28286/95

 AS TO THE ADMISSIBILITY OF Application No. 28286/95 by W. O. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present: MM M.P. PELLONPÄÄ, President S. TRECHSEL N. BRATZA A. WEITZEL C.L. ROZAKIS Mrs J. LIDDY MM L. LOUCAIDES B. MARXER I. BÉKÉS G. RESS A. PERENIC C. BÎRSAN K. HERNDL Mrs M. HION Mr R. NICOLINI Mrs M.F. BUQUICCHIO, 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 18 August 1995 by W. O. against Switzerland and registered on 22 August 1995 under file No. 28286/95; Having regard to: - the reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the observations submitted by the respondent Government on 25 March 1997 and the observations in reply submitted by the applicant on 7 May 1997; Having deliberated; Decides as follows: THE FACTS The applicant, a Swiss citizen born in 1921, is a retired notary residing in Einsiedeln in Switzerland. Before the Commission he is represented by Mr F. Huwyler, a lawyer practising in Schwyz in Switzerland. The facts of the case, as submitted by the parties, may be summarised as follows. Until his retirement in 1986 the applicant was notary and real property administrator (Grundbuchverwalter) of the Einsiedeln District. On 8 April 1986 the Einsiedeln District Council (Bezirksrat) filed a criminal action (Strafklage) against the applicant on suspicion of having embezzled money (Veruntreuung) and forged documents (Urkundenfälschung) on many occasions. For instance, acting in his official functions the applicant misappropriated and disloyally managed monies entrusted to him. When registering real property transactions he had on over a hundred occasions stated the wrong date. He had also annulled servitudes (Dienstbarkeiten) concerning other persons in his own favour. The facts leading to these charges went back to 1979. Criminal investigations were then instituted as a result of which the applicant was remanded in custody in August 1986. Among the investigations undertaken, it appears that a request for information was filed with a German court. On 27 November 1987, during the investigations, the applicant's lawyer requested, with reference to the complexity of the case, an extension of the time-limit until the end of 1987 for consulting the case-file, and until 15 January 1988 for filing a supplementary request. On 31 December 1987 he requested, with reference, inter alia, to an illness, an extension of the time-limits until 31 January and 15 February 1988, respectively. On 1 February 1988 he requested an extension of the time-limit until 29 February 1988 for filing a supplementary request. The investigations were concluded on 28 July 1988 when the proceedings were transferred to the Public Prosecutor's Office (Staatsanwaltschaft). On 29 September 1988 the Public Prosecutor's Office filed the bill of indictment (Anklage) against the applicant. Proceedings were then continued before the Criminal Court (Strafgericht) of the Canton of Schwyz. On 7 November 1988 the applicant's lawyer requested a prolongation of the time-limit to file requests for the taking of evidence until the end of November. On 30 November 1988, he requested a further prolongation until 10 December 1988. The trial before the Criminal Court was fixed for 7 February 1989, whereupon the applicant's lawyer requested the fixing of a new date in the second half of the month. The trial was then held on 23 and 24 February 1989. On 17 March 1989 the Criminal Court gave its decision in which it convicted the applicant, inter alia, of embezzlement and forging documents, and sentenced him to 16 months' imprisonment, suspended on probation for a period of two years. He was also sentenced to a fine of 6,000 Swiss Francs. The applicant was acquitted of other charges; in respect of two charges the case was referred back to the prosecuting authorities. The applicant's appeal was partly upheld by the Cantonal Court (Kantonsgericht) of the Canton of Schwyz on 15 May 1990. The Court found that the Criminal Court, rather than referring certain charges back to the prosecuting authorities, should itself have decided the issues. As a result, the Cantonal Court quashed the previous decision. Proceedings were resumed before the Criminal Court which on 26 July 1990 ordered the Investigation Office (Verhöramt) to conduct evidence proceedings. On 17 April 1991 the investigations were concluded. On 12 December 1991 the Public Prosecutor's Office filed a supplementary bill of indictment (ergänzende Anklage). On 23 December 1991 the applicant's lawyer requested a period of three weeks to file his observations. In March 1992, the applicant's lawyer was requested to comment on the case-file and file any requests for the taking of evidence before the end of the month. On 30 March 1992 he filed a request to postpone this time-limit until 15 April 1992. The trial was held before the Criminal Court on 21 and 22 May 1992. The decision of the Criminal Court, dated 21 and 22 May 1992, convicted the applicant, inter alia, of the offences of embezzlement and forging documents, and acquitted him of other offences. He was sentenced to 21 months' unconditional imprisonment and a fine of 6,000 Swiss Francs (CHF). The judgment was served on the applicant on 28 October 1992. Against this judgment the applicant filed an appeal with the Cantonal Court on 4 November 1992. An appeal hearing was held before the Cantonal Court on 3 May 1994. The Court's decision, issued on the same day, sentenced the applicant to 24 months' unconditional imprisonment. When deciding on the punishment, the Cantonal Court considered that the applicant had complained of the length of the proceedings, having so far lasted six years and 10 months. While such a period appeared long, the Court considered that the case was complex and the applicant had constantly presented new versions of the facts. Even in the appeal proceedings the applicant had requested referring the case back to the previous instance, and he had not objected when on 15 May 1990 the case had been referred back to the Criminal Court. Nevertheless, the length of the proceedings constituted a mitigating element when deciding on the punishment, though the previous sentence of 21 months had been too mild. On 4 July 1994 the applicant filed a public law appeal (staats- rechtliche Beschwerde) and his plea of nullity (Nichtigkeitsbeschwerde) with the Federal Court (Bundesgericht). These appeals were dismissed by the Court in two decisions dated 27 January 1995. The decisions were served on the applicant on 22 March 1995. In its decisions, the Court referred, inter alia, to the applicant's complaint under Article 6 para. 1 of the Convention about the undue length of the proceedings. The Court found that the Cantonal Court had duly considered the length as a mitigating circumstance and that, according to the findings of the Cantonal Court, the applicant himself had accepted that the proceedings before the Cantonal Court had not lasted unduly long. On 13 July 1995 the Petitions Commission (Petitionskomission) of the Canton of Schwyz dismissed the applicant's request for pardon, there being no indication of serious miscarriage of justice. On 8 February 1996 the Administrative Court of the Canton of Schwyz decided, with reference to two medical expert opinions, that in view of the applicant's depression he was unable to serve his sentence (nicht hafterstehungsfähig). COMPLAINTS The applicant complains under Article 6 para. 1 of the Convention of the undue length of the proceedings. He did not contribute to the length, whereas the prosecuting authorities committed many mistakes. He refers to the psychological stress which he suffered. