W.O. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 28286/95
by W. O.
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
S. TRECHSEL
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, 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 18 August 1995 by
W. O. against Switzerland and registered on 22 August 1995 under file
No. 28286/95;
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
25 March 1997 and the observations in reply submitted by the
applicant on 7 May 1997;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The applicant, a Swiss citizen born in 1921, is a retired notary
residing in Einsiedeln in Switzerland. Before the Commission he is
represented by Mr F. Huwyler, a lawyer practising in Schwyz in
Switzerland.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Until his retirement in 1986 the applicant was notary and real
property administrator (Grundbuchverwalter) of the Einsiedeln District.
On 8 April 1986 the Einsiedeln District Council (Bezirksrat)
filed a criminal action (Strafklage) against the applicant on suspicion
of having embezzled money (Veruntreuung) and forged documents
(Urkundenfälschung) on many occasions. For instance, acting in his
official functions the applicant misappropriated and disloyally managed
monies entrusted to him. When registering real property transactions
he had on over a hundred occasions stated the wrong date. He had also
annulled servitudes (Dienstbarkeiten) concerning other persons in his
own favour. The facts leading to these charges went back to 1979.
Criminal investigations were then instituted as a result of which
the applicant was remanded in custody in August 1986. Among the
investigations undertaken, it appears that a request for information
was filed with a German court.
On 27 November 1987, during the investigations, the applicant's
lawyer requested, with reference to the complexity of the case, an
extension of the time-limit until the end of 1987 for consulting the
case-file, and until 15 January 1988 for filing a supplementary
request. On 31 December 1987 he requested, with reference, inter alia,
to an illness, an extension of the time-limits until 31 January and
15 February 1988, respectively. On 1 February 1988 he requested an
extension of the time-limit until 29 February 1988 for filing a
supplementary request.
The investigations were concluded on 28 July 1988 when the
proceedings were transferred to the Public Prosecutor's Office
(Staatsanwaltschaft).
On 29 September 1988 the Public Prosecutor's Office filed the
bill of indictment (Anklage) against the applicant. Proceedings were
then continued before the Criminal Court (Strafgericht) of the Canton
of Schwyz.
On 7 November 1988 the applicant's lawyer requested a
prolongation of the time-limit to file requests for the taking of
evidence until the end of November. On 30 November 1988, he requested
a further prolongation until 10 December 1988.
The trial before the Criminal Court was fixed for 7 February
1989, whereupon the applicant's lawyer requested the fixing of a new
date in the second half of the month.
The trial was then held on 23 and 24 February 1989.
On 17 March 1989 the Criminal Court gave its decision in which
it convicted the applicant, inter alia, of embezzlement and forging
documents, and sentenced him to 16 months' imprisonment, suspended on
probation for a period of two years. He was also sentenced to a fine
of 6,000 Swiss Francs. The applicant was acquitted of other charges;
in respect of two charges the case was referred back to the prosecuting
authorities.
The applicant's appeal was partly upheld by the Cantonal Court
(Kantonsgericht) of the Canton of Schwyz on 15 May 1990. The Court
found that the Criminal Court, rather than referring certain charges
back to the prosecuting authorities, should itself have decided the
issues. As a result, the Cantonal Court quashed the previous decision.
Proceedings were resumed before the Criminal Court which on
26 July 1990 ordered the Investigation Office (Verhöramt) to conduct
evidence proceedings. On 17 April 1991 the investigations were
concluded.
On 12 December 1991 the Public Prosecutor's Office filed a
supplementary bill of indictment (ergänzende Anklage).
On 23 December 1991 the applicant's lawyer requested a period of
three weeks to file his observations.
In March 1992, the applicant's lawyer was requested to comment
on the case-file and file any requests for the taking of evidence
before the end of the month. On 30 March 1992 he filed a request to
postpone this time-limit until 15 April 1992.
The trial was held before the Criminal Court on 21 and 22 May
1992. The decision of the Criminal Court, dated 21 and 22 May 1992,
convicted the applicant, inter alia, of the offences of embezzlement
and forging documents, and acquitted him of other offences. He was
sentenced to 21 months' unconditional imprisonment and a fine of
6,000 Swiss Francs (CHF).
The judgment was served on the applicant on 28 October 1992.
Against this judgment the applicant filed an appeal with the
Cantonal Court on 4 November 1992.
An appeal hearing was held before the Cantonal Court on 3 May
1994. The Court's decision, issued on the same day, sentenced the
applicant to 24 months' unconditional imprisonment.
When deciding on the punishment, the Cantonal Court considered
that the applicant had complained of the length of the proceedings,
having so far lasted six years and 10 months. While such a period
appeared long, the Court considered that the case was complex and the
applicant had constantly presented new versions of the facts. Even in
the appeal proceedings the applicant had requested referring the case
back to the previous instance, and he had not objected when on 15 May
1990 the case had been referred back to the Criminal Court.
Nevertheless, the length of the proceedings constituted a mitigating
element when deciding on the punishment, though the previous sentence
of 21 months had been too mild.
On 4 July 1994 the applicant filed a public law appeal (staats-
rechtliche Beschwerde) and his plea of nullity (Nichtigkeitsbeschwerde)
with the Federal Court (Bundesgericht). These appeals were dismissed
by the Court in two decisions dated 27 January 1995. The decisions
were served on the applicant on 22 March 1995.
