29356/95

 AS TO THE ADMISSIBILITY OF Application No. 29356/95 by Hugo BLUMENTHAL against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 27 November 1996 the following members being present: Mrs. J. LIDDY, President MM. S. TRECHSEL M.P. PELLONPÄÄ E. BUSUTTIL A. WEITZEL B. CONFORTI N. BRATZA I. BÉKÉS G. RESS C. BÎRSAN K. HERNDL M. VILA AMIGÓ Mrs. M. HION 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 16 October 1995 by Hugo Blumenthal against Switzerland and registered on 23 November 1995 under file No. 29356/95; Having regard to: - the reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the Commission's decision of 18 January 1996 to communicate the application under Article 6 of the Convention and to declare inadmissible the remainder of the application; - the observations submitted by the respondent Government on 11 March and 19 August 1996, the observations in reply submitted by the applicant on 2 May and 23 September 1996; Having deliberated; Decides as follows: THE FACTS The applicant, a Swiss citizen born in 1941, is a businessman residing at Bad Ragaz in Switzerland. The facts of the case, as submitted by the parties, may be summarised as follows. A. Particular circumstances of the case On 16 April 1986 the Federal Banking Commission (Eidgenössische Bankenkommission) filed a criminal report against the applicant on suspicion inter alia of professional fraud, disloyal management, negligent bankruptcy and the suppression of documents. The applicant, who was the responsible agent (Geschäftsführer) of the Euroinvestor foundation in Vaduz in the Principality of Liechtenstein was in particular suspected of having induced, by means of misleading information, 867 investors to pay money into trust accounts of the Euroinvestor which in reality had been used for stock exchange and foreign exchange speculations. Following first investigations in Switzerland and Liechtenstein the proceedings were taken over by the Zurich District Attorney's Office (Bezirksanwaltschaft) on 2 October 1987. On 9 August 1988 the District Attorney's Office requested the Liechtenstein authorities to take over the investigations. The Liechtenstein Public Prosecutor's Office (Staatsanwaltschaft) replied on 14 December 1988 that it had requested the investigating judge of the Regional Court (Landgericht) of Liechtenstein to institute criminal proceedings against the applicant and other persons on the basis of the facts established by the Zurich authorities. In view of the proceedings in Liechtenstein the Zurich District Attorney's Office temporarily suspended the proceedings in Switzerland on 6 March 1989. On 30 January 1990 the Government of the Principality of Liechtenstein ordered the dissolution of the Euroinvestor foundation in the course of which further charges were raised against the applicant. The company's bankruptcy was ordered on 16 May 1990. On 30 March 1990 the Zurich authorities issued an international warrant of arrest against the applicant. Following a television broadcast which referred to the applicant's case he was arrested on 14 January 1991 in France. On 31 January 1991 the Liechtenstein authorities requested the Zurich authorities to take over the criminal proceedings instituted against the applicant. This was confirmed on 22 May 1991 by the Zurich authorities. Meanwhile, the applicant was extradited to Switzerland on 11 April 1991 where he was detained on remand. On 16 April 1991 the applicant requested his release from detention on remand. Later, he contested a further decision of 23 May 1991 to prolong his detention on remand; his appeal was dismissed by the Zurich Court of Appeal (Obergericht) on 14 June 1991 and his public law appeal in last resort by the Federal Court (Bundesgericht) on 16 November 1991. On 18 October and 10 December 1991 the Zurich authorities also took over criminal proceedings pending, respectively, before the Public Prosecutor's Offices of Tübingen and Ravensburg in Germany. The applicant's further request for release from detention was dismissed, upon appeal, by the Indictment Chamber on 6 February 1992. On 15 April 1992 the applicant was released from detention on remand. On 23 February 1992 the Zurich District Attorney's Office indicted the applicant. His subsequent appeal was declared inadmissible on 29 April 1993 by the Zurich Court of Appeal and on 25 June 1993 by the Federal Court. On 14 October 1993 the Zurich District Court (Bezirksgericht) sentenced the applicant on account of, inter alia, professional fraud, disloyal management, negligent bankruptcy and the suppression of documents to forty months' imprisonment and a fine of 20'000 SFr. Upon appeal the Zurich Court of Appeal on 28 June 1994 increased the sentence to 54 months' imprisonment. His plea of nullity (Nichtigkeitsbeschwerde), in which he also complained about the length of the proceedings, was dismissed by the Court of Cassation (Kassationsgericht) of the Canton of Zurich on 24 January 1995. Meanwhile, the applicant filed a further plea of nullity on 5 September 1994 with the Federal Court in which he complained that the Swiss courts lacked jurisdiction in his case as the European Extradition Agreement had been breached; he also complained of the punishment. The Federal Court dismissed the plea of nullity on 4 April 1995, the decision being served on 28 April 1995. In its decision the Federal Court found that the applicant's complaint about the extradition proceedings in Switzerland was inadmissible as he had not complied with the formal requirements for filing the plea of nullity. Insofar as the applicant complained about the extradition from France, the Court