Rejected under Art. 29
Volltext (verifizierbarer Originaltext)
AS TO THE ADMISSIBILITY OF Applications Nos. 1) 15252/89
2) 15628/89
3) 17384/90 by N. against Switzerland The European Commission of Human Rights sitting in private on 13 May 1993, the following members being present: MM. C. A. NØRGAARD, President J. A. FROWEIN S. TRECHSEL G. SPERDUTI E. BUSUTTIL A. S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. G. SCHERMERS H. DANELIUS Mrs. G. H. THUNE Sir Basil HALL MM. F. MARTINEZ C. L. ROZAKIS Mrs. J. LIDDY MM. J.-C. GEUS M. P. PELLONPÄÄ B. MARXER G.B. REFFI M.A. NOWICKI Mr. M. de SALVIA, Deputy 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 1) 23 April 1987,
2) 25 July 1989 and 3) 10 September 1990 by N. against Switzerland and registered on 1) 20 July 1989,
2) 4 October 1989 and 3) 31 October 1990 under file Nos. 1) 15252/89, 2) 15628/89 and 3) 17384/90; Having regard to: - the Commission's decision of 8 April 1991 to join Applications Nos. 15252/89, 15628/89, 15629/89, 15630/89, 15857/89 and 17384/90; to communicate certain of the applicant's complaints in so far as they concern Applications Nos. 15252/89, 15628/89 and 17384/90; and to declare inadmissible the remainder of the applications; - the observations submitted by the respondent Government on 19 July 1991 and the observations in reply submitted by the applicant on 18 September 1991; - the Commission's decision of 11 May 1992 to declare Applications Nos. 15252/89, 15628/89 and 17384/90 admissible; - the Government's observations on the merits of 10 July 1992; - the Commission's decision of 30 March 1993 to request the applicant to comment on the Government's observations of 10 July 1992; - the information provided by the applicant on 19 April 1993; - the Government's submissions of 30 April 1993; 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 1935, is a pig-breeder residing at Oberbüren in Switzerland. On 15 December 1982 the police stopped the applicant in his car. As he was suspected of driving under the influence of alcohol, he underwent a breath analysis the result of which was positive. On 4 March 1983 criminal proceedings were instituted against the applicant. On 8 October 1985 the investigating judge questioned him. On 27 October 1985 the Wil District Office (Bezirksamt) informed the applicant of its intention to issue a penal order (Strafbefehl) against him. The applicant was given a time-limit of eight days to consult the case-file and submit any further evidence. On 5 November 1985 the applicant's lawyer asked for leave to consult the case-file. On 6 November 1985 the investigating judge replied that the time-limit had expired on 4 November 1985; he enclosed a penal order, dated 6 November 1985, in which the Wil District Office convicted the applicant of driving under the influence of alcohol and obstruction of official acts, and sentenced him to a fine of 200 SFr and two weeks' suspended imprisonment. The applicant filed an appeal claiming in particular that he had not received the letter of 27 October 1985 until 29 October, for which reason the time-limit had not expired until 6 November 1985. The appeal was dismissed by the Indictment Chamber (Anklagekammer) of the Canton of St. Gallen on 3 February 1986. The applicant's further public law appeal (staatsrechtliche Beschwerde) was rejected by the Federal Court (Bundesgericht) on 14 January 1987. Meanwhile, on 21 November 1985, the applicant filed an objection against the penal order. The case was referred to the Wil Judicial Commission (Gerichtskommission) which on 1 September 1987 confirmed the previous conviction. The applicant's appeal was dismissed on 8 March 1988 by the St. Gallen Cantonal Court (Kantonsgericht). On 16 December 1988 the Court of Cassation (Kassationsgericht) of the Canton of St. Gallen dismissed his plea of nullity (Nichtigkeitsbeschwerde). His subsequent plea of nullity to the Federal Court was dismissed on 28 February 1989. His public law appeal was dismissed by that court on 3 May 1989. COMPLAINTS In Application No. 15252/89 it appeared that the applicant complained under Article 6 para. 1 of the Convention of the length of the criminal proceedings instituted against him on account of driving under the influence of alcohol. In Application No. 15628/89 the applicant again referred to his complaints made in Application No. 15252/89. In his applications the applicant also complained about the length of proceedings instituted against the Canton of St. Gallen; and of the imposition of advance court costs. PROCEEDINGS BEFORE THE COMMISSION The applicant filed six applications which were introduced as follows: 1) Application No. 15252/89 on 23 April 1987; 2) No. 15628/89 on 25 July 1989; 3) No. 15629/89 on 18 May 1989; 4) No. 15630/89 on 18 May 1989; 5) No. 15857/89 on 3 October 1989; and 6) No. 17384/90 on 10 September 1990. These applications were registered as follows: 1) 20 July 1989;
2) 4 October 1989; 3) 16 October 1989; 4) 16 October 1989;
