G.B. gegen Schweiz

Entscheid über die Zulassung no. 27426/95, 03 février 2000

The European Court of Human Rights (Fourth Section) sitting on 3 February 2000 as a Chamber composed of

Mr M. Pellonpää, President,

Mr L. Wildhaber,

Mr G. Ress,

Mr A. Pastor Ridruejo,

Mr L. Caflisch,

Mr J. Makarczyk,

Mr I. Cabral Barreto, judges,

and Mr V. Berger, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 May 1995 by G. B. against Switzerland and registered on 29 May 1995 under file no. 27426/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 8 April 1997 and the observations in reply submitted by the applicant on 23 May 1997;

Having regard to the further observations submitted by the respondent Government on 4 September 1997 and the observations in reply submitted by the applicant on 21 July 1999;

Having deliberated;

Decides as follows:

The applicant, a Swiss citizen born in 1945, resides in Minusio, Switzerland. Before the Court he is represented by Ms B. Hug, a lawyer practising in Zürich.

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

On 20 September 1994, the applicant was arrested and remanded in custody. He was suspected of having had contacts with the Carlos group (a terrorist organisation) and participated in an attack on the Radio Free Europe radio station in Munich. According to the warrant of arrest, the applicant had thereby violated Article 122 in conjunction with Article 22 of the Criminal Code. The warrant also referred to a danger of collusion and of absconding.

On 22 September 1994, after a hearing, investigating magistrate X. confirmed the applicant's detention on remand. Further investigations would be necessary since the applicant refused to comment on his contacts with the Carlos group. The decision noted that the suspicions against the applicant were based on files of the East German State security authorities and of the Hungarian intelligence service.

The investigations were then taken over by the Federal Attorney's Office(Bundesanwaltschaft). Until his release, the applicant was questioned by various policemen and shown a number of documents.

On 21 October 1994, the applicant filed a request for release from detention, complaining that he had not been brought before an independent investigating magistrate as required by Article 5 § 3 of the Convention. The applicant also asked to consult the case-file.

The Federal Attorney's Office received the request for release on 24 October 1994 and, on the following day, dismissed it. That decision, served on the applicant on 27 October, referred to various investigations still to be undertaken and to the dangers of collusion and of absconding.

On 31 October 1994, the applicant filed an appeal(Beschwerde) against this decision with the Indictment Chamber (Anklagekammer) of the Federal Court. The applicant's lawyer argued, inter alia, that the applicant's detention was contrary to Article 5 §§ 1, 2 and 4 as well as Article 6 § 3 of the Convention. He submitted that the applicant had already been detained for more than six weeks without the lawfulness of his detention having been examined by a court because, although the investigation judge X. could possibly be regarded as a judicial officer within the meaning of Article 5 § 3, X. could not be considered as a court within the meaning of Article 5 § 4 of the Convention.

The President of the Indictment Chamber received the appeal on 1 November 1994. On the same day, he transmitted a copy of the complaint to the Federal Attorney's Office, requesting it to transmit its observations directly to the applicant before 7 November 1994. The applicant was requested to submit any further observations on the reply of the Federal Attorney's Office by 11 November 1994.

On 7 November 1994, the Federal Attorney's Office addressed its observations to the applicant and the Federal Court. According to the covering letter to the latter, the observations included "all documents so far produced in the criminal investigation"(alle bisher ergangenen Strafakten), though it was expressly stated that those documents should not be disclosed to the defence. The applicant received the Federal Attorney's observations on 8 November 1994.

On 11 November 1994, the applicant filed his observations, asking for his release from detention and for consultation of the case-file. These observations were received by the Federal Court on 14 November 1994.

On 21 November 1994 the Indictment Chamber of the Federal Court dismissed the applicant's request, the decision being served on the applicant on 22 November 1994.

