15736/89

 AS TO THE ADMISSIBILITY OF Application No. 15736/89 by D. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 8 July 1991, the following members being present: MM. J.A. FROWEIN, President of the First Chamber S. TRECHSEL F. ERMACORA E. BUSUTTIL A.S. GÖZÜBÜYÜK J.-C. SOYER H. DANELIUS Sir Basil HALL MM. C.L. ROZAKIS L. LOUCAIDES B. MARXER Mr. M. de SALVIA, Secretary to the First Chamber Having regard to: - Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; - the application introduced on 13 December 1989 by D. against Switzerland and registered on 7 November 1989 under file No. 15736/89; - the observations submitted by the respondent Government on 10 June 1991 and the observations in reply submitted by the applicant on 27 June 1991; 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 Yugoslav citizen born in 1955, resides at Vinkovci in Yugoslavia. Before the Commission he is represented by Mr. K. Mäder, a lawyer practising at Zurich in Switzerland. A. Particular circumstances of the case On 13 March 1987 the applicant was remanded in custody by the Zurich District Attorney's Office (Bezirksanwaltschaft) on suspicion of having committed the offences of fraud, forging documents and disregarding an expulsion order (Verweisungsbruch). The warrant of arrest was signed by District Attorney L. On 3 June 1987 the District Attorney's Office indicted the applicant before the Zurich District Court (Bezirksgericht) of the offences concerned. The indictment was signed by the District Attorney L. On 26 June 1987 the Zurich District Court convicted the applicant of the offences of fraud, forging documents and disregarding an expulsion order and sentenced him to twelve months' imprisonment. The period spent in detention on remand, amounting to 106 days, was deducted from the sentence. Both the applicant and the Public Prosecutor's Office appealed against this judgment to the Court of Appeal (Obergericht) of the Canton of Zurich. On 19 January 1988 the Court of Appeal sentenced the applicant to 15 months' penal servitude and a fine of 1,000.-- SFr. The applicant was also ordered to leave Switzerland for ten years. The period spent in detention on remand amounting to 313 days was deducted from the sentence. The applicant's plea of nullity (Nichtigkeitsbeschwerde) was dismissed by the Court of Cassation (Kassationsgericht) of the Canton of Zurich on 13 June 1988. With regard to the applicant's complaint under Article 5 para. 3 of the Convention as to the Zurich District Attorney the Court referred to the decision of the European Court of Human Rights in the Schiesser case (see Eur. Court H.R., judgment of 4 December 1979, Series A no. 34). It considered that the position of the Zurich District Attorney, in particular his independence, complied with the requirements of Article 5 para. 3 even if, as in the applicant's case, the same District Attorney had remanded the applicant in custody and later indicted him. The applicant then filed a public law appeal (staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht) dismissed on 14 March 1989. On the basis of a detailed analysis of the case-law of the Convention organs, the Court found that for purposes of determining the independence of the "judge or other officer" mentioned in Article 5 para. 3 of the Convention it had in first line to rely on the date when the accused was remanded in custody. The Court continued (at p. 13 of the judgment):

"If ... according to the usual course of events, one cannot immediately assume that the District Attorney who orders detention on remand will later also exercise the function of the prosecution, he cannot when confirming detention be declared a party and therefore dependent. It must be admitted that there is indeed the possibility for the District Attorney subsequently to prepare the indictment and possibly to present it - as the present case shows. The circumstance of the mere possibility, however, cannot be of decisive importance. For one, this circumstance cannot have the effect that the independence originally given upon the moment of arrest can, so to say, subsequently be called in question and set aside by the parties .... On the other hand, this circumstance is confirmed precisely by the decision of the Court in the Schiesser case. Here, too, there was the possibility of a subsequent indictment by the District Attorney, as the competence of the Public Prosecutor's Office was not yet determined at the outset of the investigation and the arrest respectively; despite this possibility the Court found no violation of Article 5 para. 3 in the Schiesser case. This circumstance, too, shows that only the moment of arrest and not of the possible later activity and of the later indictment can be decisive."

