36833/97
H.G. gegen Schweiz
Nichtzulassungsentscheid no. 36833/97, 15 novembre 2001
The European Court of Human Rights (Third Section), sitting on 15 November 2001 as a Chamber composed of
Mr G.Ress, President,
Mr I. Cabral Barreto,
Mr L. Wildhaber,
Mr L. Caflisch,
Mr R. Türmen,
Mr B. Zupancic,
Mr K.Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 2 July 1997 and registered on 10 July 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS The applicant, H.G., is a German citizen, born in 1958, and living in Altendorf (Switzerland). He is represented before the Court by Mr M. Ziegler, a lawyer practising in Lachen. The respondent Government are represented by their agent, Mr P. Boillat, Head of the International Affairs Division of the Federal Office of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a sales representative for a fashion company. From 1988 until 1993 he enabled a Hong Kong supplier to transfer funds to Switzerland. The supplier eventually informed the applicant's superiors of the transfers, whereupon, on 24 March 1997, the company filed a criminal report(Strafanzeige) against the applicant on account of disloyal business conduct (ungetreue Geschäftsführung).
On 3 April 1997 the Investigating Office(Verhöramt) of the Canton of Schwyz issued a warrant of arrest against the applicant. He was suspected in particular of having induced his company to purchase merchandise from the Hong Kong supplier from which, in return, he had requested and obtained up to 200,000 Swiss francs.
On 9 April 1997 the applicant was remanded in custody. According to the order of arrest, there was a danger that he would collude with other persons during the investigations.
In the ensuing proceedings the applicant was represented by a lawyer, though he was not permitted freely to communicate with his lawyer until 28 April 1997. It furthermore appears that, after his arrest, his bank accounts were blocked.
During the applicant's detention, he had the possibility of taking a daily walk around the town of Schwyz. During this walk he had to wear handcuffs.
On 10 April 1997 the applicant was questioned by the Investigating Office in the presence of his lawyer. On 11 April 1997 the applicant's lawyer transmitted via fax a complaint about the detention on remand to the President of the Cantonal Court(Kantonsgericht) of the Canton of Schwyz. On the same day the applicant's lawyer was informed in reply that a legal statement transmitted via fax lacked the necessary personal signature. The lawyer then forwarded a signed statement which reached the President on 14 April 1997. The latter fixed a hearing for 16 April. Also on 14 April 1997 the applicant filed a further complaint about the delay in fixing the hearing, as he had filed his complaint on 11 April.
On 15 April 1997 the applicant was heard by the Investigating Office in the presence of his lawyer.
On 16 April 1997 the President of the Cantonal Court heard the applicant, his lawyer and the investigating judge. The President also visited the applicant's prison cell. On the same day, the President dismissed the request of 11 April, the decision being served on the applicant on 18 April 1997.
In his decision the President found that the delay in dealing with the applicant's complaint resulted from the applicant's failure personally to sign that document. Insofar as the applicant complained that he was unable to consult the case-file, the President noted that the applicant had seen certain annexes to the criminal report of 24 March 1997; the minutes of the applicant's interrogations on 10 and 15 April; a letter of the Hong Kong firm of 1994; and part of the minutes of the interrogation of a certain Ch.R. To the extent that the applicant criticised that he was not able freely to communicate with his lawyer and was denied free legal aid, the President found that pursuant to Section 140 of the Code of Criminal Procedure(Strafprozessordnung) the applicant should have filed a complaint with the Public Prosecutor's Office and, subsequently, with the Cantonal Court, rather than with its President.
In his decision, the President then examined, and confirmed, that there was an urgent suspicion that the applicant had committed the offence at issue. Finally, the President dismissed the applicant's grievances about the conditions of imprisonment, namely the complaints that he lacked mineral water; that the food consisted of too much meat; and that there was insufficient light in the cell. To the extent that the applicant complained that upon his arrest he had not been able to consult a doctor about a suspected skin cancer, the President found that the applicant had meanwhile been examined by a prison doctor. The President also ordered that the applicant be issued a lamp and cleaning materials.
On 18 April 1997 the applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).
In his public law appeal the applicant complained, inter alia, of breaches of Article 5 §§ 3 and 4 of the Convention. He submitted that the President of the Cantonal Court had had the entire case-file at his disposal, whereas he had been refused access thereto. It did not suffice if, as the President stated, he, the applicant, had seen all relevant documents, since the President's decision could also have been influenced by other documents. For instance, his decision of 16 April 1997 mentioned the date of the criminal report originally filed against him, a document which the applicant had never seen. The applicant further complained of the conditions of detention, namely in respect of the meals and of the doctor provided, who had been a general practitioner and not a skin cancer specialist.