In respect of the applicant's complaint that he could not consult the case-file, the Indictment Chamber found that the Federal Attorney's Office had stated that, on 25 October 1994, one of the applicant's lawyer, R., had had access to the entire hearing record, annexes included. The Indictment Chamber therefore concluded that there was no need to decide on access to the case-file for H., the applicant's other lawyer.

The Indictment Chamber also found that the applicant himself had had several times the opportunity to comment on papers shown to him during hearings which took place on 21 and 26 September, 4 and 18 October and 4 November 1994. He had been informed on 21 September 1994 of the suspicion, arising from a document of the East German authorities, that he belonged to the Carlos group. On 26 September 1994, he had been confronted with a handwritten note by and photo of a collaborator of the East German authorities according to which the person depicted, called "Roberto", was a member of the Italian Red Brigades and, indeed, was the applicant himself. According to a further note shown to him, "Roberto" had a Swiss passport. A report of the East German authorities had been shown to the applicant on 4 October 1994 from which it transpired that the applicant was referred to as a contact person with the Carlos group and that he had frequently met members of that group in Berlin and Budapest. According to another note shown to the applicant, mentioning his name, the Romanian members(Rumänische Stelle) of the Carlos group had requested that group to undertake certain operations; in this note his name was also mentioned in connection with the attack on the Radio Free Europe radio station. A number of further documents, including a note in Russian, had been shown to the applicant, which referred to the applicant's participation in the Carlos group.

Therefore the Indictment Chamber found that the applicant had seen all documents produced. It further stated that it was incomprehensible why the Federal Attorney's Office would have qualified these documents as "not to be disclosed"(Es ist ...deshalb nicht einzusehen, weshalb die Bundesanwaltschaft diese Akten als nicht zur Einsicht bezeichnet). It then concluded that, in view of the above elements, the applicant and his lawyer had had complete (vollumfänglich) knowledge of the case-file leading to the imposition of detention on remand and to the dismissal of the request for release. The Indictment Chamber Court further confirmed that there was sufficient suspicion that the applicant had committed the offences at issue and that there was a danger of absconding and of collusion.

On 21 November 1994, the Federal Attorney's Office allowed the applicant to consult parts of the case-file, in particular reports of secret services and certain records which included the statements of a witness.

On 30 November 1994, the Federal Attorney's Office decided to release the applicant from detention on remand. The decision stated inter alia that the original suspicions directed against the applicant had not been proved(erhärtet).

1. The applicant complains that there was no equality of arms between him and the Federal Attorney's Office. In particular, the Federal Attorney's Office submitted their observations to the President of the Indictment Chamber together with documents which were not to be consulted by the defence. By limiting his access to the case-file, the applicant was deprived of the possibility of contesting his detention. No reasons were given therefor. As a result, he could not properly prepare his request for release from detention. He invokes Article 5 § 2 in conjunction with Article 5 § 4.

2. Under Article 5 § 3 of the Convention the applicant complains that investigating magistrate X. was not sufficiently independent and impartial and was not in a position to release the applicant.

3. The applicant complains that his request for release was not decided speedily within the meaning of Article 5 § 4 of the Convention. Thus, the Indictment Chamber required 22 days for its decision, the proceedings in their entirety lasting for 31 days.

4. Under Article 13 of the Convention, the applicant complains that there is no effective remedy to complain of a decision by the Indictment Chamber of the Federal Court.

The application was introduced on 16 May 1995 before the European Commission of Human Rights and registered on 29 May 1995.

On 17 January 1997, the Commission decided to communicate to the respondent Government the applicant's complaint under Article 5 § 4 of the Convention that the release proceedings were not conducted "speedily".

The Government's written observations were submitted on 8 April 1997. The applicant replied on 23 May 1997.

On 9 July 1997, the Commission asked for additional observations on the applicant's complaint that his access to the case-file had been limited.

The Government's additional written observations were submitted on 4 November 1997. The applicant replied on 21 July 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

1. The applicant complains that there was no equality of arms between him and the Federal Attorney's Office. By limiting his access to the case-file, he was deprived of the possibility of contesting his detention. He invokes Article 5 §§ 2 and 4 of the Convention which provide as follows:

"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

4. 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."

