R.M.D. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 19800/92
by R. M. D.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 18 October 1995, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 March 1992 by
R. M. D. against Switzerland and registered on 6 April 1992 under file
No. 19800/92;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
28 April 1995 and the observations in reply submitted by the
applicant on 16 May 1995;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant, a Swiss citizen born in 1965, resides in Benglen
in Switzerland. Before the Commission he is represented by Mr. Bruno
Häfliger, a lawyer practising in Lucerne.
In January 1992 the Lucerne Cantonal Police (Kantonspolizei)
requested the Zurich Cantonal Police to arrest the applicant who was
suspected of having committed a burglary in the Canton of Lucerne. On
13 January 1992 the Zurich Cantonal Police arrested the applicant and
remanded him in custody in Uster in the Canton of Zurich. It appears
that the applicant was suspected of having committed thefts and other
offences in the Cantons of Zurich, Lucerne, Bern and Aargau.
On 15 January 1992 the applicant requested his immediate release
from custody. He was released from Uster prison on 17 January 1992.
On the same day the applicant was transferred to the Canton of
Lucerne where, still on 17 January 1992, the District Governor
(Amtsstatthalter) ordered his detention on remand.
On 20 January 1992 the applicant's lawyer telephoned the Willisau
District Prosecutor and requested that he, the lawyer, be appointed as
defence counsel and permitted to see the applicant on 21 January 1992.
The District Prosecutor replied that the applicant would be transferred
on 21 January 1992 to the District Court (Richteramt) of Aarwangen in
the Canton of Bern for further investigations.
On 21 January 1992 the District Governor of Willisau confirmed
in writing that the applicant had been transferred to Aarwangen.
The applicant's lawyer intended to contest the decision to detain
the applicant in Aarwangen. However, he was told by the Aarwangen
investigating judge on the telephone that the latter had not himself
issued a detention order as the order issued on 17 January 1992 by the
Willisau District Governor was still valid.
On 23 January 1992 the applicant filed an appeal (Rekurs) with
the Court of Appeal (Obergericht) of the Canton of Lucerne against the
detention order of 17 January 1992.
On 24 January 1992 the applicant was transferred to the Canton
of Glarus as the Glarus investigating judge (Verhörrichter) wished to
question the applicant about a burglary in Glarus. On the same day the
Glarus investigating judge issued a detention order.
On 27 January 1992 the Lucerne Court of Appeal struck the appeal
of 23 January 1992 off its list of cases as the applicant had been
transferred to Aarwangen on 21 January 1992 and was therefore no longer
detained in Lucerne; it had therefore to be assumed that the detention
order of 17 January 1992 had become obsolete (dahingefallen).
On 31 January 1992 the applicant filed a public law appeal
(staatsrechtliche Beschwerde) against the decision of the Court of
Appeal of 27 January 1992.
On 3 February 1992 the applicant was transferred from the Canton
of Glarus to the Canton of St. Gallen where he was detained on remand
on suspicion of having committed burglary in the Canton of Glarus.
On 12 February 1992 the Federal Court (Bundesgericht) dismissed
the applicant's public law appeal. The decision stated inter alia:
<Translation>
"The view can reasonably be maintained that the Court of
Appeal no longer need consider the merits of an appeal against
a detention order if the detention in the Canton of Lucerne ends
during the pending appeal proceedings, either as the accused is
released or as he is detained in another Canton and the detention
on remand in the Canton of Lucerne becomes obsolete. The Federal
Court has proceeded in a similar manner. Thus, disregarding
exceptional cases, (the Federal Court) will regard as obsolete
and strike off its list an appeal against detention if the
applicant has been released during the pending Federal Court
proceedings ... The explanation for this case-law lies in the
fact that in such a case there is no longer a present practical
interest in a decision on the appeal against detention, not even
in respect of any claims for compensation and satisfaction ...
These considerations may also be applied to cantonal appeal
proceedings. The applicant can still maintain in any subsequent
compensation proceedings that he was unlawfully arrested in the
Canton of Lucerne."
