12794/87

 AS TO THE ADMISSIBILITY OF Application No. 12794/87 by Jutta HUBER against Switzerland The European Commission of Human Rights sitting in private on 9 July 1988, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL F. ERMACORA G. SPERDUTI E. BUSUTTIL A.S. GÖZÜBÜYÜK J.-C. SOYER H.G. SCHERMERS H. DANELIUS G. BATLINER J. CAMPINOS H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL Mr. C.L. ROZAKIS Mrs. J. LIDDY Mr. H.C. KRÜGER Secretary to the Commission Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 27 February 1987 by Jutta HUBER against Switzerland and registered on 13 March 1987 under file No. 12794/87;

- ii - Having regard to: - the first report of July 1987 provided for in Rule 40 of the Rules of Procedure of the Commission; - the Commission's decision of 7 October 1987 to bring the application to the notice of the respondent Government and invite them to submit written observations on the admissibility and merits of the application; - the observations submitted by the respondent Government on 18 December 1987 and the reply submitted thereto by the applicant on 13 April 1988; - the second Report of May 1988 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 1958, resides in Zurich. Before the Commission she is represented by Messrs. E. Schönenberger and K. Mäder, lawyers practising in Zurich. I. Particular circumstances of the case In connection with criminal investigations aginst one Mr. K. in Hamburg and one Mr. B. in Zurich concerning procuring (Zuhälterei) and pandering (Kuppelei), the Zurich District Attorney's Office (Bezirksanwaltschaft) issued an order against the applicant to appear on 8 August 1983 as witness (Vorführungsbefehl). The order was signed by the District Attorney D.J. On 11 August 1983 she was brought by the Zurich Town Police before the District Attorney's Office where she was interrogated. Thereby she admitted having lived of the proceeds of prostitution. However, she stated that she had known Messrs. K. and B. only by name and that she did not hand over to anybody part of her income as a prostitute. As a result, the District Attorney D.J. remanded the applicant in custody on the same day. According to the warrant of arrest (Verhaftsverfügung) signed on 11 August 1983 by the District Attorney D.J., there was the urgent suspicion that members of the group "Hell's Angels" of Zurich and Hamburg had brought German prostitutes to Zurich. There, in return for payment, some had married Swiss men. These women had been urged, partly under threat, to commit professional prostitution whereby the "Hell's Angels" had protected the women who in turn had given them part of the proceeds. The applicant was urgently suspected of having been one of these women. The warrant of arrest stated that as a witness and under threat of punishment on account of false testimony she had denied any connection with the "Hell's Angels". The warrant referred in particular to a danger of collusion and the danger that evidence would be destroyed. It also stated that an appeal against the order of arrest could be filed within 48 hours with the Public Prosecutor's Office (Staatsanwaltschaft) of the Canton of Zurich. The applicant was released from detention on remand on 19 August 1983. On 12 October 1984 the Zurich District Attorney's Office indicted the applicant before the Judge in Criminal Cases at the Zurich District Court (Einzelrichter in Strafsachen am Bezirksgericht) on the grounds of false testimony in court proceedings and alternatively (eventualiter) of the hindrance of criminal proceedings and postulated a punishment of 5,000-.SF. The bill of indictment was signed by the District Attorney D.J. who had also signed the warrant of arrest. The trial took place on 10 January 1985. According to the minutes of the trial, the applicant's representative stated as follows:

"In this case the first thing to note is a violation of the human right embodied in Article 5 para. 3 (Art. 5-3) of the European Convention on Human Rights which states that anyone who is arrested or detained in accordance with the provisions of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention has to be brought promptly before a judge or other officer authorised by law to exercise judicial power. This never happened in the present case. Rather, the person who remanded the accused in custody, District Attorney J., is today at the same time the author of the bill of indictment. I refer to a comparable application made to the European Commission of Human Rights in the cases of Schiesser and [X.] which were published in the journal 'Europäische Grundrechte-Zeitschrift'. In that decision the condition for a violation of human rights was not met in view of the fact that the District Attorney who ordered the arrest was not the person who drew up the bill of indictment. That case differs from the present one. Be that as it may, I shall in any event refer this case to the higher authorities."

