12629/87_13965/88

 AS TO THE ADMISSIBILITY OF Application No. 12629/87 and No. 13965/88 by A.S. against Switzerland The European Commission of Human Rights sitting in private on 9 November 1989, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS G. BATLINER J. CAMPINOS H. VANDENBERGHE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY Mr. L. LOUCAIDES Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the applications introduced on 18 November 1986 and 28 May 1988 by A.S. against Switzerland and registered on 5 January 1987 and 20 June 1988 under files No. 12629/87 and No. 13965/88, respectively; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the parties, may be summarised as follows: The applicant, a Swiss citizen born in 1962, is a mason. When filing the applications he was still detained in the District prison of Affoltern Prison in Switzerland. On 15 September 1988 he was released from detention on remand. Before the Commission he is represented by Mr J.P. Garbade, a lawyer practising in Geneva and Zurich. The applicant has submitted two applications relating to his contacts with his defence counsel during his detention on remand. Application No. 12629/87 concerns the circumstances leading up to, and including, the decision of the Federal Court (Bundesgericht) of 4 December 1985. Application No. 13965/88 concerns the subsequent situation leading up to, and including, the decision of the Federal Court of 30 November 1987. I. As from 1980 demonstrations took place in Winterthur which were directed, inter alia, against an international arms fair and the export of nuclear technology to a South American country. In this context, buildings were occupied or sprayed with graffiti. At the same time explosions, fires and floodings damaged certain public and private buildings in Winterthur. An explosion occurred in the home of Mr F., the then Federal Councillor (Bundesrat) and Head of the Department of Justice and Police, causing damages of approximately 20,000 CHF. On 20 July 1984 the Winterthur police set up a task force to investigate these offences. A number of persons living in a commune in Winterthur were kept under surveillance, whereby, inter alia, their telephones were tapped and the contents of their refuse bags analysed. On 20 November 1984 27 persons were temporarily arrested. One Mr A.W. was remanded in custody and eventually sentenced on 15 September 1986 by the Zurich Court of Appeal (Obergericht) to eight years' imprisonment on the grounds of having prepared, with others, the offences of arson and causing an explosion. Upon appeal, this sentence was reduced to four years' imprisonment. While A.W. was remanded in custody, he was represented by Mr R., a lawyer practising in Zurich with whom he was able to communicate freely after 15 February 1985. On 21 November 1984 the applicant was arrested in Geneva on suspicion of having participated in the above offences. On the same day, the applicant absconded. He was again arrested on 30 March 1985. On 1 April 1985 the applicant was heard by the Geneva authorities whereby he was charged of the offences of theft and of damage to property. On 2 and 4 April 1985 the Federal Public Prosecutor (Bundesanwalt) transmitted to the Geneva authorities statements raising charges against the applicant which were served on him on 4 April 1985. On 10 April 1985 the applicant was confronted with a number of charges, concerning inter alia the explosion at Mr. F'.s house, by officials of the Federal Public Prosecutor's Office. He did not make any statement. On 22 May 1985 the criminal proceedings concerning the charges brought by the Federal Prosecutor's Office were transferred to the Zurich authorities, namely the Winterthur District Attorney's Office (Bezirksanwaltschaft), and the applicant was brought, via Berne, to Winterthur Prison. On 28 May 1988 he was heard by the Winterthur District Attorney and charged with the offences of having caused explosions at the home of Mr F. as well as of arson at a civil protection centre. He was remanded in custody on the grounds of a danger of absconding and of collusion. It was feared, in particular, that he might conspire with other co-accused in order to procure an alibi. The charges brought against the applicant were extended on 7 June 1985 to the offences of setting fire to two houses at rifle ranges (Schützenhäuser) and of flooding a business house as well as damaging property by spraying graffiti on walls. On 19 July 1985 the charges brought by the Geneva authorities were also transferred to the Wintherthur District Attorney's Office. Other investigations conducted by the Geneva authorities concerning arson, of which the applicant had so far not been charged, were also transferred to Winterthur. The applicant was informed of these charges on 6 September 1985. II. In April 1985 the applicant asked his mother to enquire whether Mr R., the lawyer representing A.W., would also represent him. On 30 April 1985 R. declined as he was overloaded with work, though he recommended to the applicant a former office colleague of his, namely the applicant's present lawyer. On 1 May 1985 the applicant signed a power of attorney in favour of the present lawyer. The applicant's oral communications with his present lawyer were supervised from 31 May 1985 until 10 January 1986. Written communications between the applicant and his lawyer were also supervised. Thus, three letters of the applicant to his lawyer dated 4, 6 and 21 May 1985 were intercepted and later employed by the authorities to prepare graphological expert opinions. This supervision was based on S. 18 para. 2 of the Zurich Code of Criminal Procedure (Strafprozessordnung) which envisages such supervision in particular if there is a danger of collusion. In the present case, according to a letter of the Winterthur Public Prosecutor's Office of 12 June 1985, the Office saw such a danger of collusion in the fact that the applicant's lawyer could conspire with other lawyers or accused. In respect of the applicant, the Winterthur District Attorney referred in the above order imposing detention on remand on the applicant on 28 May 1985 to the danger that he would otherwise procure an alibi. In the District Attorney's request to the Public Prosecutor's Office (Staatsanwaltschaft) for a prolongation of detention on remand of 9 September 1985, reference was made to the danger that the applicant might conspire with other accused who had meanwhile been released, or that he might influence evidence in his favour. Only twice did unsupervised visits occur. On 8 May 1985, while still at Berne prison, the applicant was able freely to confer with his present lawyer for thirty minutes. Later, at Winterthur prison, the applicant was able once to confer freely with another lawyer, Dr H., who visited him upon instructions of the applicant's mother. On 10 June 1985 the President of the Indictment Chamber (Anklagekammer) of the Zurich Court of Appeal (Obergericht) officially appointed, retroactively as from 4 May 1985, the applicant's defence counsel. The President also extended the applicant's detention on remand until 12 September 1985. On 31 May 1985, the applicant conferred with his defence counsel under the supervision of a certain Mr S., a police officer dealing with the case (Sachbearbeiter). Mr S. took notes and after one hour stopped the discussion between the applicant and the defence counsel on the grounds that, in his view, they were no longer talking about the proceedings and that he, Mr S., still had other business to do. III. The applicant filed an appeal (Beschwerde) in which he complained that he was not allowed freely to confer with his defence counsel. On 27 June 1985 the Indictment Chamber at the Zurich Court of Appeal dismissed the appeal. It found that the applicant was seriously suspected of having committed the various offences and that there was a grave danger of collusion in view of the extremely complex and voluminous investigations being conducted by the authorities. As the applicant refused to speak with the authorities, he could easily tamper with the evidence, particularly as most of the other co-accused, with the exception of A.W., had been released from detention. The Indictment Chamber observed that the applicant had maintained close contacts with the other co-accused and that the offences with which they were charged were very dangerous in that they constituted attacks against the order of the State and society in general (Staats- und Gesellschaftsordnung). Finally, the Indictment Chamber saw a danger of unintentional collusion by counsel, in that the applicant's defence counsel would collaborate with the lawyer representing other co-accused, inter alia with Mr R. who was defence counsel for A.W. In a separate appeal (Rekurs) the applicant also complained that he had not been able to consult all the documents of the file and that the proceedings concerning the legality of his detention had been conducted without an oral hearing. This appeal was dismissed by the Indictment Chamber on 18 July 1985 which also upheld the extension of the applicant's detention on remand until 12 September 1985 in view of the existing danger of collusion and of absconding. The applicant's detiention on remand was subsequently prolonged on 9 September and 12 December 1985. IV. Against the decision of the Indictment Chamber of 27 June 1985 the applicant filed a further appeal (Rekurs) which was dismissed on 26 July 1985 by the Civil Chamber (Zivilkammer) at the Zurich Court of Appeal. The Civil Chamber found that, as the applicant refused to testify, he was in a position to conspire with other persons involved in the proceedings in order to coordinate (abstimmen) his eventual depositions. It was to be assumed that the applicant would pursue such a conspiracy with all possible means. Insofar as Dr H. had been able freely to confer with the applicant, the Civil Chamber did not regard as credible the submissions of the present lawyer according to which his contacts with the lawyers representing the other co-accused were not more intensive than those which Dr H. had with these lawyers. The Civil Chamber noted that, Mr R., who was the defence counsel for A.W., had in fact told the District Attorney's Office that the various lawyers would coordinate their position. The decision continues:

"Dieses Vorgehen ist zwar nicht unzulässig, doch muss es mit dem Gebot der materiellen Wahrheitsfindung vereinbar sein. Da die von Rechtsanwalt Garbade und Rechtsanwalt R. verteidigten Angeschuldigten von ihrem Recht Gebrauch machen, die Aussage strikte zu verweigern, ist die Gefahr nicht von der Hand zu weisen, daß die Verteidiger nicht nur ihr taktisches und rechtliches Vorgehen absprechen, sondern allenfalls auch die materielle Wahrheitsfindung gewollt oder ungewollt beeinträchtigen. Unter diesen Umständen sind gerade bei Delikten der vorliegenden Art, die als Angriffe auf die Staats- und Gesellschaftsordnung aufzufassen sind, genügend Anhaltspunkte gegeben, die auf eine Kollusions- gefahr in der Person des Verteidigers hinweisen."

"Such a manner of proceeding may not be inadmissible, but is must conform with the rule of finding the material truth. As the co-accused, represented by the lawyers Garbade and R., have availed themselves of their right to remain silent, the danger cannot be excluded that the defence counsels not only coordinate their manner of proceeding in a tactical and juridical way, but possibly also, intentionally or not, impair the finding of the substantive truth. In such circumstances, there are sufficient indications which point to a danger of collusion in the person of the defence counsel, particularly in respect of offences, such as the present ones, which must be considered as attacks against the order of the State and society." V. The applicant then filed two public law appeals (staats- rechtliche Beschwerden) against the decisions of the Indictment Chamber of the Zurich Court of Appeal of 27 June and 18 July 1985, and of its Civil Chamber of 26 July 1985. In his public law appeal of 19 August 1985 he complained under Article 6 para. 3 (b) of the Convention in connexion with Article 5 para. 4 of the Convention and with reference to a previous decision of the Federal Court that the supervision of the communications with his lawyer rendered illusory the right to a procedure under Article 5 para. 4. In his public law appeal of 27 August 1985 he alleged inter alia that his right to a fair hearing (das rechtliche Gehör des Beschwerdeführers) in the context of Article 5 para. 4 of the Convention was invalidated in respect of the appeal proceedings concerning the prolongation of his detention on remand. He claimed in particular that supervision made it impossible confidentially to talk with his lawyer as to the means with which the evidence adduced by the investigating authorities could be challenged. These public law appeals were rejected in two decisions of the Federal Court of 15 October and 4 December 1985. On the first page of both decisions the Court referred to Articles 5 para. 4 and 6 para. 3 (b) of the Convention. In its decision of 15 October 1985 the Federal Court considered the procedure in which the legality of the applicant's detention on remand was examined. Thus the Court found that the applicant's lawyer had been able to consult at least part of the case-file and that at the latest for the preparation of the trial the defence counsel would be able to consult the entire case-file. The Court also saw no obligation to conduct an oral hearing in proceedings concerning the prolongation of the applicant's detention on remand. Finally, the Court considered that the length of the applicant's detention on remand had not yet exceeded the permissible maximum. On 4 December 1985, the Federal Court dismissed the applicant's complaints concerning the supervision of his communications with his defence counsel. This decision was served on the applicant's lawyer on 28 May 1986. The Court considered that it could only examine the decision of the Civil Chamber of 26 July 1985 and that it was unaware of the applicant's situation thereafter. The Court dismissed at the outset the applicant's complaints under Article 6 para. 3 (b) of the Convention since he had not claimed that the supervision of the contacts with his defence counsel impaired the preparation of the trial. Rather, the applicant's complaints fell to be considered under Article 4 of the Swiss Constitution and Article 6 para. 3 (c) of the Convention, as interpreted by the Commission's case-law. In the Federal Court's opinion, it was not arbitrary if the Zurich authorities viewed the alleged offences as systematic attacks against the order of the State and society, particularly if one bore in mind the selection of the objects attacked. Thus, the accused persons appeared extraordinarily dangerous and it could well be assumed that they would resort to illegal means even during the trial proceedings. As a result, regardles of the individual lawyer concerned, the supervision of the applicant's contacts with his defence counsel conformed with the Constitution and the Convention. The Federal Court considered further that if irregularities occurred on the part of a defence counsel, it was in the first place up to the disciplinary authorities to undertake the necessary sanctions. Nevertheless, even a defence counsel could, intentionally or not, become an accomplice of the accused. It could reasonably be said (mit haltbaren Gründen) that such a situation could arise all the more in respect of the applicant's defense counsel as he stood in close contact with Mr R. who represented A.W. while the latter had been able freely to confer with his defence counsel. This did not in the Court's opinion imply a discrimination of the applicant in as much as A.W. had been detained much longer and was charged with other offences. VI. The contacts between the applicant and his defence counsel continued to be supervised. Thus, notes for the file on contacts between the applicant and his lawyer were prepared on 23 August, 11 and 21 October, and 18 December 1985. According to a note prepared for the file by the Winterthur District Attorney on 21 October 1985, he told the applicant's lawyer on that day that the supervision of communications would be stopped when he, the District Attorney, had heard without interference by third parties the applicant's views in respect of all charges brought against him. When