<German>
"Es lässt sich mit sachlichen Gründen die Ansicht
vertreten, das Obergericht müsse einen Haftrekurs nicht mehr
materiell behandeln, wenn die Haft im Kanton Luzern während der
Hängigkeit des Rekursverfahrens beendet wird, sei es durch
Freilassung des Angeschuldigten oder durch dessen Inhaftierung
in einem anderen Kanton, mit welcher die Untersuchungshaft im
Kanton Luzern dahinfällt. Das Bundesgericht geht in analoger
Weise vor, schreibt es doch - abgesehen von Ausnahmefällen -
eine Haftbeschwerde als gegenstandslos geworden ab, wenn der
Beschwerdeführer während der Hängigkeit des bundesgerichtlichen
Verfahrens aus der Haft entlassen wird ... Es begründet diese
Rechtsprechung damit, es bestehe in einem solchen Fall kein
aktuelles praktisches Interesse mehr an der Behandlung der
Haftbeschwerde, und zwar auch nicht im Hinblick auf die
Geltendmachung von Schadenersatz- und Genugtuungsansprüchen ...
Diese Überlegung lässt sich auch auf ein kantonales
Rekursverfahren übertragen. Der Beschwerdeführer kann noch in
einem allfälligen Entschädigungsverfahren geltend machen, er sei
im Kanton Luzern zu Unrecht verhaftet worden."
Insofar as the applicant complained that the authorities, by
conducting a sort of joint procedure (Sammelverfahren), deprived him
of his constitutional and Convention rights, the Court found that it
would have been preferable if the Willisau District Prosecutor had
declared in writing that the applicant was no longer detained in the
Canton of Lucerne. However, this could not change the conclusion that
the contested decision of the Lucerne Court of Appeal raised no issue
under Article 5 para. 4 of the Convention, "as the applicant already
when filing his appeal was no longer remanded in custody in the Canton
of Lucerne" ("weil sich der Beschwerdeführer bereits bei Einreichung
des Rekurses nicht mehr im Kanton Luzern in Untersuchungshaft befand").
Finally, the Court declared inadmissible the applicant's
complaint that he had not been officially represented by a lawyer, as
this matter had not been the subject of the appeal proceedings before
the Court of Appeal.
On 21 February 1992 the applicant was transferred from the Canton
of St. Gallen to the Canton of Schwyz where he was detained on remand.
His request for release from detention in the Canton of Schwyz
of 24 February 1992 was rejected on 25 February 1992.
On 25 February 1992 the applicant was transferred from the Canton
of Schwyz to the Canton of Zurich.
On 3 March 1992 the applicant was transferred to the Canton of
Aargau where he was detained on remand. Subsequently, he was
transferred to the Canton of Zurich. He was released from detention
on 13 March 1992.
COMPLAINTS
The applicant complains under Article 5 para. 4 of the Convention
that the Lucerne Court of Appeal and the Federal Court did not deal
with his appeal against his detention on remand, as he was no longer
detained in the Canton of Lucerne. This joint procedure
(Sammelverfahren), which moves the applicant from one Canton to
another, deprives him of his rights. The applicant points out that he
was never formally released from detention in the Canton of Lucerne.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 March 1992 and registered
on 6 April 1992.
On 17 January 1995 the Commission (Second Chamber) decided to
communicate the application to the respondent Government and invite
them to submit observations on the admissibility and merits of the
application.
The Government's written observations were submitted on 28 April
1995. The applicant replied on 16 May 1995.
Considerations
THE LAW
1. The applicant complains that the Lucerne Court of Appeal and the
Federal Court did not deal with his appeal against his detention on
remand, as he was no longer detained in the Canton of Lucerne. He also
submits that he was never formally released from detention in the
Canton of Lucerne. This joint procedure (Sammelverfahren), which moves
the applicant from one Canton to another, deprives him of his rights
under Article 5 para. 4 (Art. 5-4) of the Convention which states:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
2. The Government contest that the applicant has complied with the
requirements of Article 26 (Art. 26) of the Convention.