"Vorliegend wurde zunächst das in Art. 5 Ziff. 3 der Konvention zum Schutze der Menschenrechte und Grundfreiheiten (EMRK) statuierte Menschenrecht verletzt, wonach jede nach der Vorschrift von Art. 5 Ziff. 1 c) EMRK festgenommene oder in Haft gehaltene Person unverzüglich einem Richter oder einem anderen, gesetzlich zur Ausübung richterlicher Funktionen ermächtigten Beamten vorgeführt werden muss. Eine solche Vorführung hat vorliegend nie stattgefunden; vielmehr ist derjenige, der die Angeklagte in Haft genommen hat, heute gleichzeitig Ankläger, nämlich der Bezirksanwalt J. Ich verweise auf eine entsprechende Beschwerde, die an der Europäischen Menschenrechtskommission in Sachen Schiesser und [X.] anhängig gemacht worden und in der, Europäischen Grundrechtezeitschrift, veröffentlicht worden ist. In jenem Entscheid wurde das Kriterium der Menschenrechtsverletzung verneint, weil der verhaftende Bezirksanwalt nicht mit dem anklagenden Bezirksanwalt identisch war, es sich mithin um einen andersgelagerten Fall als den vorliegenden Fall gehandelt hatte; ich werde auf jeden Fall diesen Fall weiterziehen." On 10 January 1985 the Zurich District Court acquitted the applicant on the grounds that she had never been invited (vorgeladen) to an interrogation for which reason her testimony was invalid and could not be considered. The judgment does not refer to the issues raised at the trial by the applicant's lawyer under Article 5 para. 3 (Art. 5-3) of the Convention. Upon appeal (Berufung) by the Public Prosecutor's Office the Zurich Court of Appeal (Obergericht) on 13 September 1985 convicted the applicant of attempted false testimony and sentenced her to a fine of 4,000 SF. The Court found that her testimony was not invalid and could be used. It further referred to the monitoring of telephone conversations between the applicant and Mr. K. which had been lawfully undertaken by the authorities in Germany and the minutes of which had been transmitted by way of legal cooperation to Switzerland. The Court concluded on the basis of these minutes that the applicant had in fact known Messrs. K. and B. The judgment of the Court of Appeal also refers to the issue under Article 5 para. 3 (Art. 5-3) of the Convention:

"Finally it must be noted that the applicant's lawyer unjustifiably put forward the objection that in the context of her arrest and in contravention of Article 5 para. 3 (Art. 5-3) of the Convention the accused had not been brought before a judge or other officer authorised by law to exercise judicial power. For, according to the case-law of the Federal Court, the Zurich District Attorney exercises in the procedural stage of investigation also judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention (ATF [Arrêts du Tribunal Fédéral] 102 Ia 179)."

"Schliesslich ist festzuhalten, dass der Einwand der Verteidigung, die Angeklagte sei im Zusammenhang mit ihrer Verhaftung in Verletzung von Art. 5 Ziff. 3 EMRK keinem Richter oder einem anderen gesetzlich zur Ausübung richterlicher Funktionen ermächtigten Beamten vorgeführt worden, zu Unrecht erfolgte. Nach der Rechtsprechung des Bundesgerichtes übt nämlich der zürcherische Bezirksanwalt im Verfahrensstadium der Untersuchung auch richterliche Funktionen im Sinne von Art. 5 Ziff. 3 EMRK aus (ATF 102 Ia 179)." The applicant filed a plea of nullity (Nichtigkeits- beschwerde) which was dismissed by the Zurich Court of Cassation (Kassationsgericht) on 1 July 1986. The Court found that the issue under Article 5 para. 3 (Art. 5-3) of the Convention was irrelevant for the present case. If the applicant therefore challenged the District Attorney she should have done so already during the investigation. The applicant then lodged a public law appeal with the Federal Court (Bundesgericht) in which she complained, inter alia, that, contrary to Article 5 para. 3 (Art. 5-3) of the Convention, the Zurich District Attorney had not only remanded the applicant in custody but also indicted her. The Federal Court dismissed the applicant's public law appeal on 24 November 1986. The Court found first that according to S. 90 of the Federal Judiciary Act (Organisationsgesetz) the substantiation of a public law appeal has to be included in the appeal statement itself and that it could not therefore consider the notes of the applicant's representative in the proceedings concerning the Schiesser case before the European Court of Human Rights. In respect of the applicant's complaint under Article 5 para. 3 (Art. 5-3) of the Convention the Court held:

"As the applicant has long since been released from detention on remand, she no longer has an actual practical interest in a response to this complaint for which reason the Court can no longer deal with it. The objection would in any event be unfounded since both the Federal Court (ATF 102 Ia 179ff) and the European Court of Human Rights (judgment of 4 December 1979 in the Schiesser case) have declared that the Zurich District Attorney qualifies in the procedural phase of the investigation as an 'officer authorised by law to exercise judicial power' within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention."