In its decisions, the Court referred, inter alia, to the
applicant's complaint under Article 6 para. 1 of the Convention about
the undue length of the proceedings. The Court found that the Cantonal
Court had duly considered the length as a mitigating circumstance and
that, according to the findings of the Cantonal Court, the applicant
himself had accepted that the proceedings before the Cantonal Court had
not lasted unduly long.
On 13 July 1995 the Petitions Commission (Petitionskomission) of
the Canton of Schwyz dismissed the applicant's request for pardon,
there being no indication of serious miscarriage of justice.
On 8 February 1996 the Administrative Court of the Canton of
Schwyz decided, with reference to two medical expert opinions, that in
view of the applicant's depression he was unable to serve his sentence
(nicht hafterstehungsfähig).
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
of the undue length of the proceedings. He did not contribute to the
length, whereas the prosecuting authorities committed many mistakes.
He refers to the psychological stress which he suffered.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 August 1995 and registered
on 22 August 1995.
On 17 January 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 25 March
1997. The applicant replied on 7 May 1997.
Considerations
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the undue length of the proceedings. He did not
contribute to the length, whereas the prosecuting authorities committed
many mistakes. He refers to the psychological stress which he
suffered.
Article 6 para. 1 (Art. 6-1) of the Convention states, as far as
relevant:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
..."
The Government contend that the applicant's complaints are
inadmissible as being manifestly ill-founded. It is submitted that the
proceedings to be examined under Article 6 para. 1 (Art. 6-1) of the
Convention commenced in June 1986 when the applicant was briefly
remanded in custody, and ended on 22 March 1995 when the Federal
Court's judgments were served on the applicant.
The Government consider that, while the proceedings may appear
long, in fact, if the different stages are assessed independently, they
were conducted rapidly. Even the investigations, which were originally
pursued in the wrong direction, were conducted with care and speed,
which explains why later they had to be complemented. Indeed, nowhere
in his submissions does the applicant sufficiently point to concrete
delays in the proceedings.
The Government submit that the complexity of the case contributed
to the length of the proceedings. Thus, the case comprised a large
number of offences, in respect of which there was little case-law, with
facts going back to 1979, and involving two complainants, i.e. the
Einsiedeln District and a private person. The applicant himself had
not kept any accounts, and an impressive number of documents had to be
examined in detail. Investigations were even undertaken in Germany.
Reference is also made to the volume of the various judgments, e.g. the
judgment of the Criminal Court of 17 March 1989 comprising 102 pages,
with minutes of the hearing amounting to 246 pages; the judgment of the
Cantonal Court of 15 May 1990 comprising 87 pages; the second judgment
of the Criminal Court of 21/22 May 1992 comprising 61 pages, with
minutes of the hearing amounting to 67 pages; and the judgment of the
Cantonal Court of 3 May 1994 of 83 pages. Even the decision of the
Administrative Tribunal of 8 February 1996 amounted to 22 pages.
The Government further contend that the applicant himself
contributed to the length of the proceedings. Thus, he at times
modified his version of the facts, and on various occasions -
27 November and 31 December 1987, 1 February and 7 and 30 November
1988; 31 January and 23 December 1991; and 30 March 1992 - he requested
an extension of the time-limit. Moreover, in the second set of
proceedings, the Cantonal Court actually intended to fix the hearing
in February 1994, though the applicant's lawyer was too busy, and the
hearing was then fixed for 3 May 1994.
Finally, the Government point out that in its judgment of 3 May
1994 the Cantonal Court duly considered the length of proceedings when
determining the applicant's sentence. The Government refer in this
case to the comparable case of R.B. v. Switzerland where the Commission
found no violation of Article 6 para. 1 (Art. 6-1) of the Convention,
as that applicant's sentence had been reduced as a result of the length
of the proceedings (see Comm. Report 24.5.91, para. 60).
The applicant submits that he was first officially informed of
the criminal proceedings instituted against him on 8 April 1986, though
he suspects that investigations were already commenced beforehand, even
as early as 1984. The judgment of the Criminal Court of 19 September
1988 later had to be set aside in view of numerous procedural errors.
In any event, the applicant was acquitted in respect of a substantial
number of charges. The proceedings in 1989 were nerve-racking, as the
investigations had to commence again.
The applicant contends that the fact that the first proceedings
had to be declared invalid and new investigations carried out, leading
to a new indictment, constitutes in itself a ground for assuming that
the proceedings lasted too long. In any event, the fact that two sets
of proceedings were conducted should have been sufficient reason to
expedite the individual stages. However, after completion of the
second investigation, a further eight months elapsed until the
supplementary bill of indictment was filed on 12 December 1991. It
took another five months for the Criminal Court to deliver its second
judgment of 21/22 May 1992, and a further 18 months passed, after the
appeal statement was filed, until the Cantonal Court gave its judgment
on 3 May 1994.
The applicant emphasises that his lawyer made every effort to
expedite the proceedings, and did not request any unnecessary
extensions of time-limits. In any event, the extensions were of short
duration, and the applicant's lawyer was never reproached during the
proceedings for having made excessive use of his rights as defence
lawyer. The fact that the applicant lodged appeals was something he
had every right to do in order to defend himself.
In the applicant's view, the domestic courts on the whole
admitted that the proceedings had lasted too long. However, they
failed to recognise that a period of eight years, involving a serious
psychological and physical burden, was a punishment in itself. The
courts were obviously overtaxed by the entire proceedings, and he
cannot be blamed for this.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application as a whole. The
Commission concludes, therefore, the application is not manifestly ill-
founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
Order
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber