U.P. v. SWITZERLAND

THE FACTS

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

summarised as follows.

The applicant, an Austrian national born in 1934, is a

businessman residing in Vienna. Before the Commission he is

represented by Mr. Ludwig Minelli, a lawyer practising in Forch

(Switzerland).

The background of the application is the sinking of a ship, the

"Lucona", off the Maldives in the Indian Ocean on 23 January 1977,

causing the death of six sailors. The freight which went down with the

ship allegedly consisted of an uranium recycling plant, which the

applicant had insured in the amount of 31,000,000 Swiss francs on

behalf of the ZAG, a company incorporated under Swiss law.

Doubts arose as to the circumstances of the accident and the

nature of the freight. Criminal proceedings were instituted against

the applicant.

In 1985 and 1986 Mr. U., editor of the "Schweizerische

Handels-Zeitung", a newspaper published in Switzerland, wrote three

articles on the connection between Swiss businessmen and the "Lucona"

affair. In an article dated 5 June 1986 and headed "Lucona Insurance

Scandal: Proksch's Swiss Friends. Insurance fraud drifts towards

murder charge" ("Lucona-Versicherungsskandal: Prokschs Schweizer

Freunde - Versicherungbetrug steuert auf Mordanklage zu"), Mr. U. wrote

the following:

[Translation]

"The mills of justice grind slowly. In particular if

mutual assistance in criminal matters is concerned. But

confectioner U.P. will probably not get the sweet millions

he wanted to grab from the Bundesländer-Versicherung in

Vienna and the Helvetia Feuer in St. Gallen in one of the

biggest insurance coups in Europe. The sinking of the

"Lucona" in the far away Indian Ocean with its presumed,

highly insured cargo, a "well-packed" uranium recycling

plant, has not only woken up insurance firms and courts in

Austria. Not only in Austria investigators are closing in

on U.P.; also in Switzerland evidence is getting

increasingly weighty because now also his friends in ...

find themselves in the dock.

Statements of "production" and eyewitnesses of the sinking

of the ship lead to the conclusion that what concerns the

courts is no longer just a simple insurance fraud, but an

increasingly strong suspicion of murder. After all six

people died in the sinking of the ship and not without a

reason."

[Original]

"Die Mühlen der Justiz mahlen langsam. Vor allem, wenn es

sich um internationale Rechtshilfe handelt. Aber aus den

Zuckermillionen, die sich der Zuckerbäcker U.P. mit einem

der grössten Versicherungscoups in Europa bei der

Bundesländer-Versicherung in Wien und bei der Helvetia

Feuer in St. Gallen unter den Nagel reissen wollte, wird

wohl nichts. Der Untergang der 'Lucona' im fernen

Indischen Ozean mit der vermeintlichen, hochversicherten

Fracht, einer 'wohlverpackten' Uranmühle, hat nicht nur

Versicherungen und Gerichte in Oesterreich wachgerüttelt.

Um U.P. ziehen sich die Fäden nicht nur in Oesterreich

enger, sondern auch die Beweise in der Schweiz werden immer

drückender, denn nun stehen auch seine Freunde in ... vor

den Gerichtsschranken ...

Aus den Aeusserungen der 'Produktions'- und Augenzeugen des

Untergangs lässt sich unschwer der Schluss ziehen, dass es

vor den Gerichte(n) schon lange nicht mehr einfach um einen

handfesten Versicherungsbetrug geht, sondern weit mehr um

einen sich immer deutlicher abzeichnenden Verdacht auf

Mord, denn schliesslich kamen beim Schiffsuntergang sechs

Personen nicht grundlos ums Leben."

With reference to these statements the applicant on

4 September 1986 brought a private prosecution against Mr. U. for

defamation by the press (Ehrverletzung durch die Presse) at the Zurich

District Court (Bezirksgericht). On 1 June 1988 he filed the

definitive version of his prosecution with the court.