the lawyer told the District Attorney that the applicant would probably refuse to speak until he had unsupervised contacts with the lawyer, the District Attorney replied that this was the applicant's right. Subsequently, by letter of 2 April 1986 to the applicant's lawyer, the District Attorney recalled that the applicant's lawyer had told him that the applicant would not comment on the investigations; he, the District Attorney, assumed therefore that the applicant renounced his right to be heard on the reports and minutes of the interrogations. On 20 December 1985 the applicant again filed an appeal (Beschwerde) in which he complained about the supervision and that his defence counsel was not able to consult the case-file. The Indictment Chamber dealt with these complaints in two decisions. In its first decision of 8 January 1986 the Indictment Chamber reserved for a later decision the issue of the supervision of the applicant's contacts with his defence counsel in view of the fact that the Public Prosecutor's Office envisaged unsupervised contacts after 9 or 10 January 1986. The Chamber further found that the applicant was suspected of having committed the offences at issue, and if the investigations lasted a long time this was also due to the applicant's refusal to make any statement. According to the subsequent decisions of the Federal Court of 30 November 1987, the applicant was permitted freely to communicate with his lawyer as from 10 January 1986. The applicant claims that this happened as from 14 January 1986. On 10 July 1986 the Indictment Chamber gave its second decision which complemented (Nachtragsbeschluss) the decision of 8 January 1986. The Chamber found that the applicant now lacked legal interest in his appeal as his contacts with his defence counsel were no longer supervised. The Indictment Chamber then examined whether or not the applicant had to bear the costs of the proceedings and whether he was entitled to compensation. In order to resolve this issue the Chamber had to examine whether the applicant's appeal of 20 December 1985 would have been successful if the supervision of the contacts with his defence counsel had continued. The Chamber concluded that the circumstances referred to in the decision of the Federal Court of 4 December 1985 had not changed until 20 December 1985. As a result the supervision had been necessary and the applicant's appeal would probably have been dismissed. In view of the procedure chosen by the Indictment Chamber, resulting in two different decisions, the applicant was nevertheless exempted from costs and expenses, though no compensation was granted. The applicant's further appeal (Rekurs) was dismissed by the Civil Chamber at the Zurich Court of Appeal on 19 January 1987, which also considered that the applicant's appeal of 20 December 1985 would probably have been dismissed. The applicant's public law appeal against the decision of 19 January 1987 was dismissed by the Federal Court on 30 November 1987. The latter's decision was served on the applicant's lawyer on 7 December 1987. The Federal Court found it could only examine whether the Zurich authorities had arbitrarily refused to grant compensation to the applicant on the ground that his appeal of 20 December 1985 would probably have been dismissed. In the Court's view there continued to exist a danger of collusion in respect of the applicant. The investigations were prolonged inter alia by the extraordinary number of the offences of which the applicant was charged, and it could be assumed, without arbitrariness, that the relevant circumstances did not change between July and December 1985. VII. On 28 July 1986 the final interrogation of the applicant took place. According to the minutes of the interrogation, counting 125 pages, the applicant remained silent while being confronted with the charges brought against him. The applicant's lawyer stated at the end inter alia that the accusations were based merely on the assumption that the applicant had anarchical views. On 21 August 1986 the Winterthur District Attorney submitted his final report of 235 pages on the investigations. Therein, he charged the applicant with having participated on three occasions in the offence of causing an explosion and of having committed nineteen instances of arson, or attempted to do so. The applicant was also charged of various instances of theft and of damaging property and a railway line. The damages amounted to a total of approximately 7,670,000 SFr. The file was then transmitted to the Zurich Public Prosecutor's Office (Staatsanwaltschaft). On 12 September, 6 October and 22 December 1986 the applicant unsuccessfully requested the Public Prosecutor's Office to take further evidence. On 29 January 1987 the Zurich Public Prosecutor's Office indicted the applicant of the various offences mentioned. In his reply thereto the applicant requested on 1 April 1987 the taking of further evidence. The applicant subsequently did not employ his right to choose that his trial should rather be conducted by the Jury Court (Geschwore- nengericht) than the Zurich Court of Appeal acting as Cantonal Court. On 12 June 1987 the applicant was committed to trial before the Zurich Court of Appeal. At the trial the Public Prosecutor requested a punishment of 11 years' imprisonment (Zuchthaus). The date for the pronouncement of judgment was fixed for 4 January 1988. However, as the applicant did not appear, the Court adjourned the pronouncement. On 2 February and 15 September 1988 the Court ordered the preparation of three graphological expert opinions. On 15 September 1988 the applicant was released from detention on remand. The last expert opinion was prepared by 17 August 1989 and served on the applicant on 23 August 1989. The applicant was also asked whether he wished to be tried by the Zurich Jury Court. COMPLAINTS 1. The applicant complains under Article 6 paras. 