"Nachdem die Beschwerdeführerin längst aus der Untersuchungshaft entlassen worden ist, hat sie jedoch kein aktuelles praktisches Interesse mehr an der Behandlung dieser Rüge, weshalb darauf nicht einzutreten ist. Der Vorwurf wäre übrigens unbegründet, da sowohl das Bundesgericht (ATF 102 Ia 179ff.) als auch der Europäische Gerichtshof für Menschenrechte (Urteil vom 4. Dezember 1979 in Sachen Schiesser) erklärt haben, der zürcherische Bezirksanwalt sei im Verfahrensstadium der Untersuchung ein 'gesetzlich zur Ausübung richterlicher Funktionen ermächtigter Beamter' im Sinne von Art. 5 Ziff. 3 EMRK." The judgment was served on the applicant on 18 December 1986. II. Relevant domestic law and practice According to S. 32 of the Judiciary Act (Gerichtsverfassungs- gesetz, GVG) of the Canton of Zurich of 1976 the District Court examines as a criminal court all matters not falling within the jurisdiction of another court. S. 44 and 57 GVG state the various offences which the Court of Appeal and the Jury Court, respectively, are competent to decide; they do not include the charges brought against the applicant. S. 72 GVG provides that the District Attorney's Office acts as the indicting authority (Anklagebehörde) at the level of the District Court, and the Public Prosecutor's Office before the Court of Appeal and the Jury Court (Geschworenengericht). S. 73 GVG states that the investigation of offences is conducted by the District Attorney's Office and the Public Prosecutor's Office. In practice, most investigations are carried out by the District Attorney. As a rule, District Attorneys are elected for office by the people for four years (S. 86 para. 2 GVG). S. 55 of the Code of Criminal Procedure (Strafprozessordnung, StPO) of the Canton of Zurich of 1919 authorises the District Attorney to issue a warrant of arrest. Against the latter an appeal may be filed. S. 64 StPO obliges the District Attorney to hear an arrested suspect within twenty-four hours. According to S. 65 StPO, the suspect must thereby be clearly informed of the reasons prompting the suspicion held against him. Detention on remand ordered by the District Attorney may not exceed 14 days, except if continuation is ordered by the President of the District Court or of the Prosecuting Chamber (Anklagekammer) of the Court of Appeal, depending on the jurisdiction of the respective Court (S. 51 StPO). Once the investigation has been closed and the prosecution has not been discontinued, the indicting authority, i.e. the District Attorney's Office or the Public Prosecutor's Office, commence the main proceedings (Hauptverfahren) by submitting the bill of indictment (S. 161 StPO). The President of the District Court or of the Prosecuting Chamber of the Court of Appeal will then decide whether or not to admit the bill of indictment (S. 165 StPO). S. 178 StPO states:

"The indicting authority is a party to the main proceedings. It has as such all the rights and duties of a party. In his statement the indicting officer should not one-sidedly confine himself to stressing items that tell against the accused, but should also take into account items in his favour."