The Federal Court transmitted the applicant's public law appeal for observations to the Cantonal Court and the Investigating Office of the Canton of Schwyz.
On 24 April 1997 the applicant filed a request for consultation of the case-file. The request was refused by the Federal Court on 28 April 1997.
Also on 28 April 1997, the President of the Cantonal Court of the Canton of Schwyz dismissed the applicant's further request for release from detention, though he ordered the prison administration to allow the applicant to take a daily walk of one hour without handcuffs. The decision considered that having to take walks with handcuffs was unacceptable from the point of view of human dignity, and that there was no danger that the applicant would abscond.
Another request filed by the applicant with the Federal Court for consultation of the case-file was dismissed by that court on 1 May 1997, though the applicant was forwarded a copy of the observations of the Cantonal Court and the Investigating Office.
On 5 May 1997 the applicant filed with the Federal Court his reply to the observations of the Cantonal Court and the Investigating Office, as well as further submissions. He complained, inter alia, that he had not been permitted to communicate with his lawyer until 28 April 1997; that he had been refused an officially appointed lawyer; and that, contrary to Article 3 of the Convention, he had been publicly led around in handcuffs and had been chained publicly together with a suspected violent criminal.
The applicant's public law appeal was dismissed by the Federal Court on 20 May 1997, the decision being served on 27 May.
In its decision, the Federal Court found that the Investigating Office fulfilled the requirements under Article 5 § 3 of the Convention. It held that the Investigating Office was independent in that it was not effectively supervised by the Public Prosecutor's Office. Insofar as the President of the Cantonal Court had only heard the applicant belatedly, on 16 April 1997, the court noted that the applicant was himself responsible for the delay as he had not personally signed his request. To the extent that the applicant complained about insufficient consultation of the case-file, the court considered that the applicant had been able to consult all documents upon which the decision of the President of the Cantonal Court of 16 April 1997 had been based.
The Federal Court furthermore considered that the applicant could no longer claim a practical interest in his complaint about the conditions of detention, as the latter had meanwhile been ameliorated. To the extent that he requested free legal aid and an officially appointed lawyer, the court considered that he was at most lacking funds temporarily.
Meanwhile, the applicant's lawyer telephoned the Investigating Office about the applicant's continuing walks in handcuffs. On 21 May 1997 the Investigating Office sent a fax to the prison administration according to which the "applicant's lawyer had withdrawn his agreement to a walk in handcuffs outside the village, for which reason the operation is cancelled. The measures so far ordered for a walk without handcuffs shall apply again." By a letter of 22 May 1997, the applicant's lawyer pointed out to the Investigating Office that, when previously speaking with that Office, he had in fact referred to the decision of the President of the Cantonal Court of 28 April 1997 according to which there should no longer be any handcuffs. The lawyer requested compliance with this decision.
Following further requests for release from detention, the applicant was released on 9 June 1997.
B. Relevant domestic law
The Code of Criminal Procedure of the Canton of Schwyz lists in Section 26 the grounds for detention on remand and in Section 27 provides, inter alia, that the investigating judge shall be competent to impose such detention. Section 140 envisages the possibility of a complaint in proceedings before the Investigating Office to the Public Prosecutor's Office and subsequently to the Cantonal Court, though this remedy does not apply if other remedies are available. In this respect, Section 28 provides for an appeal to the President of the Cantonal Court against the warrant of arrest; the conditions of detention; and the refusal of release from detention.
Section 42 of the Judicial Organisation Act(Gerichtsordnung) of the Canton of Schwyz provides that the Government of the Canton of Schwyz shall elect the investigating judges, and Section 45 states that the Public Prosecutor's Office shall supervise the Investigating Office. Section 44 § 2 states that the Investigating Office shall be competent for conducting the investigations. According to Section 37 § 1, the Public Prosecutor's Office will raise the charges at the trial before the court.
According to the Federal Court's case-law, a complaint about unlawfulness of detention may no longer be filed after release from detention. However, subsequent complaints may be raised in an action for compensation before the Federal Court (see Arrêts du Tribunal fédéral [ATF] 125 Ia 394; 110 Ia 140; 109 I a 170).
COMPLAINTS
The applicant raises various complaints under Article 3 of the Convention. He complains that during his detention on remand he had to take his walks while wearing handcuffs in public. The applicant further complains that his bed in his prison cell was too small; that the blanket was insufficient in view of the temperature in the cell; and that he lacked sufficient light, reading matter, balanced nourishment and specialised medical care.