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 18 August 1995 and registered on 22 August 1995. On 17 January 1997 the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 25 March 1997. The applicant replied on 7 May 1997. THE LAW The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the undue length of the proceedings. He did not contribute to the length, whereas the prosecuting authorities committed many mistakes. He refers to the psychological stress which he suffered. Article 6 para. 1 (Art. 6-1) of the Convention states, as far as relevant: "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ..." The Government contend that the applicant's complaints are inadmissible as being manifestly ill-founded. It is submitted that the proceedings to be examined under Article 6 para. 1 (Art. 6-1) of the Convention commenced in June 1986 when the applicant was briefly remanded in custody, and ended on 22 March 1995 when the Federal Court's judgments were served on the applicant. The Government consider that, while the proceedings may appear long, in fact, if the different stages are assessed independently, they were conducted rapidly. Even the investigations, which were originally pursued in the wrong direction, were conducted with care and speed, which explains why later they had to be complemented. Indeed, nowhere in his submissions does the applicant sufficiently point to concrete delays in the proceedings. The Government submit that the complexity of the case contributed to the length of the proceedings. Thus, the case comprised a large number of offences, in respect of which there was little case-law, with facts going back to 1979, and involving two complainants, i.e. the Einsiedeln District and a private person. The applicant himself had not kept any accounts, and an impressive number of documents had to be examined in detail. Investigations were even undertaken in Germany. Reference is also made to the volume of the various judgments, e.g. the judgment of the Criminal Court of 17 March 1989 comprising 102 pages, with minutes of the hearing amounting to 246 pages; the judgment of the Cantonal Court of 15 May 1990 comprising 87 pages; the second judgment of the Criminal Court of 21/22 May 1992 comprising 61 pages, with minutes of the hearing amounting to 67 pages; and the judgment of the Cantonal Court of 3 May 1994 of 83 pages. Even the decision of the Administrative Tribunal of 8 February 1996 amounted to 22 pages. The Government further contend that the applicant himself contributed to the length of the proceedings. Thus, he at times modified his version of the facts, and on various occasions - 27 November and 31 December 1987, 1 February and 7 and 30 November 1988; 31 January and 23 December 1991; and 30 March 1992 - he requested an extension of the time-limit. Moreover, in the second set of proceedings, the Cantonal Court actually intended to fix the hearing in February 1994, though the applicant's lawyer was too busy, and the hearing was then fixed for 3 May 1994. Finally, the Government point out that in its judgment of 3 May 1994 the Cantonal Court duly considered the length of proceedings when determining the applicant's sentence. The Government refer in this case to the comparable case of R.B. v. Switzerland where the Commission found no violation of Article 6 para. 1 (Art. 6-1) of the Convention, as that applicant's sentence had been reduced as a result of the length of the proceedings (see Comm. Report 24.5.91, para. 60). The applicant submits that he was first officially informed of the criminal proceedings instituted against him on 8 April 1986, though he suspects that investigations were already commenced beforehand, even as early as 1984. The judgment of the Criminal Court of 19 September 1988 later had to be set aside in view of numerous procedural errors. In any event, the applicant was acquitted in respect of a substantial number of charges. The proceedings in 1989 were nerve-racking, as the investigations had to commence again. The applicant contends that the fact that the first proceedings had to be declared invalid and new investigations carried out, leading to a new indictment, constitutes in itself a ground for assuming that the proceedings lasted too long. In any event, the fact that two sets of proceedings were conducted should have been sufficient reason to expedite the individual stages. However, after completion of the second investigation, a further eight months elapsed until the supplementary bill of indictment was filed on 12 December 1991. It took another five months for the Criminal Court to deliver its second judgment of 21/22 May 1992, and a further 18 months passed, after the appeal statement was filed, until the Cantonal Court gave its judgment on 3 May 1994. The applicant emphasises that his lawyer made every effort to expedite the proceedings, and did not request any unnecessary extensions of time-limits. In any event, the extensions were of short duration, and the applicant's lawyer was never reproached during the proceedings for having made excessive use of his rights as defence lawyer. The fact that the applicant lodged appeals was something he had every right to do in order to defend himself. In the applicant's view, the domestic courts on the whole admitted that the proceedings had lasted too long. However, they failed to recognise that a period of eight years, involving a serious psychological and physical burden, was a punishment in itself. The courts were obviously overtaxed by the entire proceedings, and he cannot be blamed for this. The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, the application is not manifestly ill- founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. M.F. BUQUICCHIO M.P. PELLONPÄÄ Secretary President to the First Chamber of the First Chamber