"Die Anklagebehörde ist im Hauptverfahren Prozesspartei. Sie hat alle einer solchen zustehenden Rechte und Pflichten. Der Ankläger soll bei seinen Vorträgen nicht einseitig nur dasjenige hervorheben, was den Angeschuldigten beschweren kann, sondern auch das berücksichtigen, was zu seinen Gunsten spricht." The District Attorney remains under the control of the Public Prosecutor's Office (S. 86 GVG), and the latter is authorised to issue directives to him (S. 27 StPO). In practice District Attorneys receive no special orders or instructions from the Public Prosecutor's Office concerning their powers of placing individuals in detention. Apart from the power to order arrest and detention and to interrogate the arrested suspect, the District Attorney has the power to issue a summons order (Strafbefehl) if the accused has confessed and admitted his guilt, and if a fine (Busse) or prison sentence of a maximum of one month is considered to be adequate (S. 317 StPO). After conviction, S. 419 StPO envisages an appeal to the Court of Appeal in which complaints can be raised against all defects (Mängel) both of the investigation and of the procedure (Verfahren) and the decision of the first instance court. COMPLAINTS The applicant now complains that, contrary to Article 5 para. 3 (Art. 5-3) of the Convention, the same District Attorney decided on the applicant's detention and later also indicted her. Thus the District Attorney could not be regarded as having been independent within the meaning of that provision. In her reply to the Government's observations the applicant also stated on 13 April 1988, in connexion with her submissions as to whether she had complied with the conditions of Article 26 (Art 26) of the Convention, that the Federal Court should also have entered into her public law appeal in accordance with Article 13 (Art. 13) of the Convention. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 27 February 1987 and registered on 13 March 1987. On 7 October 1987 the Commission decided to bring the application 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 its admissibility and merits, in respect of the complaints under Article 5 para. 3 (Art. 5-3) of the Convention relating to the functions of the District Attorney concerned. The respondent Government's observations were submitted on 18 December 1987 and the reply thereto by the applicant on 13 April 1988. SUBMISSIONS OF THE PARTIES A. The respondent Government&- I. The facts The Government's submissions as to the facts have been included in THE FACTS above. II. General considerations The Government note that the present application raises the same issues as those before the Convention organs in the cases of Schiesser (Eur. Court H.R., judgment of 4 December 1979, Series A No.

34) and X. (No. 8485/79, Dec. 17.3.81, D.R. 22 p. 131 ff). In both cases, the Convention organs concluded that the Zurich District Attorney was indeed a "judge or other officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. This officer was therefore entitled to order detention on remand. In the applicant's submissions, however, the present application differs essentially from the above cases with the result that that case-law cannot be applied here. In particular, the District Attorney who ordered her arrest was also the person who later drew up the bill of indictment. Thus, in the applicant's submission this officer no longer fulfilled the condition of impartiality. III. As to the exhaustion of domestic remedies (Article 26 (Art. 26) of the Convention) 1. According to the Commission's case-law Article 26 (Art. 26) of the Convention requires the observance of the relevant procedural requirements under domestic law. Thus, there is no exhaustion of domestic remedies within the meaning of this provision if a domestic appeal has been declared inadmissible on account of a failure to observe a procedural requirement (see No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79 ff). The Government submit that, in the present case, the applicant has not observed the procedural conditions prescribed under Swiss law. S. 90 of the Federal Judiciary Act requires that in the case of a public law appeal the appeal statement specifying the constitutional rights or legal principles allegedly violated must state the relevant grounds. However, the applicant's lawyer merely referred to the submissions he had made before the European Court of Human Rights in the Schiesser case. The Swiss Federal Court considered this to be incompatible with S. 90 of the Federal Judiciary Act and in its judgment of 24 November 1986 the Court therefore did not enter into the applicant's public law appeal. The Government therefore conclude that the applicant has for this reason not exhausted domestic remedies. 