, monies and valuables possessed by the applicant and other

persons were confiscated on the basis of orders of, or following

searches on, 27 and 28 March, 3 April, 4 May, 2, 3 and 27 June,

5 September, 3 October and 25 November.

The investigating authorities entered the information

collected during the preliminary investigations by means of a computer

in a day-by-day journal (tagebuchartiger Abriss), eventually counting

891 pages.

The main case-file (Hauptdossier) eventually consisted of 711

files; a further file (Nebendossier) was also established. The row of

documents extended over 120 metres. Towards the end of 1986 a new

systematic order of the file was introduced. At one stage, when

establishing a systematic order, over 10,000 photocopies were prepared

per month. According to the Report of the special investigating

judges of 3 October 1988, the investigating authorities viewed every

single page of the case-file.

At the early stages of the proceedings difficulties arose with

regard to the various accused persons' right to consult the

case-file. At one stage, the investigating authorities considered

that consultation of the case-file would have to be refused for some

years. Altogether 14 complaints and appeals were filed against

various decisions of the investigating authorities. After April 1986

the accused were permitted to consult approximately 90% of the

case-file, after 22 October 1986 virtually the entire case-file.

On approximately 350 occasions the investigating authorities

questioned the applicant, the other accused and various other

persons. However, as from 11 April 1986 onwards the applicant no

longer replied to questions put to him by the investigating

authorities. The latter nevertheless interrogated the applicant on

altogether 36 occasions, namely in 1986: on 11 and 15 April;

7 May; 4 June; 17 July; 19, 26, 27 and 29 August; 1, 5, 10 and

22 September; and 24 November; in 1987: on 11, 16, 25 and 26

February; 4 and 6 March; 11 and 25 June; 7, 8, 9, 10, 13, 14, 20, 21,

22, 23, 24, 27 and 28 July; in 1988: on 12 July.

The minutes of the applicant's interrogations, amounting to

approximately 700 pages, consisted of the statements of the

investigating authorities, as well as the statement that the applicant

refused to reply thereto.

Between 29 March 1985 and 18 May 1988 the various persons

remanded in custody filed altogether 25 requests for release from

detention. The applicant filed altogether eight requests.

The applicant filed his first request to be released from

detention on remand on 24 May 1985. The request was dismissed on

1 July 1985 by the Indictment Chamber.

On 8 July 1985 the applicant filed certain complaints about

his official representation by a lawyer (amtliche Verteidigung).

These complaints were dismissed by the Indictment Chamber on 22 July

1985.

On 2 August 1985 the applicant complained that one of his

lawyers was not granted a permanent right to visit him, the applicant

(Dauerbesuchsbewilligung). The Indictment Chamber dismissed this

complaint on 28 August 1985.

On 26 August 1985 the applicant filed a second request to be

released from detention on remand. This request was dismissed by the

Indictment Chamber on 13 September 1985. Against this decision the

applicant filed a public law appeal (staatsrechtliche Beschwerde)

which the Federal Court (Bundesgericht) dismissed on 7 November 1985.

The Federal Court considered that the requirements to impose

detention on remand under Section 111 of the Bern Code of Criminal

Procedure (Gesetz über das Strafverfahren) were met in that the

applicant was under a compelling suspicion of having committed the

offence and in that there was a danger of collusion and of absconding,

in particular as since 1978 the applicant had been living in Monte

Carlo, Germany, the United States of America and Anguilla. Section 111

lays down the requirements for detention on remand, in particular the

compelling suspicion of having committed an offence, the danger of

absconding, of collusion or of repetition.

The Federal Court also regarded as proportionate the length of

the applicant's detention on remand so far. The decision continued:

[German]

"Indessen werden die Behörden des Kantons Bern alles daran setzen

müssen, das Verfahren beschleunigt zu fördern und insbesondere

diejenigen Personen zu vernehmen (und allenfalls mit dem

Beschwerdeführer zu konfrontieren), mit denen Kollusionsgefahr

bestehen könnte. Die Kompliziertheit des Sachverhalts allein

vermöchte eine jahrelange Untersuchungshaft kaum zu rechtfertigen."