The applicant complains that he was not brought "promptly" before a "judge or other officer authorised by law" within the meaning of Article 5 § 3 of the Convention, in particular since the Investigating Office is not an independent body. He refers in this respect to the 1996 Report of the Cantonal Court of the Canton of Schwyz according to which "the Public Prosecutor's Office visited all ... the Investigating Offices ... Backlog files(Ladenhüter) or criminal cases raising problems were discussed, time-limits and the further procedure were fixed."
Under Article 5 § 3 of the Convention, the applicant also complains that he was detained on remand without any necessity for a period of two months.
He complains, first, that he was not able freely to communicate with his lawyer until 28 April 1997 and that, during these investigations, he was not granted an officially appointed lawyer. He also submits that in the proceedings before the Federal Court he did not have an officially appointed lawyer. He points out that his bank accounts are blocked and that the court proceedings may last many years.
Next, he complains that he was not able to consult the entire case-file. The domestic courts had the entire case-file at their disposal, even if in their decisions they only referred to certain documents.
The applicant also complains that the President of the Cantonal Court only dealt with his request for release from detention ten days after it had been filed.
Under Article 6 § 1 of the Convention the applicant complains that his correspondence with his lawyer was read by the authorities. In this respect, the applicant also invokes Article 8 of the Convention.
Under Article 13 of the Convention, the applicant complains that after his release from detention on remand he no longer had a possibility to complain about the conditions of detention.
THE LAW
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
a) The applicant complains that he had to take his walks in public while wearing handcuffs.
The Government contend that this complaint is inadmissible on two grounds. On the one hand, the applicant failed to comply with the requirements under Article 35 § 1 of the Convention. In particular, the decision of the President of the Court of Appeal of the Canton of Schwyz did not deal with this matter in his decision of 16 April 1997, and it was only before the Federal Court in his reply of 5 May 1997 to the observations of the Cantonal Court and the Investigation Office that the applicant raised this particular complaint. Against the President's second decision of 28 April 1997, which dealt with the complaint at issue, the applicant failed formally to file a public law appeal. Furthermore, the applicant did not formally complain that the authorities had failed to comply with the President's second decision.
On the other hand, the Government consider that the applicant is no longer a victim since the President of the Cantonal Court, in his decision of 28 April 1997, had criticised the authorities for having made the applicant wear handcuffs on his walks, as such a conduct was unacceptable from the point of view of human dignity; the authorities were instructed to take the necessary steps. As a result, the Government consider that the President of the Cantonal Court in fact admitted a violation of Article 3 of the Convention. It is also pointed out that the applicant never complained to the competent authorities that the order of the President of the Cantonal Court was not followed. In this respect he had the possibility of filing an action for compensation.
The applicant considers that he has complied with the requirements under Article 35 § 1 of the Convention as to the exhaustion of domestic remedies. Thus, the Federal Court, in its judgment of 20 May 1997, refused to examine his complaints about the conditions of detention on remand since they had in the meantime been ameliorated and he therefore lacked a practical interest in the case. A further public law appeal against the second decision of the President of the Cantonal Court of 28 April 1997 would have been pointless. Moreover, when he complained to the Federal Court on 5 May 1997 about the wearing of handcuffs, he was still within the time-limit prescribed by law for filing a public law appeal.
The applicant furthermore considers that he remains a victim since the authorities never formally admitted a violation of the Convention. Despite the President's instructions of 28 April 1997, the applicant remained handcuffed on his walks.
According to Article 35 § 1 of the Convention "the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ..." In the present case, the Court notes that the applicant failed to obtain a decision of the President of the Cantonal Court on 16 April 1997 in respect of the complaint he is now raising before the Court, and, subsequently, to contest this decision before the Federal Court. The applicant has not, therefore, complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, and this part of the application must be rejected under Article 35 § 4 of the Convention.
The Court furthermore considers that in any event the applicant can no longer claim to be a victim of the violation complained of within the meaning of Article 34 of the Convention. Thus, he obtained redress for the complaint he is now raising before the Court when on 28 April 1997 the President of the Cantonal Court ordered the prison authorities to enable the applicant to take a daily walk of one hour without handcuffs on the ground that his situation amounted to a breach of human dignity. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
b) Insofar as the applicant complains about the conditions of his detention, inter alia, as to lighting, reading matter, food, medical treatment, etc., the Court considers that these conditions, while possibly uncomfortable, did not attain the minimum level of severity required to fall within the scope of Article 3 of the Convention (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162). This part of the application is, therefore, also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial ..."
a) The applicant complains that he was not brought "promptly" before a "judge or other officer authorised by law" within the meaning of this provision in that the Investigating Office is not an independent body.