2. The Government submit that also in another respect the conditions of the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention have not been fulfilled. According to the case-law of the Convention organs the applicant must have expounded, at least in substance, the complaints she intends to raise before the Commission. As for a State seeking to shelter behind the duty to exhaust remedies, it is for the State to "establish the existence of available remedies that have not been utilised by those concerned" (see Eur. Court H.R., Foti and others judgment of 10 December 1982, Series A No. 56, p. 17 para. 48). Moreover, "the only remedies which Article 26 (Art. 26) of the Convention requires to be exercised are those that relate to the breaches alleged and at the same time are available and sufficient" (see Eur. Court H.R., Van Oosterwijck judgment of 6 November 1980, Series A No. 40, pp. 13f para. 27). The remedies must exist with a sufficient degree of certainty, both in practice and in theory, otherwise they lack the requisite availability and effectiveness (see, mutatis mutandis, Eur. Court H.R., Van Droogenbroeck judgment of 24 June 1982, Series A No. 30, p. 30 para. 54). It lies with the respondent Government to demonstrate that these various conditions have been fulfilled (see Eur. Court H.R., Deweer judgment of 27 February 1980, Series A No. 35, pp. 15 and 18f, paras. 26 and 32, respectively). The Government submit that in the present case the applicant should therefore have lodged an appeal against her arrest by the Zurich District Attorney. Here, the Government specify that the offence of false testimony in connection with procuring falls within the jurisdiction of the District Attorney and that the arrest of the applicant was carried out in this context. The applicant should, therefore, have expected as soon as she was arrested that the officer who had ordered her arrest would also subsequently, in principle, decide on the drawing up of the bill of indictment. The Government refer here to S. 44, 56 and 72 of the Judiciary Act of the Canton of Zurich. In this context, the cases of Schiesser and X. mentioned above are of particular relevance. In the Schiesser case, that applicant lodged an appeal against the order of arrest, and in the last instance the Swiss Federal Court delivered its judgment in which it rejected the applicant's public law appeal. In the case of X. an appeal was lodged against the decision to extend the detention. Again, the Federal Court delivered judgment in the last instance in which it rejected that applicant's public law appeal. The Government refer to these two cases for a further reason. The lawyer representing those two applicants is also now representing the present applicant. He should therefore be particularly well versed in the problems of the case and the remedies available to him. Failure to make use of the remedies available is thus even less excusable. As regards the circumstances of the present case the Government note that the applicant was arrested on 11 August 1983. The arrest order was served on her the same day by the District Attorney, Mr. D.J., and bears the signature of the applicant. This order expressly provides for the possibility of an appeal (see THE FACTS above). However, the applicant did not avail herself of this possibility and the decision to arrest her has therefore never been contested. On 17 August 1983, while still in detention, the applicant appointed as her representative the lawyer now representing her before the Commission. On his advice she could, on the basis of Article 5 para. 4 (Art. 5-4) of the Convention, have had the legality of her detention examined by filing a request for her release, which under Swiss criminal procedural law is the normal procedure. While the Zurich Code of Criminal Procedure does not expressly provide for this procedure, it exists in practice. In accordance with this practice, the person detained may at any time submit a request for release to competent examining authorities. In the last instance the Federal Court, when deciding on a public law appeal, could have pronounced itself on the legality of this deprivation of freedom. The Government refer here to various publications of Swiss authors. It is undisputed that the applicant never requested her release. The Government thus note that the applicant contested neither the order of arrest nor the legality of the detention. Clearly, therefore, the condition of the exhaustion of domestic remedies has not been complied with. The Government observe further that the District Attorney D.J. carried out the whole enquiry in the applicant's case. On 12 October 1984, he drew up the bill of indictment against the applicant for false testimony and hindrance of criminal proceedings. Throughout the procedure before the examining authorities the applicant's lawyer took no action. He merely participated at the hearing of 27 September 1984. Throughout this period, no appeal was lodged and the procedure was never contested as such. The applicant's lawyer did not invoke a violation of Article 5 para. 3 (Art. 5-3) until the trial on 10 January 1985, i.e. 17 months after the applicant's arrest and 3 months after the bill of indictment (see THE FACTS above). In its judgment, the District Court did not go into the merits of this allegation. The Zurich Court of Appeal, in considering an appeal lodged by the Public Prosecutor's Office, confined itself in its judgment of 13 September 1985 to referring in general terms to the case-law of the Swiss Federal Court, according to which during the investigation the Zurich District Attorney exercises judicial functions within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. After her conviction by the Court of Appeal on 13 September 1985, the applicant filed a plea of nullity with the Court of Cassation of the Canton of Zurich. The latter did not in its judgment of 1 July 1986 consider the merits of the allegation that the District Attorney was not a judge. It merely stated that any such challenge should have been made during the investigation. Since no such challenge had been made, it could no longer revert to the matter. Nor did the decision of the Federal Court of 24 November 1986 on the applicant's public law appeal go into the merits of the issue raised under Article 5 para. 3 (Art. 5-3) of the Convention since the applicant no longer had any actual practical interest to have this issue determined. 