5) 4 December 1989; and 6) 31 October 1990. In his statement of 23 April 1987, leading to Application No. 15252/89, the applicant appeared to complain that the criminal proceedings instituted against him were not being conducted within a reasonable time as required by Article 6 para. 1 of the Convention. In the application form leading to Application No. 15628/89, which concerned the criminal proceedings instituted against the applicant, he again referred to the statement of 23 April 1987. On 8 April 1991 the Commission decided to join the applications; to communicate them in so far as they concerned the complaints about the length of the proceedings instituted against the Canton of St. Gallen, the length of the criminal proceedings instituted against the applicant, and the court costs of 6,500 SFr which the applicant was asked to pay in the proceedings against the Swiss Confederation; and to declare inadmissible the remainder of the applications. The Government's observations were received by letter dated 19 July 1991. The applicant's observations were dated 18 September 1991. He stated that he had not maintained that the criminal proceedings instituted against him had lasted too long before the Federal Court ("admis que le requérant n'a pas fait valoir que les procédures en question avaient été trainées en longeur par le Tribunal Fédéral"). On 11 May 1992 the Commission declared Applications Nos. 15252/89, 15628/89 and 17384/90 admissible insofar as they concerned the applicant's complaints under Article 6 para. 1 of the Convention about the length of the proceedings instituted against the Canton of St. Gallen; the length of the criminal proceedings instituted against the applicant; and about the advance court costs. On 10 July 1992 the Government maintained that the applicant had not in his applications before the Commission invoked the complaint under Article 6 para. 1 of ther Convention about the length of the criminal proceedings instituted against him. By decision of 30 March 1993 the Commission requested the applicant to comment on the Government's observations. By letter of 19 April 1993 the applicant informed the Commission that he had not originally raised the complaint under Article 6 para. 1 of the Convention about the length of the criminal proceedings instituted against him, though he would now raise it. By letter of 30 April 1993 the Government invited the Commission to declare the application inadmissible under Article 29 of the Convention. THE LAW On 11 May 1992 the Commission declared admissible the issue under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the criminal proceedings instituted against the applicant. In their further observations of 10 July 1992 the Government maintained that the applicant had not in his applications before the Commission made the complaint at issue. By letter of 19 April 1993 the applicant informed the Commission that he had not originally raised the complaint under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the criminal proceedings instituted against him, though he would now raise it. In view thereof the Government have invited the Commission to declare this complaint inadmissible under Article 29 (Art. 29) of the Convention. Article 29 (Art. 29) of the Convention states: "After it has accepted a petition submitted under Article 25 (Art. 25), the Commission may nevertheless decide by a majority of two-thirds of its members to reject the petition if, in the course of its examination, it finds that the existence of one of the grounds for non-acceptance provided for in Article 27 (Art. 27) has been established. In such a case, the decision shall be communicated to the parties." In the present case, it originally appeared that the applicant was filing a complaint under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the criminal proceedings instituted against him. According to his observations of 18 September 1991, however, he had apparently not maintained that the criminal proceedings instituted against him had lasted too long before the Federal Court. In these circumstances, the applicant was asked to clarify the situation. The applicant now states that he did not originally raise the complaint at issue. However, he has also stated that he is now raising the complaint. Under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter "within a period of six months from the date on which the final decision was taken." The Commission has satisfied itself that the applicant did not originally raise the complaint at issue. Insofar as the applicant stated on 19 April 1993 that he would now raise the complaint under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the criminal proceedings instituted against him, the Commission notes that the final decision regarding this complaint was given by the Federal Court on 3 May 1989. The complaint at issue was therefore introduced more than six months after the date of this decision. Furthermore, an examination of the case does not disclose the existence of any special circusmtances which might have interrupted or suspended the running of that period. This part of the applications would therefore fall to be rejected on the ground of inadmissibility provided for in Article 27 para. 3 (Art. 27-3) of the Convention. Under these circumstances, the Commission is of the opinion that this part of the applications should be rejected under Article 29 (Art. 29) of the Convention since one of the grounds for non-acceptance provided for in Article 27 (Art. 27) of the Convention has been established. For these reasons, the Commission, unanimously, and thus by the majority required in Article 29 (Art. 29), REJECTS THE APPLICATIONS insofar as they concern the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention of the length of criminal proceedings instituted against himself. Deputy Secretary to the Commission President of the Commission (M. de SALVIA) (C.A. NØRGAARD)