[English translation]

"Nevertheless, the authorities of Canton Bern will have to do

everything to accelerate the proceedings and in particular to

question (or possibly to confront with the applicant) those

persons in respect of whom there exists a danger of collusion.

The mere fact that the case is complex would hardly justify

detention on remand for years."

Meanwhile, on 6 September 1985 the applicant filed a request

for the preparation of an expert opinion on certain company accounts.

This was his only request to obtain evidence during the preliminary

investigations. An expert opinion was eventually ordered in July

1986.

The applicant's third request to be released from detention on

remand of 17 March 1986 was again dismissed by the Indictment

Chamber. His public law appeal was dismissed by the Federal Court on

25 August 1986.

The Federal Court confirmed in particular that there continued

to exist a danger of absconding in particular as the applicant had

expressed the wish to start a new life in the United States of America.

On the other hand, the Court found that a danger of collusion could in

future no longer be assumed as the last co-accused, a certain V.K.,

had meanwhile been arrested, and the interrogations of the most

important witnesses had been completed.

The Court considered that the applicant was mainly responsible

for the length of his detention, since the complexity of the case was

due to his failure properly to keep the accounts of the various

companies.

The Court noted that the two investigating judges charged with

the investigations had so far worked very intensively, but that no

assessment of the materials had yet commenced with a view to a

subsequent indictment. Nor was it clear whether expert opinions

should be ordered in respect of the company accounts and the

psychiatric examination of the applicant. Finally, the Court

considered that the length of the applicant's detention on remand did

not yet come too close to the length of the applicant's prospective

prison sentence, even if in this respect the Indictment Chamber had

probably gone too far when it assumed that an eventual sentence might

be in excess of five years.

In July and October 1986 the investigating authorities ordered

the preparation of two expert opinions concerning the company accounts,

and a psychiatric examination of the applicant, respectively. The

accountancy opinion was submitted on 10 April 1987, the psychiatric

opinion on 22 December 1986. The latter confirmed the applicant's

full criminal responsibility (Zurechnungsfähigkeit). On 19 January

1987 the investigating authorities unsuccessfully requested the Bern

Guardianship Office (Vormundschaftsbehörde) to place the applicant

under guardianship.

On 12 December 1986 the applicant filed a fourth request to be

released from detention on remand, which the Indictment Chamber

dismissed on 20 January 1987. The applicant's subsequent public law

appeal was dismissed by the Federal Court on 24 March 1987.

The Court found that, insofar as the applicant complained of

the time required to prepare the expert accountancy opinion, namely

eight months, he himself had disregarded elementary rules of

accountancy, for instance by filling financial "holes" in one company

with the means of other companies.

The Court further noted the volume of the case-files,

consisting of a row of one hundred metres, and observed that the

authorities, in view of the nature of the case had appointed two

investigating judges which now envisaged terminating the

investigations by autumn 1987. The Court also noted the applicant's

refusal to answer questions. The decision continued:

[German]

"Immerhin sei betont, dass eine Praxis, wonach ein schwerer

Wirtschaftsdelikte, jedoch keiner Gewalttaten verdächtiger

Angeschuldigter allein wegen genereller Fluchtgefahr

notwendigerweise bis zur rechtskräftigen Beurteilung seiner

Sache in Haft zu bleiben habe, mit dem Grundrecht der

persönlichen Freiheit nicht vereinbar wäre... Zu berücksichtigen

ist in diesem Zusammenhang auch, dass der Anreiz zur Flucht im

allgemeinen abnimmt, je grösser der bereits erstandene Haftanteil

wird. Untersuchungsrichter, Staatsanwaltschaft und Anklagekammer

werden daher nach Vornahme der wenigen Untersuchungshandlungen,

bezüglich welcher noch eine gewisse Kollusionsgefahr angenommen

werden kann, längstens jedoch nach einer Haftdauer von 21/2 Jahren,

die Haftentlassung des Beschwerdeführers unter Anordnung der

geeigneten Ersatzmassnahmen im Sinne von Art. 111a des bernischen

Gesetzes über das Strafverfahren in Erwägung ziehen müssen.