3. The Government thus conclude that before the Federal Court the applicant did not observe the procedural requirements laid down in S. 90 of the Federal Judiciary Act, as would be required by domestic law (see para. 1 above). Moreover, the applicant did not make timely use of the appropriate legal procedures to contest either the decision to arrest her or the investigation. Finally the applicant submitted her complaint based on Article 5 para. 3 (Art. 5-3) of the Convention at too late a stage, namely during the trial. The Swiss courts therefore declared this complaint inadmissible (see para. 2 above). The Government therefore consider that the applicant has in respect of her present application not complied with the conditions of the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. IV. As to the well-foundedness of the application The Government recall that the complaint under Article 5 para. 3 (Art. 5-3) of the Convention is not new insofar as it relates to the Zurich District Attorney's functions. In the Schiesser case the Government had ample opportunity to express their views on these issues. The Government's written observations have been published in Eur. Court H.R., Series B No. 32. In the light of the above the Government are convinced that the application is inadmissible for failure to comply with the requirements of the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. The Government refrain therefore for the time being from expounding any substantive argument, while respectfully referring the Commission to the various conclusions published in Series B No. 32, pp. 39-59 and 78-90. However, the Government reserve the right to revert to the merits of the present application, should the Commission declare it admissible. V. Conclusion On the basis of Articles 26 and 27 para. 3 (Art. 26, Art. 27-3) of the Convention, the respondent Government invite the Commission to declare the application inadmissible. B. The applicant I. The facts The applicant's submissions as to the facts have been included in THE FACTS above. II. As to the exhaustion of domestic remedies (Article 26 (Art. 26) of the Convention) According to S. 419 of the Zurich Code of Criminal Procedure, an appeal is possible against the investigation as well as the first instance procedure and judgment. A fortiori this must apply to the first instance proceedings themselves. The applicant was therefore free to let the decision to detain her go unchallenged for the time being. This decision did not acquire legal force. It was possible and permissible for her to bring the issue up again during the trial. The applicant doubtlessly and correctly followed the sequence of domestic remedies. In the context of her public law appeal, the Federal Court intervened, or should have intervened, in respect of the complaint concerning the judge ordering detention. The Federal Court denied the applicant's practical interest and did not enter into her complaint. However in the next sentence of its decision the Court, as the Supreme Court handing down judgments which are nationally binding, stated that the objection lodged would in any event be unfounded, since both the Federal Court itself and as the European Court considered that the Zurich District Attorney acting in the investigation qualified as an officer authorised by law to exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. Once such a statement has been made, it is not possible afterwards simply to hide behind formal aspects. In actual fact, the Federal Court stated its position. It is common knowledge that these "in any event" statements have both in practice and in theory the effect of preliminary rulings. The Federal Court's decision not to intervene starkly contradicts its own practice whereby the Court consistently renounces the requirement of a current practical interest. In particular, the Court will examine the complaint, if the intervention complained of could be repeated at any time, and if in the individual case a timely constitutional review would hardly ever be possible (kaum je möglich wäre), so that the requirement of a practical interest would exclude the review of constitutionality. The applicant refers here to ATF 107 Ia 139 and 108 Ia 42. However, in most cases persons detained on remand are released before the Federal Court takes its decision on the application for release. If this criterion were applied, therefore, applications for release would largely be denied the possibility of constitutional review. As a result, the Federal Court regularly enters into public law appeals concerning the imposition of detention on remand without applying the requirement of current practical interest. It goes without saying that this must also apply to applications for release from detention on remand which have been complained of upon appeal, in so far as this is admissible under the relevant cantonal code of criminal procedure, as in the instant case