20552/92

 AS TO THE ADMISSIBILITY OF Application No. 20552/92 by Marc ACHTARI against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 5 April 1995, the following members being present: Mr. H. DANELIUS, President Mrs. G.H. THUNE MM. G. JÖRUNDSSON S. TRECHSEL J.-C. SOYER H.G. SCHERMERS F. MARTINEZ L. LOUCAIDES J.-C. GEUS M.A. NOWICKI I. CABRAL BARRETO J. MUCHA D. SVÁBY Mr. K. ROGGE, Secretary to the Chamber Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 23 July 1992 by Marc Achtari against Switzerland and registered on 27 August 1992 under file No. 20552/92; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the applicant, may be summarised as follows: The applicant, a Swiss citizen born in 1946, is a pharmacist. Before the Commission he is represented by Mr Jean Lob, a lawyer practising in Lausanne. On 3 November 1988 the investigating judge of the Glâne district issued a warrant of arrest against the applicant, suspected of having killed his associate, Mr. M.F. On the same day the applicant was detained on remand. On 13 April 1989 the Indictment Chamber of the Cantonal Court of the Canton of Fribourg (Chambre d'Accusation du Tribunal Cantonal de Fribourg) committed the applicant for trial before the Glâne Criminal Court (Tribunal criminel) on suspicion of homicide or, alternatively, murder. On 29 June 1989 the Glâne Criminal Court convicted the applicant of murder and sentenced him to life imprisonment. The applicant filed an appeal in cassation and a public law appeal against this judgment. On 29 November 1989 the Federal Court (Tribunal Fédéral) quashed the attacked judgment, finding that the lower Court had been assisted by a registrar (greffier-juriste) who had previously participated in the taking of important investigative measures. The Federal Court referred the case to the Cassation Court for the Canton of Fribourg (Cour de cassation du canton de Fribourg). On 4 December 1989 this Court referred the case to the Gruyère Criminal Court for reconsideration. On 3 April 1990 the Gruyère Criminal Court convicted the applicant of homicide, by poisoning M. F. with potassium cyanide put into a can of beer, and sentenced him to ten years' imprisonment. The Court found that late in the evening of 24 October 1988, the applicant, the victim M.F., a pharmacist P.S. and his girlfriend M.C. had been working at a pharmacy, owned by the applicant and the victim. They had been drinking beer from cans. At a certain moment the applicant noticed that his beer had a strange smell. Thereupon he had exchanged his can for that of the victim. Shortly afterwards M.F. had complained that his beer had terrible taste ("mais elle est déguelasse cette bière") and had lost consciousness. A doctor had arrived with an ambulance and tried to resuscitate M.F. The applicant had failed to tell him about the acid smell of the beer; it was P.S. who had done so. M.F. had been taken to a hospital and died shortly thereafter. An autopsy made by the Forensic Medicine Institute in Lausanne had shown that the beer had contained potassium cyanide. The Court considered the evidence given, inter alia, by P.S. and M.C., who had been present at the premises at the material time, three security agents present in the building, the physician who had attempted to resuscitate the victim, the ambulance assistant, the victim's wife, other family members, taped phone conversations between the victim's wife and, inter alia, P.S. and M.C, and a psychiatric opinion about the applicant. The Court noted that the applicant had consistently denied that he had poisoned M.F., and that there were no direct witnesses of the poisoning, nor any irrefutable material evidence. The Court further considered six hypotheses as to the possible course of events leading to the victim's death, namely an accident, a suicide, the victim's attempt to kill the applicant, an action of either M.C. or P.S., a conspiracy of unknown third parties against the victim, and the action of an unidentified third person who could have penetrated into the pharmacy at the material time without being seen. The Court excluded all these possibilities and concluded that it appeared most plausible that the crime had been committed by the applicant. In establishing the possible motives of the applicant the Court pointed to his troubled business relations with the victim and to a difficult character of the latter. The Court had regard to the varying versions of the facts given by the applicant in the course of the investigations. The Court took into account the applicant's failure to tell the doctor about the change of the smell of beer, as well as the fact that it was only at a late stage of the investigations that the applicant had told the investigating judge about the exchange of beer cans. These latter factors, in the Court's opinion, negatively affected his credibility. The Court considered that the principle "in dubio pro reo" on the one hand related to the burden of proof in that it obliged the court to prove guilt of the accused and not the accused to prove his innocence. On the other hand this principle prohibited arbitrary appreciation of evidence. However, it did not oblige the Court to retain a solution most favourable to the accused. On 17 September 1990 the Fribourg Court of Cassation dismissed the applicant's plea of nullity. The Court noted that the lower Court had excluded other hypotheses as to the possible cause of the victim's death on the basis of a thorough and well-motivated reasoning; that the Court had not overstepped the margin of appreciation in making conclusions relating to the gaps and inconsistencies in the evidence given by the applicant, in