The Government note that, in its decision of 21 November 1994, the Indictment Chamber of the Federal Court stated that the procedure had respected the equality of arms and that the applicant had had knowledge of the entire case-file or, at least, was informed of the main contents of the file. Accordingly, he was sufficiently informed of the elements which led to the refusal of his request of release.

The Government recall different occasions at which the applicant was told of the content of the files and stress the fact that lawyer R. had had access to the entire record of hearings, annexes included, six days before the applicant lodged an appeal against the decision of the Federal Attorney's Office. The fact that the applicant's two lawyers, R. and H., did not communicate when they were preparing the request of release or that one of them failed sufficiently to consult his client can not generate a violation of the guarantees enshrined in the Convention. Therefore, according to the Government, this complaint is manifestly ill-founded.

The Government note that when the Federal Attorney's Office submitted its observations to the applicant and to the Indictment Chamber, it stated in a covering letter that "all criminal documents so far produced" were included, but added that the documents should not be disclosed to the defence. The Government contend that the Indictment Chamber noted that no reason was given as to why the documents should not be disclosed to the defence. The Government nonetheless contend that the applicant had had knowledge of all documents, either because they were shown to him or because he was informed of the main content of the file. The Government point out that the applicant's request for full access to the case-file was therefore granted.

The applicant replies in repeating that the Federal Attorney's Office expressly stated that the documents should not be disclosed to the defence, from which he concludes that there must have been several documents not disclosed to the applicant. Otherwise the comment in the covering letter would make no sense. As a result, he could not properly prepare his request for release from detention.

According to the Convention organs' 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 on the observations filed and the evidence adduced by the other party. It should be insured that the other party will be aware that observations have been filed and will get a real opportunity to comment on (see the Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29).

The Court notes that, according to the findings of the Indictment Chamber, all documents produced had in fact been shown to the applicant and his lawyers. For that reason, the Chamber failed to understand why the Federal Attorney's Office, in its accompanying letter, would have qualified the documents transmitted to the Chamber as "not to be disclosed to the defence". The applicant concludes from this qualification that some documents were communicated neither to the Indictment Chamber of the Federal Court nor to himself or his lawyers. He has not, however, established this to be the case. Accordingly the Court finds that the applicant has failed to substantiate his complaint under Article 5 § 4 of the Convention.

The Court thus concludes that an examination of this part of the application does not reveal that the applicant has not sufficiently been 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.

2. The applicant also complains that his request for release was not decided speedily within the meaning of Article 5 § 4 of the Convention. The Indictment Chamber of the Federal Court took 22 days for its decision, the proceedings in their entirety lasting for 31 days.

The Government submit that the period to be examined under Article 5 § 4 of the Convention ran from 24 October to 22 November 1994, though the four days between 27 and 31 October 1994, the latter date being that of the filing of the applicant's appeal to the Federal Court. Therefore the proceedings lasted for 25 days.

The Government note that in the present case the decision by a "court" within the meaning of Article 5 § 4 of the Convention is preceded by examination before an administrative body. Referring to the Sanchez-Reisse case (the Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 17, § 45), they contend that such a system does not run counter to the requirements of Article 5 § 4 of the Convention. On the other hand, in the light of the Sanchez-Reisse judgment, the Federal Court has changed its case-law so as to enable the applicant in release proceedings to reply to every statement made by the authorities concerned. Clearly such a right to reply will further prolong the proceedings. In the present case, the time-limit granted to the parties before the Federal Court was the absolute minimum of three days. Moreover, the Government point out that the Federal Court did not have advance knowledge of the applicant's case; it was informed thereof when it received the applicant's appeal, i.e. on 1 November 1994.

The Government point out, moreover, that the Indictment Chamber of the Federal Court had equally been seized by another applicant whose request fell into the same framework of facts and raised to a large extent the same issues. That request is currently the object of application no. 28256/95. The Federal Court had conducted both proceedings together.