under S. 419. In accordance with its constitutional importance and responsibility, the Federal Court as a rule also relinquishes the requirement of a personal interest where a complaint raises questions of fundamental importance, where priority must be given to the discharge of the Federal Court's function as supervisor of the rule of law, democracy and the Federal State. The applicant submits that the question of the independence of the judge deciding on detention on remand within the meaning of the Convention lies at the centre of constitutional credibility. In fact, the Federal Court should have entered into the public law appeal in accordance with Article 13 (Art. 13) of the Convention. Under that provision, the applicant has the right to an effective remedy before a national authority when rights or freedoms under the Convention have been violated, notwithstanding that the violation has been committed by persons acting in an official capacity. If, when a Convention violation has been alleged, the Federal Court takes no action because the violation has ceased in the meanwhile, it renders the guaranteed legal protection under the Convention devoid of all effect. The Federal Court did not conclude that the previous remedies had been employed incorrectly. The previous cases before the Convention organs concerning the District Attorney merely demonstrate that the issue can also be raised independently in appeal proceedings. The previous cases demonstrate that the complaint may no longer be raised and taken before a higher court in the context of complaints concerning the trial. III. As to the well-foundedness of the complaint under Article 5 para. 3 (Art. 5-3) of the Convention The applicant submits that the safeguard of the independence of judges in a constitutional state is a self-evident truth. In the present case, the applicant, with the assistance of the municipal police, was taken on 11 August 1983 to the office of the District Attorney in Zurich, on the strength of a warrant of arrest issued by that office, where she was interrogated as a witness. She was then placed in detention on remand by the District Attorney D.J. On 12 October 1984 the same District Attorney D.J. indicted the applicant before the Zurich District Court. Thus the same person D.J. was both the judge deciding on detention on remand and the prosecutor. However, a prosecutor can never be a judge or an officer authorised by law to exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of the Human Rights Convention. The prosecutor is a party. IV. Conclusion The applicant appears to request the Commission to declare the application admissible and to find a breach of Article 5 para. 3 (Art. 5-3) of the Convention. THE LAW 1. The applicant complains that the same District Attorney, who remanded her in custody, later also indicted her. Thus, the District Attorney could not be regarded as having been independent and was not "a judge or other officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. The applicant submits that she complied with the conditions of the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. She refers in particular to S. 419 of the Zurich Code of Criminal Procedure which envisages an appeal after conviction by the District Court to complain both about defects of the investigation and the trial. The applicant also draws attention to the decision of the Federal Court of 24 November 1986 in which the Court found that the applicant no longer had an interest in her public law appeal, but then continued that the complaint would in any event also be unfounded. Article 5 para. 3 (Art. 5-3) of the Convention states: "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. Release may be conditioned by guarantees to appear for trial." 2. The respondent Government submit in respect of Article 26 (Art. 26) of the Convention that the applicant has not complied with the conditions of the exhaustion of domestic remedies. In the Government's opinion, after the applicant was remanded in custody, she failed to file an appeal against her arrest and detention. She should have expected that the officer, who remanded her in custody, would also indict her, a fortiori as her lawyer had participated in other proceedings before the Convention organs concerning the same matter and was therefore aware of these issues. The Government point out that subsequently the Court of Appeal, in its judgment of 13 September 1985, confined itself to some general remarks, and that the Court of Cassation, in its judgment of 1 July 1986, did not consider the merits of the allegations. The Government further draw attention to the decision of the Federal Court of 24 November 1986 in which the Court found that the applicant lacked interest in her public law appeal as she had meanwhile been released from detention on remand. The Federal Court also found that the applicant had, in the substantiation of her public law appeal, not complied with the requirements under Swiss law. The Government thus conclude that the applicant did not make timely use of the appropriate remedies to contest her arrest or the investigation procedure, and that she did not observe the requirements under Swiss law for filing a public law appeal. 