Anders verhielte es sich nur dann, wenn sich bis dahin konkrete

Anhaltspunkte für eine Fluchtabsicht ergeben sollten. Der

Haftgrund der Wiederholungsgefahr ... dürfte dagegen bei dem

nicht vorbestraften Beschwerdeführer ausser Betracht fallen."

[English translation]

"It has nevertheless to be emphasised that it would no longer be

compatible with the basic right of personal freedom if an accused

suspected of serious economic offences but not of violent acts

was detained on remand until the final determination of his case

merely on the ground of a general danger of absconding... It has

also to be taken into account in this respect that the incentive

to abscond generally decreases as the proportion of time spent in

detention increases. The investigating judges, the Public

Prosecutor's Office as well as the Indictment Chamber will all

have to consider the applicant's release from detention together

with any suitable concomitant supplementary measures within the

meaning of Article 111a of the Bern Code of Criminal Procedure,

once they have undertaken the few investigating acts in respect

of which a certain danger of collusion can still be accepted, but

at the latest after a period of detention of two and a half

years. Matters would only be different if until then there

should be concrete indications of a danger of absconding. The

danger of repetition on the other hand ... would not play a part

since the applicant has not previously been convicted."

Meanwhile, during these proceedings the applicant was in

exceptional cases not permitted to be present during certain acts of

investigation. Upon the applicant's complaint, the Indictment Chamber

decided on 27 January 1987 that the applicant was to be granted the

right in principle to be present during the investigations.

On 16 April 1987 the Public Prosecutor's Office in Munich

which was conducting the investigations concerning the applicant in

the Federal Republic of Germany established its report which was

subsequently sent to the investigating judges in Bern.

In 1987 moneys and valuables concerning the applicant and

other persons were confiscated on the basis of orders of, or following

searches on, 16 and 19 January, 9 February, 5 March, 14 May, 2 July,

19 and 21 August (concerning the applicant's personal objects such as

a watch and ring and the surplus resulting from the sale of real

property) and 1 December (concerning a life insurance policy).

On 3 August 1987 the applicant filed a fifth request to be

released from detention on remand which was dismissed by the

Indictment Chamber on 4 September 1987. His public law appeal was

dismissed on 29 October 1987 by the Federal Court.

The Federal Court considered in particular that the delay was

justified by the additional work resulting from the investigations.

Moreover, an excess of the maximum permissible duration of detention

on remand would not be excluded as long as the investigating

authorities had handled the investigations speedily. While its

decision of 24 March 1987 had envisaged a maximum length of detention

of two and a half years, the investigating authorities had meanwhile

taken over proceedings instituted against the applicant in the Federal

Republic of Germany. Nevertheless, the length of detention on remand

should not come too close to the anticipated maximum duration of the

prison sentence. In this respect the Federal Court did not regard it as

unreasonable that the investigating authorities anticipated a prison

sentence of more than five years, particularly since the German

authorities also considered that the applicant had committed the

offence of fraud under German law. As a result, the detention on

remand did not yet exceed the critical limit.

The applicant's sixth request of 2 December 1987 to be

released from detention on remand was rejected by the Indictment

Chamber on 9 December 1987.

On 18 December 1987 the applicant requested unsupervised

visits by his wife. This request was dismissed by the Indictment

Chamber on 16 February 1988, and the Federal Court on 19 May 1988.

On 1 February 1988 the applicant filed a seventh request to be

released from detention on remand, which was dismissed by the

Indictment Chamber on 18 February 1988. The latter found in

particular that the danger of absconding could not be avoided merely

by imposing substitute securities. Rather, substantial financial

guarantees would have to be submitted which the applicant had

nevertheless refused to provide. The applicant's subsequent public law

appeal was dismissed by the Federal Court on 25 April 1988.