The Government submit that this complaint is manifestly ill-founded. Thus, in the Canton of Schwyz the Public Prosecutor's Office is not capable of overturning a decision of, or withdrawing a case from, the Investigating Office, were it to be dissatisfied with the latter's approach. Furthermore there is no risk of an incompatible accumulation of functions since the Public Prosecutor's Office alone will raise the charges at the trial before the court. The Investigating Office is solely responsible for the investigation, and the supervision of the Public Prosecutor's Office is only of an administrative nature which does not impinge on the independence of the Investigating Office. In any event, the Government contend that the applicant has not maintained that in his case the Public Prosecutor's Office in fact interfered with the investigations, or that during these proceedings the Investigating Office consulted another authority.
The applicant replies that the Investigating Office is appointed by the Government of the Canton of Schwyz and works under the supervision of the Public Prosecutor's Office as well as of Government administration. Therefore, the Office in no ways fulfils the requirements of Article 5 § 3 of the Convention. The Investigating Office is even less independent than the District Attorney's Office of the Canton of Zurich in respect of which the Court has found that it did not offer the independence required by this provision (see the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, § 43). In particular, whereas the Public Prosecutor's Office of the Canton of Zurich takes care not to interfere with the preliminary investigations, this will frequently be the case in the Canton of Schwyz. The applicant refers hereby to a document of the Canton of Schwyz of 1987 from which it transpires that a public prosecutor has stated that he could quash the decision of an investigating judge and order continuation of the investigations. The Public Prosecutor's Office, which may issue instructions to the Investigating Office, has full powers of supervision, and in the present case repeatedly dealt with the applicant's complaints.
The Court notes at the outset that it has not been claimed that, contrary to Article 5 § 3 of the Convention, the Investigating Office of the Canton of Schwyz, which ordered the applicant's detention on remand, was entitled to intervene in the subsequent criminal proceedings as a representative of the prosecuting authority (see the Huber case cited above.) In any event, according to Section 37 § 1 of the Judicial Organisation Act of the Canton of Schwyz, it is the Public Prosecutor's Office which will raise the charges at the trial before the court.
Rather, the applicant complains that during the investigations the Public Prosecutor's Office of the Canton of Schwyz may interfere with the functions of the Investigating Office.
According to the Court's case-law, the "officer authorised by law to exercise judicial power" within the meaning of Article 5 § 3 of the Convention is not identical with the "judge" stated in that provision, and may indeed be competent to carry out other duties, in addition to deciding on detention. Nevertheless, this office must satisfy certain conditions, inter alia, as to the independence of the executive (see the Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, pp. 13-14, § 31; the Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, p. 11, § 20).
In the present case the Court notes that status and functions of the Investigating Office are laid down in detail, on the one hand, in the Code of Criminal Procedure which in Section 26 lists the grounds for detention on remand and in Section 27 provides, inter alia, that the investigating judge shall be competent to impose such detention. On the other hand, the Judicial Organisation Act of the Canton of Schwyz provides in § 42 that the Government of the Canton of Schwyz shall elect the investigating judges, and in Section 45 that the Public Prosecutor's Office will supervise the Investigating Office. Section 44 § 2 states that the Investigating Office shall be competent for conducting the investigations .
In the Court's opinion, these provisions demonstrate that, as in the Schiesser case cited above, while the Public Prosecutor's Office may issue directives and undertake a general supervision, the Investigating Office will decide independently in a particular case when imposing detention on remand. Indeed, in the present case the applicant was brought before the investigating judge within one day, and there is no indication that the Investigating Office obtained instructions in respect of the imposition of his detention on remand.
This complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
b) Insofar as the applicant also complains under Article 5 § 3 of the Convention of the length of his detention on remand, lasting two months, the Court, noting a certain complexity of the charges raised against the applicant in the warrant of arrest of 3 April 1997, finds no issue under this provision. This part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
"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."
a) He complains, first, that he was not able freely to communicate with his lawyer until 28 April 1997 and that, during the investigations, he was not provided with an officially appointed lawyer. However, the Court notes the decision of the President of the Cantonal Court of 16 April 1997, according to which these complaints should have been raised pursuant to Section 140 of the Code of Criminal Procedure of the Canton of Schwyz before the Public Prosecutor's Office and subsequently before the Cantonal Court. The applicant failed to employ these remedies, for which reason this part of the application must be rejected under Article 35 § 4 of the Convention as being out for non- exhaustion within the meaning of Article 35 § 1.