On 16 February 1989 the District Court acquitted Mr. U. of the

offence of defamation. Upon appeal, the Zurich Court of Appeal

(Obergericht) on 31 October 1989, confirming the District Court's

judgment, also acquitted Mr. U.

In respect of the defamation charge under Article 173 of the

Penal Code, the Court allowed Mr. U. to produce exonerating evidence

as provided for in Article 173 para. 2 of the Penal Code. The Court

did not examine whether the accused had successfully proven that his

accusations against the applicant were actually true ("proof of

truth"). It examined however whether the accused had succeeded in

producing the "proof of good faith" concerning the suspicion that the

applicant had committed insurance fraud which also involved the

suspicion of murder. The Court then concluded that on the basis of

evidence produced by him the accused had succeeded in producing this

proof and consequently acquitted him.

In the course of the deliberation of the judges (which in the

Canton of Zurich is public) following the court hearing, one of the

judges stated as follows:

[Translation]

"I am convinced that it was insurance fraud. As this is

inconceivable without the blowing up of the ship 'Lucona',

the ship must have been blown up."

[Original]

"Ich bin davon überzeugt, dass ein Versicherungsbetrug

vorliegt. Weil dieser ohne Sprengung des Schiffes 'Lucona'

nicht denkbar ist, muss das Schiff gesprengt worden sein."

The applicant lodged two pleas of nullity

(Nichtigkeitsbeschwerden) with the Zurich Court of Cassation

(Kassationsgericht) and the Federal Court (Bundesgericht) respectively.

On 22 March 1990 the Zurich Court of Cassation dismissed the

applicant's plea of nullity. The Court held inter alia that the

statement of the judge during the public deliberations did not appear

in the judgment itself and statements during deliberations could not

be considered to be of such relevance as to amount to a violation of

the presumption of innocence. The Court further held that there were

no indications that the judge who made the statement was biased.

Against the judgment of the Zurich Court of Cassation the

applicant introduced a public law appeal (staatsrechtliche Beschwerde).

Meanwhile the Federal Court on 23 April 1990 partly upheld the

applicant's plea of nullity. The Court found that the Court of Appeal

had acted correctly in allowing Mr. U. to adduce exonerating evidence.

It then examined the criteria to be applied to the proof of good faith

in the present case and emphasised that the media, in reporting

criminal proceedings, also had to respect the presumption of innocence

as laid down in Article 6 para. 2 of the Convention. The Court found

that Mr. U. had not made sufficiently clear that he was expressing a

suspicion of insurance fraud; rather he had presented the events as

facts. As Mr. U. had expressed more than a suspicion, the Court of

Appeal had breached Federal law in that it found that the accused had

succeeded in establishing the "proof of good faith". In respect of the

suspicion of murder as expressed by Mr. U. in his article, the Federal

Court found that the Court of Appeal correctly assumed the "proof of

good faith" as produced because the accused had expressed no more than

a suspicion.

On 10 May 1990 the Federal Court decided not to admit the

applicant's public law appeal as it had already dealt in substance with

the complaint in its decision of 23 April 1990.

Proceedings were then resumed before the Zurich Court of Appeal.

On 31 May 1990 the Court made an order for the taking of evidence

(Beweisbeschluss) wherein it considered that the Federal Court's

judgment only concerned the "proof of good faith" produced by the

accused but did not exclude the possibility of adducing the "proof of

truth". In the absence of a conviction of the accused such a proof of

truth could successfully be produced by demonstrating that the

applicant's conviction could be expected with "practical certainty"

(praktisch sicher). The Court of Appeal therefore had to allow the

accused to deliver such evidence. Whether or not such

"practical certainty" could be established in the present case was a

matter to be decided later in the proceedings.

On 31 May 1990 the applicant introduced a public law appeal with

the Federal Court against the Court of Appeal's order for evidence to

be taken, invoking Article 6 para. 2 of the Convention.