The Federal Court found that the applicant had failed to

demonstrate that in his case there no longer existed a danger of

absconding. It further regarded the duration of detention pending

trial as still falling within the permissible limit, in particular

since the anticipated prison sentence would probably exceed five years

by far. While the investigating authorities had frequently postponed

the date at which the investigations would be closed, the Court noted

in particular the difficulties of preparing a day-by-day journal on

the basis of the information gathered and the fact that investigations

were also being conducted against other accused persons, each charged

with different offences. Moreover, the applicant continued to refuse

to co-operate with the authorities, and one of the investigating

judges had fallen ill. The Court nevertheless urged the investigating

authorities to conclude the investigations within the next months.

Meanwhile, on 17 February 1988 the applicant filed a complaint

that various personal gold objects had not been handed out to him. He

also complained that in certain bankruptcy proceedings he had not been

able to consult the case-file, and that in civil proceedings in which

he was involved he had not been granted a further officially appointed

lawyer. These complaints were dismissed by the Indictment Chamber on

17 February 1988.

On 7 March 1988 the Bern Cantonal Police Office charged with

the investigation of one business enterprise, the ITF/Sülan,

established their final report and transmitted it to the investigating

judges.

On 16 March 1988 the applicant challenged an investigating

judge on account of certain remarks which the latter had made. The

challenge was dismissed by the Indictment Chamber on 28 March 1988,

and by the Federal Court on 11 July 1988.

On 18 May 1988 the applicant filed his eighth request to be

released from detention on remand. The request was dismissed by the

Indictment Chamber on 27 June 1988.

The applicant's further public law appeal was partly upheld by

the Federal Court on 19 August 1988. With reference to the Convention

organs' case-law, the Court found in particular that the applicant had

not been granted the possibility in these proceedings to comment on

statements of the Public Prosecutor (Generalprokurator) and the

investigating judges.

As a result, the applicant was granted the possibility to

comment on the statements concerned. Subsequently, on 6 September

1988 the Indictment Chamber again dismissed the applicant's eighth

request to be released from detention on remand. The applicant filed

a further public law appeal which the Federal Court again partly

upheld on 15 November 1988.

The Court found that a mere theoretical danger of collusion

did not suffice to justify further custody. In the applicant's case

however there were concrete indications that such a danger existed.

The Court also noted that on 2 September 1988 the applicant had been

indicted (see below II.) and that therefore it could not be said that

the authorities had disregarded the Court's instructions of 25 April

1988.

On the other hand, with regard to the question whether the

applicant's detention on remand was approaching the absolute limit,

the Court stated that for the calculation of the prospective prison

sentence not all criminal offences, but only those in respect of which

it was virtually certain that the applicant would eventually be

convicted, had to be considered. The cantonal authorities had

assumed a possible sentence of 15 years which in the Court's view was

clearly exaggerated (deutlich übersetzt). In view thereof the

cantonal authorities had failed to examine the possibility of the

applicant's early provisional release from detention. The Court thus

quashed the decision of the Indictment Chamber of 6 September 1988

with the instruction to consider the possibility of provisional

release.

On 10 January 1989 the Indictment Chamber dismissed for a

third time the applicant's eighth request to be released from

detention on remand.

The applicant's subsequent public law appeal was dismissed by

the Federal Court on 23 February 1989. The Court agreed in particular

with the Indictment Chamber's view that there were no convincing

reasons (triftige Gründe) warranting provisional release. Reference

was made in particular to the psychiatric opinion of 22 December 1986

according to which the applicant qualified as a swindler (Hochstapler)

and an unrestrained hedonist. The Court also found it irrelevant that

the applicant's conduct during detention had been excellent.