The Government recall at the outset that each Canton has its own
Code of criminal procedure. In general, the powers of the Swiss courts
comply with the requirements of Article 5 para. 4 (Art. 5-4) of the
Convention.
The Government further note that the present applicant is in fact
complaining, on the one hand, of the proceedings as a whole; and, on
the other, that the Court of Appeal of the Canton of Lucerne and the
Federal Court did not deal with his complaint.
As regards the applicant's complaints about the proceedings as
a whole, the Government point out that in his public law appeal before
the Federal Court he only complained about detention in the Canton of
Lucerne, not of the detention in the Cantons of Zurich, Bern and Glarus
where procedures compatible with Article 5 para. 4 (Art. 5-4) of the
Convention would have been at his disposal.
As regards detention in the Canton of Lucerne the Government
refer to the Federal Court's decision of 12 February 1992 according to
which the applicant was free to institute compensation proceedings for
his unlawful detention. However, he failed to do so. Such proceedings
would not have been in conflict with the requirements of Article 5
paras. 4 and 5 (Art. 5-4, 5-5) of the Convention. In particular, the
court concerned could have examined the legality of his detention.
The applicant generally contests the Government's submissions.
The State as a whole must ensure as a party to the Convention that the
Convention provisions can be complied with on the whole territory of
Switzerland.
The Commission recalls its case-law under Article 26 (Art. 26)
of the Convention according to which Article 26 (Art. 26) of the
Convention requires the exhaustion of those remedies which relate to
the breaches of the Convention alleged and at the same time can provide
effective and sufficient redress (see No. 13057/87, dec. 15.3.89,
D.R. 60 p. 243).
In the present case the Commission notes that in the domestic
proceedings the applicant complained before the Lucerne Court of Appeal
and the Federal Court about his detention on remand in the Canton of
Lucerne; he also complained about the joint procedure which deprived
him of his constitutional and Convention rights. On 12 February 1992
the Federal Court in last resort nevertheless dismissed his complaint
as he was no longer detained in the Canton of Lucerne.
Before the Commission the applicant is now complaining under
Article 5 para. 4 (Art. 5-4) of the Convention that the Lucerne Court
of Appeal and the Federal Court did not deal with his appeal against
his detention on remand, as he was no longer detained in the Canton of
Lucerne.
In the Commission's opinion, there being no further domestic
remedy available against the Federal Court's decision, the applicant
is entitled to complain before the Commission about the decision of the
Federal Court.
It is true that in the Government's submissions, the applicant
should subsequently also have filed further complaints in other
Cantons. In the Commission's opinion, however, had the applicant,
after his transfer to another Canton, again filed a complaint about
detention on remand, he could reasonably expect that the Federal Court
would again have dismissed his appeal on the ground that he had again
been transferred to another Canton. The applicant could not,
therefore, be expected to file further appeals in other Cantons.
The Government also submit that the applicant could have
introduced an action for compensation before the courts of the Canton
of Lucerne. The Commission notes, however, that the applicant, when
filing his appeal with the Court of Appeal of the Canton of Lucerne and
the Federal Court, was requesting his release from detention. It is
not in dispute that, had these appeals been successful, the applicant
would have been released from detention on remand. The Commission
finds therefore that the applicant could not be expected to file yet
a further action, now for compensation. Furthermore, an action for
compensation could only be an effective remedy in a case where the
alleged violation did in fact cause some material damage to the person
concerned. However, in the present case it does not transpire that the
applicant suffered any pecuniary disadvantages on account of the
absence of a remedy under Article 5 para. 4 (Art. 5-4) of the
Convention.
The application cannot therefore be declared inadmissible for
non-exhaustion of domestic remedies within the meaning of Article 26
(Art. 26) of the Convention.
3. The Commission, having examined these complaints, finds that they
raise serious questions of fact and law which are of such complexity
that their determination should depend on an examination of the merits.
The application cannot, therefore, be regarded as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other ground for declaring it inadmissible has been
established.
Order
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)