The applicant replies that if, on the basis of the submissions of the domestic authorities, it must be assumed that the applicant did not receive all documents of the case-file, this cannot be employed as an argument to justify the length of the release proceedings. The authorities themselves are responsible for this situation. In the present case, the proceedings should have been conducted with particular speed, as during the investigations the pressing suspicion that an offence has been committed is far less relevant than in the pre-trial proceedings, which succeed the investigations once the suspicion becomes more probable. The applicant adds that the delay in the examination of his request for release cannot be explained by pointing out that a similar case had to be examined at the same time.

The Court recalls that according to the Convention organs' case-law the requirement of Article 5 § 4 of the Convention, namely, that the decision shall be taken "speedily", cannot be defined in the abstract. Rather, the matter must be settled, as with the "reasonable time" stipulation in Article 5 § 3 and Article 6 § 1 of the Convention, in the light of the circumstances of each case (see the above-mentioned Sanchez-Reisse judgment, p. 20, § 55).

The Court notes that the submission of the request to the Attorney's Office opens the administrative stage of the proceedings and is the prerequisite for the Federal Court's exercise of "judicial supervision of the lawfulness of the measure" (De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 40, § 76; Sanchez-Reisse judgment, p. 20, § 54). Therefore, in the present case, the period to be examined under Article 5 § 4 of the Convention commenced on 21 October 1994, when the applicant filed his request for release from detention, and ended on 22 November 1994, when the Federal Court's judgment was served on the applicant. The period therefore lasted 31 days.

Having noted the arguments of the parties in relation to the complaint, the Court considers that this part of the application raises complex issues of law and fact under the Convention which should be determined by an examination of the merits. This part of the application cannot, therefore, be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. Under Article 5 § 3 of the Convention, the applicant complains of the position of the investigating magistrate X., who allegedly was not sufficiently independent and impartial and was not in a position to release the applicant.

Article 5 § 3 of the Convention states, insofar as relevant:

"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 ..."

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Under Article 35 § 1 of the Convention it is, inter alia, required that the complaints intended to be made subsequently at Strasbourg should have been made, at least in substance, to the appropriate domestic body (cf. Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66).

The Court notes that, in the present case, the applicant has not raised the matter of the alleged lack of independence and impartiality of X. in his appeal of 31 October 1994 to the Indictment Chamber of the Federal Court.

It follows that, as regards this part of the application, the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

4. Under Article 13 of the Convention the applicant complains that there is no effective remedy to complain of a decision of the Indictment Chamber of the Federal Court.

Article 13 of the Convention states:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Court considers that, as regards legal remedies in matters of detention, Article 5 § 4 is the lex specialis and Article 13 the lex generalis. It is therefore sufficient to examine the present case from the angle of Article 5 § 4. In this regard the Court, recalling its finding in point 1 above, notes that the decision of 21 November 1994 pertaining to the applicant's detention was given by a court in adversarial proceedings. This means, according to the applicable case-law (see, e.g., the above-mentioned De Wilde, Ooms and Versyp judgment, p. 40, § 76), that the judicial control required by Article 5 § 4 was incorporated in the original judicial decision and that no further remedy was required under Article 5 § 4 (see the E. v. Norway judgment of 29 August 1990, Series A 181-A, § 60).

In the light of this conclusion in relation to Article 5 § 4, the Court does not deem it necessary in the instant case to inquire whether the less strict requirements of Article 13 were complied with (see in particular the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, § 60).

Furthermore, the right of appeal in matters of detention is not as such guaranteed by the Convention, and Article 13 of the Convention cannot be relied upon in circumstances where the alleged violation of the Convention lies in the province of a court (see the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, p. 14, § 25).

Therefore this part of the application is 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.

DECLARES ADMISSIBLE, without prejudging the merits, the applicant's complaints about the length of the release proceedings instituted on 21 October 1994 ;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää

Registrar President