During these proceedings the applicant offered a security

amounting to 30,000 SFr. The security was considered insufficient by

the authorities in view of the presumed damages at a value of over

50 million SFr.

II.

Meanwhile, on 29 April 1988 the investigating judges announced

in the document "Notification and decision" their intention to commit

the applicant for trial before the Criminal Chamber for Economic

Offences (Wirtschaftsstrafgericht) at the Bern Court of Appeal. The

notification referred inter alia to the charges of professional fraud,

fraudulent bankruptcy, forging and suppressing documents and tax fraud.

With regard to the charges of professional fraud, the

notification referred to damages of at least 50 million SFr, caused

between 1977/1978 and 1985. It stated that the applicant had, in

order to enrich himself, as sole or mainly responsible person with the

help of front-men abused the control of many companies located in

Switzerland, Panama, the Caribbean, the United Kingdom and the Federal

Republic of Germany. He had created a network of relations between

the companies which he then exploited by all means. When the applicant

encountered financial difficulties, he tried to solve them by

exploiting new companies, thus leading more and more companies into

bankruptcy. He deceived his creditors by means of false financial

securities and statements about the state of the companies.

On 17 May 1988 the applicant filed comments on these charges.

On 26 May 1988 the criminal proceedings against the applicant

and two other co-accused were separated in view of the urgency of

their case.

On 28 June 1988 the applicant complained that he was not

permitted to consult the case-file, and that his lawyer was not

allowed to take certain files to his office or use the official

photocopier free of charge. These complaints were dismissed by the

Indictment Chamber on 27 July 1988.

On 2 September 1988 the applicant was committed for trial

(Überweisungsbeschluss) before the Criminal Chamber for Economic

Offences at the Bern Court of Appeal (Wirtschaftsstrafgericht).

On 30 August 1988 various orders were issued concerning the

confiscation of coins and stamps amounting to approximately 500 SFr

and two bonds (Schuldbriefe).

On 3 October 1988 the special investigating judges filed a

report numbering 50 pages on the manner in which the preliminary

investigations against the applicant had been conducted.

The trial commenced on 17 February 1989 and lasted until

30 March 1989.

On 30 March 1989 the applicant was convicted by the Criminal

Chamber for Economic Offences at the Bern Court of Appeal inter alia

of various instances of professional fraud, fraudulent bankruptcy,

partly committed until December 1985 while the applicant was remanded

in custody, and forging and suppressing documents. The applicant was

sentenced to 11 years' imprisonment and a fine of 10,000 SFr. The

detention on remand of 1,465 days was counted towards the sentence.

The applicant was ordered to pay court costs amounting to 179,900 SFr.

One co-accused was sentenced to three years' imprisonment

and a fine of 2,000 SFr, another co-accused to two and a half years'

imprisonment and a fine of 2,000 SFr. These co-accused were also

ordered to pay court costs amounting to 25,700 SFr each.

The written reasons of the judgment were served on the

applicant on 15 January 1990.

COMPLAINTS

The applicant complains under Article 5 para. 3 of the

Convention of the length of his detention on remand lasting since

27 March 1985. In his opinion, this length has been warranted neither

by the complexity of the case nor by his refusal to co-operate with

the prosecution; it is not proportional to the envisaged prison

sentence.

The applicant submits that from the beginning it was clear

that an experienced investigating judge was called for. Yet the two

investigating judges appointed had no specific experience and the

result of their investigations was insufficient for an indictment.

In the applicant's opinion too much work was invested in the

investigations. In fact, it became impossible for him effectively to

have access to the case-materials.

The applicant contends that the committal for trial statement

was too summary. It could also not be argued that the lengthy period

of investigations was compensated by speedy trial proceedings, since

the written reasons of the judgment were only prepared many months

later.

The applicant finally draws attention to procedural issues

during the proceedings, for instance the restrictions when consulting

the case-file.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 September 1988 and

registered on 10 November 1988.

On 12 July 1989 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated

13 October 1989 and the applicant's observations were dated

13 December 1989.