On 1 June 1990 the Federal Court advised the applicant to

withdraw his public law appeal as the criminal proceedings instituted

by him against Mr. U. would be time-barred on 5 June 1990 so that the

Federal Court could no longer deal with the matter.

The applicant withdrew his public law appeal, which was struck

off the Federal Court's list on 8 June 1990.

Section 173 paras. 1 to 3 of the Swiss Penal Code read as

follows:

[Translation]

"(1) Whoever accuses or suspects before a third person

another person of dishonourable conduct or of other

facts likely to damage the accused or suspected

person's reputation,

whoever spreads such an accusation or suspicion,

shall be punished, upon complaint [of the

injured party], by imprisonment of up to six

months or by a fine.

(2) If the accused proves that the statement made or

spread by him is true or that he had serious

reasons for considering it in good faith to be

true, he shall not be punished.

(3) The accused shall not be allowed to produce

evidence and shall be punishable for such

statements if they were made or spread without

any motive of safeguarding the public interest

or otherwise without justification, but mainly

with the intention of slander, in particular if

the statement concerns the other person's

private or family life."

...

[German]

"(1) Wer jemanden bei einem andern eines

unehrenhaften Verhaltens oder anderer Tatsachen,

die geeignet sind, seinen Ruf zu schädigen,

beschuldigt oder verdächtigt,

wer eine solche Beschuldigung oder Verdächtigung

weiterverbreitet,

wird, auf Antrag, mit Gefängnis bis zu sechs

Monaten oder mit Busse bestraft.

(2) Beweist der Beschuldigte, dass die von ihm

vorgebrachte oder weiterverbreitete Äusserung

der Wahrheit entspricht, oder dass er ernsthafte

Gründe hatte, sie in guten Treuen für wahr zu

halten, so ist er nicht strafbar.

(3) Der Beschuldigte wird zum Beweis nicht

zugelassen und ist strafbar für Äusserungen, die

ohne Wahrung öffentlicher Interessen oder

sonstwie ohne begründete Veranlassung,

vorwiegend in der Absicht vorgebracht oder

verbreitet werden, jemandem Übles vorzuwerfen,

insbesondere, wenn sich die Äusserungen auf das

Privat- oder Familienleben beziehen."

Under Article 178 of the Penal Code, prosecution for these

offences is subject to a two-year limitation period. However, the

running of the period is interrupted and commences afresh whenever a

measure of investigation is taken. For offences involving an attack

on a person's honour there is an "absolute" limitation after four

years, that is twice the normal limitation period (Article 72 para. 2

of the Criminal Code).

In Switzerland, such offences are only prosecuted upon a

complaint (Strafantrag) by the injured party. In the Canton of Zurich,

as in several other Cantons, the proceedings are known as

"Privatstrafklageverfahren" (Article 287 of the Zurich Code of Criminal

Procedure): it is for the injured party, not the State authorities,

to take the initiative. The public prosecutor does not take part in

the proceedings.

COMPLAINTS

1. The applicant complains that he did not have a fair trial as

required by Article 6 para. 1 of the Convention in that the Zurich

Court of Appeal did not sufficiently deal with the applicant's

arguments. The applicant had presented statements made by the

surviving members of the crew of the ship "Lucona" which would indicate

that the cause for the sinking of the ship had not been an explosion,

thus casting doubt on the suspicion that the applicant had committed

insurance fraud.

2. The applicant further complains that a judge of the Zurich Court

of Appeal during the public deliberations on the applicant's appeal on

31 October 1989 had made a statement which was incompatible with the

presumption of innocence as enshrined in Article 6 para. 2 of the

Convention. The applicant also complains that the decision of the

Zurich Court of Appeal of 31 May 1990 to allow the accused to adduce

evidence was incompatible with the presumption of innocence.

3. Under Article 13 of the Convention the applicant complains that

the Federal Court refused to deal with his public law appeal after the

criminal proceedings instituted by the applicant had become

time-barred.