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. The Commission has first examined the Government's submissions according to which the applicant did not make timely use of the appropriate remedies to contest her arrest and detention on remand, and that the Federal Court found in its decision of 24 November 1986 that she lacked an interest in her public law appeal. The Commission considers, on the one hand, that in the light of the Zurich Judiciary Act and the Zurich Code of Criminal Procedure it was probable that the District Attorney's Office would eventually indict the applicant. In the Commission's opinion, however, it has not been made clear by the respondent Government how the applicant, or her representative, could thereby be expected to foresee that even the same officer at the District Attorney's Office, who had previously remanded her in custody, would eventually also indict her. On the other hand, the Commission notes that S. 419 of the Zurich Code of Criminal Procedure expressly envisages the possibility of an appeal with the Court of Appeal after conviction by the District Court, whereby complaints can be directed both against the investigation and the procedure and the decision of the District Court. In the present case the applicant raised her complaints under Article 5 para. 3 (Art. 5-3) of the Convention at the trial on 10 January 1985 after it became clear that the same District Attorney who remanded the applicant in custody also indicted her. Upon the applicant's acquittal by the District Court the Public Prosecutor's Office filed an appeal, whereupon the Court of Appeal on 13 September 1985 convicted the applicant. The Commission notes that in its judgment the Court of Appeal in fact dismissed the applicant's complaint under Article 5 para. 3 (Art. 5-3) as being unfounded in the light of the Federal Court's case-law, rather than declaring it inadmissible as being out of time. It is true that the Federal Court, in its judgment of 24 November 1986, declined to enter into the complaints under Article 5 para. 3 (Art. 5-3) of the Convention in view of the fact that the applicant had meanwhile been released from detention and therefore lacked an actual practical interest in her public law appeal. However, the Commission notes that the Federal Court then proceeded to state that in any event, in view of its own and the European Court's case-law on the matter, the complaint under Article 5 para. 3 (Art. 5-3) of the Convention would also be unfounded. The Commission is therefore satisfied that the Federal Court in fact dealt with this complaint in substance, and that the applicant has therefore in this respect complied with Article 26 (Art. 26) of the Convention. Insofar as the Government submit that the applicant did not observe the procedural requirements for filing a public law appeal the Commission recalls its constant case-law according to which there is no exhaustion of domestic remedies where a domestic appeal is not admitted because of a procedural mistake (see No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79). In the present case the Commission notes that in its decision of 24 November 1986 the Federal Court found that according to S. 90 of the Federal Judiciary Act the substantiation of a public law appeal has to be included in the appeal statement and that it could not therefore consider the notes of the applicant's representative relating to proceedings before the European Court of Human Rights. However, the Commission also observes that the Federal Court did not regard the applicant's public law appeal statement itself as being insufficiently substantiated. Indeed, the Federal Court then proceeded to discuss the applicant's complaint under Article 5 para. 3 (Art. 5-3) of the Convention. Also for this reason, therefore, the applicant complied with Article 26 (Art. 26) of the Convention. The applicant's complaints cannot therefore be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies. 3. The Government have further referred to their submissions in the proceedings in the Schiesser case before the European Court of Human Rights (see Series B No. 32, pp. 39 ff and 78 ff). The Commission considers that the applicant's complaint under Article 5 para. 3 (Art. 5-3) of the Convention, relating to the functions of the District Attorney concerned, raises difficult questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and must be declared admissible, no other grounds for declaring it inadmissible having been established. 4. In her reply to the Government's observations the applicant submitted on 13 April 1988 that the Federal Court should have entered into her public law appeal according to Article 13 (Art. 13) of the Convention. An issue could arise whether these submissions have been introduced in time within the meaning of Article 26 (Art. 26) of the Convention in view of the fact that they were filed more than six months after the Federal Court gave its judgment on 24 November 1986. However, the Commission considers that both the content of the submissions and their context make it clear that the applicant, rather than filing a new complaint, was intending to buttress her argument that she had in fact complied with the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies in respect of her complaint under Article 5 para. 3 (Art. 5-3) of the Convention. For these reasons, the Commission DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits of the case. Secretary to the Commission President of the Commission (H. C. KRÜGER) (C. A. NØRGAARD)