3 (b) and (c) of the Convention that he was not allowed to communicate freely, and without supervision, with his defence counsel from 31 May 1985 until 14 January 1986. 2. The applicant further complains that his right to take proceedings before a court within the meaning of Article 5 para. 4 of the Convention became illusory by the prohibition of free communication with his defence counsel. 3. The applicant also complains under Article 13 of the Convention that, after the Zurich authorities had examined his appeal of 20 December 1985, the Federal Court only examined whether or not these authorities had arbitrarily considered that his complaint of 20 December 1985 would probably have been dismissed. PROCEEDINGS BEFORE THE COMMISSION Application No. 12629/87 was introduced on 18 November 1986 and registered on 5 January 1987. Application No. 13965/88 was introduced on 28 May 1988 and registered on 20 June 1988. On 12 December 1988 the Commission decided to join the applications, to bring them to the notice of the respondent Government and to invite them pursuant to Rule 42 para. 2 (b) of the Rules of Procedure to submit observations on their admissibility and merits, in respect of the complaints under Articles 5 para. 4, 6 para. 3 (c) and 13 of the Convention. The respondent Government's observations were submitted on 27 February 1989 and the reply thereto by the applicant on 10 April 1989. THE LAW 1. The applicant complains that he was not allowed to communicate freely, and without supervision, with his defence counsel from 31 May 1985 until 14 January 1986. He relies on Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention which state: "3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...." The applicant submits that, while the authorities justified the supervision of communications on the ground of a danger of collusion, they never indicated how the applicant's lawyer could conspire with other persons, in particular, with other lawyers who were defending co-accused in these proceedings. In fact, during the period at issue, the authorities undertook no investigations which were susceptible to influence by a concerted action between the applicant and his lawyer. The applicant points out that in such cases it is not necessary to show that the supervision caused prejudice. In any event, prejudice occurred. Thus the supervision hindered the preparation of the applicant's defence, it prolonged the proceedings, and the notes of the supervising officers were taken as evidence to the file. The respondent Government submit that the complaints under Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) are manifestly ill-founded. With reference to the Commission's Report in the Can case (Comm. Report 12.7.84, Eur. Court H.R., Series A No. 96, p. 15 et seq., paras. 49 et seq.), the Government submit that while an accused's unsupervised communication with his lawyer is a fundamental part of his defence, this right is susceptible to exceptions. In the Government's view, in such cases the entirety of the proceedings must be considered. Thus, after 10 January 1986 the applicant's lawyer could freely communicate with the lawyer and had full access to the file for a period of two years until the hearing for the pronouncement of judgment was fixed. The Government further point out that the applicant was accused of particularly serious offences and that the authorities pursued the investigations also during the relevant period. Here the Government emphasise that, while the applicant knew that the supervision would be lifted when the investigations were terminated, he nevertheless refused to speak to the investigating authorities. The Government also submit that the applicant has not shown that he suffered any prejudice when the communications with his lawyer were supervised. Here, the Government consider that, contrary to the Commission's opinion in the Can case (ibid. para. 55), the functions of the lawyer worthy of protection under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention concern only the preparation and conduct of the trial and not, for instance, requests of the accused to be released from detention on remand. The Commission, having regard to the applicant's complaints under Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention, considers that they raise complex issues of fact and law which can only be resolved by an examination of the merits. This part of the applications cannot, therefore, be declared manifestly ill-founded. No other grounds for inadmissibility have been established. 