particular as to the fact that he had exchanged the beer cans between himself and the victim, and as to his failure to tell the ambulance doctor about the change of the smell of the beer. The Court concluded that there was no arbitrariness in the assessment of evidence by the lower Court. The applicant filed a public law appeal with the Federal Court, complaining under Article 6 para. 2 of the Convention and Article 4 of the Federal Constitution that the authorities had disregarded the presumption of innocence and had proceeded from the assumption that he was guilty. This had led the Courts to disregard the evidence which was more favourable to the applicant and to attach undue importance to evidence pointing to his guilt. As a result, the assessment of evidence was arbitrary. On 29 January 1992 the Federal Court dismissed the applicant's public law appeal. In its decision, numbering 28 pages, the Court analysed the findings of the lower Courts relating to the exchange of the beer cans and to the applicant's failure to tell the doctor about the strange smell of the beer. The Court examined the conclusions which the Courts had drawn therefrom as to the applicant's guilt. The Court considered that these conclusions were not untenable, as alleged by the applicant. It was true that the lower courts had not convicted the applicant on the basis of any material proof, but on the basis of concurring indications ("faisceau d'indices"). However, Article 6 para. 2 of the Convention did not require an absolute certainty of the evidence; but only that guilt should be attributed if objective analysis of the evidence did not allow for the conclusion that the accused was not guilty. The Court considered that "nothing [in the deliberations of the cantonal courts] supports an opinion that they had acted in such a manner as to presuppose guilt of the applicant and to interpret the facts systematically to his disadvantage in order to set aside the evidence which was favourable for him" ("rien dans les éléments ainsi débattus ne permet de dire que les autorités cantonales seraient parties d'une présomption de culpabilité du recourant detenant systématiquement à sa charge des faits douteux pour écarter ce qui dans l'administration des preuves lui a été favorable"). The Court concluded that the first instance court had not surpassed the limits of appreciation of evidence or established facts in a arbitrary manner in excluding other hypotheses as to the causes of the victim's death. COMPLAINTS The applicant complains of a breach of Article 6 para. 2 of the Convention according to which everybody shall be presumed innocent until proven guilty according to law. The applicant submits that he was convicted on the basis of insufficient evidence, contrary to the principle that the guilt must be firmly established. He complains that the assessment of evidence made throughout the proceedings was arbitrary. He submits that the Federal Court's restrictive interpretation of this provision diminishes the protection afforded by Article 6 of the Convention. THE LAW The applicant complains under Article 6 para. 2 (Art. 6-2) of the Convention that he was convicted on insufficient evidence, contrary to the principle that the guilt must be firmly established. He submits that he was not presumed innocent until proven guilty in accordance with the law. He complains that the assessment of evidence made throughout the proceedings was arbitrary. With regard to the judicial decisions of which the applicant complains, the Commission recalls that under Article 19 (Art. 19) of the Convention its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers on this point to its established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31, 45). Insofar as the applicant complains under Article 6 para. 2 (Art. 6-2) of the Convention that he was not presumed innocent until proven guilty, the Commission recalls that the presumption of innocence will be violated if, without the accused's having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no.146, p.31, para. 67 et seq.). In the present case the applicant does not adduce any argument which would indicate that the presumption of innocence was disregarded in the proceedings at issue, other than the assessment of evidence made by the Courts. It does not appear from the case-file that during the proceedings the Courts, before finding the applicant guilty on the basis of the evidence, took decisions reflecting the opinion that the applicant had committed the acts which he was charged with. Insofar as the applicant complains about arbitrary assessment of evidence, the Commission recalls that it is primarily for the national courts to assess the evidence before them. The Convention organs' task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, para. 26). In the present case there is no indication that the proceedings were unfairly conducted or that the applicant, who was represented by a lawyer, could not adduce any evidence which he regarded as being pertinent or to put forward any argument he considered relevant. The Federal Court undertook a detailed analysis, numbering 28 pages, of the applicant's complaints, addressing the issue of the assessment of evidence by the first instance court. It concluded that the lower courts had not overstepped the limits of appreciation of evidence or established facts in a arbitrary manner in excluding other hypotheses as to the causes of the victim's death. The Commission does not find these conclusions arbitrary or otherwise unfair. It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Second Chamber President of the Second Chamber (K. ROGGE) (H. DANELIUS)