Insofar as the applicant complains that he did not have an officially appointed lawyer in the proceedings before the Federal Court, the Court notes, on the one hand, that the applicant has not provided any substantiation as to his indigence; and, on the other, the Federal Court's decision of 20 May 1997 according to which the applicant lacked funds at most temporarily. This part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
b) The applicant complains furthermore under Article 5 § 4 of the Convention that he was not able to consult the entire case-file.
In the Government's opinion, this complaint is manifestly ill-founded. It is not contested that, in the proceedings before the President of the Cantonal Court leading to the decision of 16 April 1997, the applicant did not have full access to the file of the Investigation Office. However, the applicant and his lawyer enjoyed adversarial proceedings in that, when they were heard by the Cantonal Court President, they had the possibility to reply to the arguments of the investigating judge. The Government further observe that it has not been claimed that the latter based his decision on documents unknown to the defence. As a result, in these proceedings the equality of arms was ensured. The Government also point out that the lawyer was present at the moment when the order of arrest was served on the applicant, and the lawyer must, therefore, have taken notice of it.
The Government further submit that the President of the Cantonal Court in his decision of 16 April 1997 listed all evidence which the defence was able to consult and informed the parties upon which documents his decision was based. It was only speculation that evidence unknown to the defence was relied upon.
In the applicant's view, the Government explicitly admit that he could not consult the entire case-file of the Investigation Office. On the other hand, all authorities concerned had full access, for which reason the principle of the equality of arms was not respected. The defence was not able to refer to exonerating facts in the case-file; it was only in a position to react to statements of the Investigation Office. Indeed, certain formulations in the decision of the President of the Cantonal Court of 16 April 1997 allow the conclusion that documents unknown to the applicant were also taken into account. The applicant further points out that the order of arrest was not handed out to him, nor was he informed who had laid the information against him. The fact that until today the authorities have not preferred a charge against him confirms that there was no serious suspicion. The applicant concludes that the defence was denied the right to form its own opinion of the documents at issue and in particular to point to the exonerating circumstances which subsequently after his release emerged from the case-file.
According to the Court's case-law, the right to an adversarial trial in a criminal case means that both prosecution and defence must be given the opportunity to have knowledge of and comment upon the observations filed and the evidence adduced by the other party. It should be ensured that the other party will be aware that observations have been filed and will get a real opportunity to comment thereupon (see the Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29).
In the present case, the Court notes that at the outset the applicant was aware of the suspicions raised against him in the warrant of arrest of 3 April 1997 and also of the content of the order of arrest of 9 April 1997. Moreover, according to the decision of the President of the Cantonal Court of 16 April 1997, the applicant had been able to consult certain annexes to the criminal report of 24 March 1997; the minutes of the applicant's interrogations on 10 and 15 April; a letter of the Hong Kong firm of 1994; and part of the minutes of the interrogation of a certain Ch.R.
The Court furthermore notes the decision of the Federal Court of 20 May 1997 according to which the applicant had been able to consult all documents upon which the decision of the President of the Cantonal Court had been based. Before the Court the applicant has not shown that there were further exonerating documents the non-communication of which would have prevented him from challenging the lawfulness of his detention.
The Court concludes that an examination of this part of the application does not disclose that the applicant had not been sufficiently informed of the essential legal and factual grounds for his arrest, thereby preventing him from questioning the lawfulness of his detention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
c) The applicant also complains of the delay with which the President of the Cantonal Court dealt with his request for release from detention.
The Court recalls that Article 5 § 4 of the Convention, in guaranteeing to persons arrested or detained a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Baranowski v. Poland [GC], no. 28358/95, ECHR 2000-).
In the present case, the applicant's request for release from detention, filed on 11 April 1997, was dismissed by the President of the Cantonal Court on 16 April 1997, the decision being served on the applicant on 18 April 1997, i.e. seven days after the request had been filed. Bearing in mind the decision of the President of the Cantonal Court, according to which a delay arose on account of the applicant's failure personally to sign his complaint, the Court does not find that this period exceeded the notion of a "speedy" decision as enshrined in Article 5 § 4 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
The Court has also examined this complaint under Articles 5 § 4 and 8 of the Convention. However, the applicant has not shown that he has raised these complaints in the last resort before the Federal Court, either by means of a public law appeal or an action for compensation. This part of the application must be rejected under Article 35 § 4 of the Convention as being out for non-exhaustion of domestic remedies within the meaning of Article 35 § 1.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Registrar
Georg Ress President