2. The applicant further complains that his right to take proceedings before a court within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention became illusory in view of the lack of free communication with his defence counsel. He relies on Article 5 para. 4 (Art. 5-4) of the Convention which states: "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". a) The applicant contends that, by raising the complaint at issue in his public law appeal of 27 August 1985, he has exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention. Subsequently, the decisions of the Federal Court of 15 October and 4 December 1985 both mentioned on the first page the complaint under Article 5 para. 4 (Art. 5-4) of the Convention. The respondent Government contest that the applicant has complied with the condition of the exhaustion of domestic remedies. They point out that he did not in his public law appeals leading to the Federal Court's decision of 15 October and 4 December 1985 and of 30 November 1987 complain that the supervision violated his rights under Article 5 para. 4 (Art. 5-4) of the Convention, or hindered his access to a tribunal, or caused him other prejudice. Under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. In the present case the Commission observes that the decisions of the Federal Court of 15 October and 4 December 1985 do not examine the applicant's complaints under Article 5 para. 4 (Art. 5-4) of the Convention. However, the Commission also notes that the applicant alleged in his public law appeal of 27 August 1985, which led to the Federal Court's decision of 4 December 1985, that his right to a fair hearing in the context of Article 5 para. 4 (Art. 5-4) of the Convention was invalidated in respect of the appeal proceedings concerning prolongation of detention on remand. He claimed in particular that supervision made it impossible confidentially to discuss with his lawyer the means by which the evidence adduced by the authorities could be challenged. A similar complaint was raised in his public law appeal of 19 August 1985. The Commission also notes that the Federal Court confirmed this complaint by expressly referring on the first page of the decisions of 15 October and 4 December 1985 to the complaint under Article 5 para. 4 (Art. 5-4) of the Convention. The Commission is therefore satisfied that the applicant sufficiently raised his complaint at issue before the Federal Court. This part of the applications cannot therefore be rejected under Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26) of the Convention for non-exhausion of domestic remedies. b) The Government further submit that the applicant has not shown that the supervision affected his rights under Article 5 para. 4 (Art. 5-4) of the Convention. The applicant was able to file appeals against the decisions to prolong his detention on remand, and his lawyer, while having only limited access to the file, was fully aware of the charges brought against the applicant and the suspicions resting on him. The Commission considers that the applicant's complaints under Article 5 para. 4 (Art. 5-4) of the Convention raise complex issues of fact and law which can only be resolved by an examination of the merits. The complaint cannot, therefore, be declared manifestly ill-founded. No other grounds for inadmissibility have been established. 3. The applicant also complains that, after the Zurich authorities had examined his appeal of 20 December 1985, the Federal Court only examined the question whether or not these authorities had arbitrarily considered that the applicant's complaint of 20 December 1985 would probably have been dismissed. He relies on Article 13 (Art. 13) of the Convention which provides: "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 Government regard this complaint as being manifestly ill-founded. They point out that the applicant obtained decisions of the Federal Court on 15 October and 4 December 1985 and 30 November 1987. With regard to the Federal Court's decision of 30 November 1987 the Government submit that the applicant has not shown how these proceedings, which were necessarily brief as they concerned court costs, did not comply with Article 13 (Art. 13) of the Convention. The Commission recalls the case-law of the Convention organs that where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress (see Eur. Court H.R., Klass and others judgment of 6 September 1978, Series A no. 28, p. 29 para. 64). However, in the present case the Commission finds that the applicant's complaints are directed against the decisions of three courts, namely of the Indictment Chamber of the Zurich Court of Appeal of 10 July 1986, of the Civil Chamber of the Zurich Court of Appeal of 19 January 1987, and of the Federal Court of 30 November 1987. It follows that a remedy against a violation of the Convention allegedly committed by these courts would require the possibility to appeal against their judgments. However, the right to appeal is not as such guaranteed by Article 13 (Art. 13) of the Convention (see Eur. Court H.R., Delcourt judgment of 17 January 1970, Series A no. 11, p. 14 para. 25). It follows therefrom that this provision cannot be relied upon in circumstances where the alleged violation of the Convention lies in the decision of a court (see No. 11508/85, Barfod

v. Denmark, Dec. 17.7.86, to be published in D.R.). This part of the application must therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES INADMISSIBLE the applicant's complaints concerning Article 13 (Art. 13) of the Convention; DECLARES ADMISSIBLE the remainder of the applications, without prejudging the merits of the case. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)