"Kann ... nach dem üblichen Lauf der Dinge nicht ohne weiteres damit gerechnet werden, dass der die Untersuchungshaft anordnende Bezirksanwalt in der Folge auch die Funktion der Strafverfolgung ausübt, so kann dieser im Zeitpunkt der Haftbestätigung auch nicht als Partei und damit abhängig bezeichnet werden. Es ist zwar einzuräumen, dass für den Bezirksanwalt in der Tat die Möglichkeit besteht, in der Folge auch die Anklage zu erheben und allenfalls zu vertreten - wie der vorliegende Fall zeigt. Dem Umstand der blossen Möglichkeit kommt indessen keine entscheidende Bedeutung zu. Zum einen kann er nicht bewirken, dass die vorerst im Zeitpunkt der Verhaftung gegebene Unabhängigkeit von den Parteien gewissermassen nachträglich in Frage gestellt und beseitigt würde ... Zum andern wird dies gerade durch die Entscheidung des Gerichtshofes im Falle Schiesser belegt. Auch hier bestand an sich die Möglichkeit einer späteren Anklageerhebung durch den Bezirksanwalt, da die Zuständigkeit der Staatsanwaltschaft zur Zeit des Beginns der Untersuchung bzw. der Verhaftung noch nicht feststand; trotz dieser Möglichkeit aber hat der Gerichtshof im Falle Schiesser eine Verletzung von Art. 5 Ziff. 3 EMRK verneint. Auch dieser Umstand zeigt, dass ausschliesslich auf den Zeitpunkt der Verhaftung, und nicht auf die nur mögliche spätere Tätigkeit und spätere Anklageerhebung abgestellt werden kann." B. 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 deal with; 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. 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 and must be given the opportunity to invalidate these reasons. S. 31 StPO generally obliges the investigating officer to consider exculpating and inculpating circumstances with equal care. 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 District Attorney's Office does not intend to prosecute the accused, the investigation is discontinued (S. 39 StPO). Otherwise, the indicting authority, i.e. the District Attorney's Office or the Public Prosecutor's Office, commences the main proceedings (Hauptverfahren) by submitting the bill of indictment (S. 161 StP0). The President of the District Court or of the Prosecuting Chamber of the Court of the District 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 and 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 allows an appeal to the Court of Appeal in which complaints may be raised alleging defects (Mängel) both of the investigation and of the procedure (Verfahren) and the decision of the first instance court. COMPLAINTS The applicant complains that, contrary to Article 5 para. 3 of the Convention, the same District Attorney first decided on the applicant's detention and later indicted him. Thus the District Attorney could not be regarded as having been independent as required by that provision. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 13 September 1989 and registered on 7 November 1989. On 7 January 1991 the Commission decided that notice of the application should be given to the respondent Government and that the parties should be invited to submit until 22 March 1991 written observations on the admissibility and merits of the application. On 26 February 1991 the Commission decided to refer the application to the First Chamber. Following the Government's request of 4 February 1991 to adjourn the proceedings, the President of the Commission decided to prolong the time-limit for submitting the observations on the admissibility and merits of the application until 1 May 1991. Following a further request of the Government of 22 April 1991, the Commission (First Chamber) decided on 28 May 1991 to invite the Government to submit their observations until 19 June 1991. The Government's observations were submitted on 10 June 1991 and the applicant's observations in reply on 27 June 1991. THE LAW The applicant complains that, contrary to Article 5 para. 3 (Art. 5-3) of the Convention, the same District Attorney first decided on his detention and later indicted him. Thus the District Attorney could not be regarded as having been independent as required by that provision. In the light of the principles laid down in the Huber case (Eur. Court H.R., judgment of 23 October 1990, Series A No. 188) the Government do not contest the admissibility of the application in that the same District Attorney first decided on the applicant's detention and later indicted him. The Commission finds that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. As no other ground for declaring it inadmissible has been established the application is admissible. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE. Secretary to the First Chamber President of the First Chamber (M. de SALVIA) (J.A. FROWEIN)