found that it was not competent to examine French law. The Court then examined, and eventually confirmed, the sentence imposed by the Court of Appeal. B. Relevant domestic law and practice The Federal Court has on various occasions examined complaints filed in a public law appeal about the undue length of criminal proceedings which had been conducted, and concluded, before the previous cantonal instances. Thus, in its decision of 29 March 1990 the Federal Court examined criminal proceedings having lasted seven years, and in a decision of 16 May 1991 proceedings having lasted six years. In both cases, the Court found that the length did not breach Article 6 para. 1 of the Convention and did not, therefore, call, for instance, for a termination of the proceedings or a mitigation of sentence. In its decision of 24 January 1996 the Court found that criminal proceedings lasting four years did not breach Article 6 para. 1 of the Convention. COMPLAINT Under Article 6 para. 1 of the Convention the applicant complains of the undue length of the proceedings. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 16 October 1995 and registered on 23 November 1995. On 18 January 1996 the Commission decided to communicate the complaint about the length of the proceedings under Article 6 para. 1 of the Convention, and to declare inadmissible the remainder of the application. The Government submitted their observations on 11 March and 19 August 1996 and the applicant his observations in reply on 2 May and 23 September 1996. THE LAW The applicant's remaining complaint is that, contrary to Article 6 para. 1 (Art. 6-1) of the Convention, the proceedings instituted against him were too long. This provision states, insofar as relevant: "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..." The Government submit that the application is inadmissible as the applicant has not complied with the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies. Thus, the applicant failed to challenge the decision of 24 January 1995 of the Court of Cassation of the Canton of Zurich, dismissing his complaint about the undue length of the proceedings, by means of a public law appeal to the Federal Court. Reference is made to the Federal Court's case-law, in particular the decisions of 29 March 1990, 16 May 1991 and 24 January 1996. On the other hand, if such a public law appeal is not considered an effective remedy, the applicant would not have complied with the time-limit stated in Article 26 (Art. 26) of the Convention, as he should then have filed his application within six months after the decision of the Court of Cassation of 24 January 1995. The applicant submits that he raised a public law appeal in 1991 before the Federal Court, though the latter in its decision of 19 November 1991 did not examine the complaint. Moreover, he has complied with the requirements of Article 26 (Art. 26) of the Convention in that he subsequently filed a plea of nullity which was dismissed by the Federal Court on 28 April 1995. He could not be expected again to raise complaints under Article 6 (Art. 6) of the Convention as these had already been dealt with in the decision of 19 November 1991. Under Article 26 (Art. 26) of the Convention, the Commission "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law". The present case concerns criminal proceedings which, by the time they were brought before the Federal Court, had already been dealt with by the courts of the Canton of Zurich, in particular the Court of Appeal and the Court of Cassation. In respect of cases which have already been concluded before the previous instances, the Government have referred to various decisions of the Federal Court, in particular its decisions of 29 March 1990 and 16 May 1991 (see above, Relevant domestic law and practice). These decisions demonstrate that the applicant could still have filed a public law appeal with the Federal Court with a complaint under Article 6 para. 1 (Art. 6-1) of the Convention about the undue length of the proceedings. The applicant submits, however, that he had already filed a public law appeal which the Federal Court dismissed on 19 November 1991, and that there would be no point in bringing another public law appeal. The Commission notes that on 24 January 1995 the Court of Cassation of the Canton of Zurich dismissed the applicant's plea of nullity in which he also complained of the length of the proceedings. Subsequently, the applicant filed a plea of nullity with the Federal Court. However, he failed to file a public law appeal in which he complained under Article 6 para. 1 (Art. 6-1) of the Convention of the undue length of the proceedings. The previous public law appeal dismissed by the Federal Court on 19 November 1991 concerned the length of his detention. Insofar as the applicant complains of the length of the proceedings before the courts of the Canton of Zurich, he has not, therefore, exhausted the remedies available to him under Swiss law. It follows that in this respect the applicant has not complied with the condition as to the exhaustion of domestic remedies, and his application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention. Insofar as the applicant may be understood as complaining of the proceedings before the Federal Court itself, the Commission notes that the applicant's plea of nullity of 5 September 1994 was dismissed by the Federal Court on 4 April 1995, the decision being served on 28 April 1995. This period of seven months and 23 days cannot be regarded as having exceeded the notion of a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. This part of the application is therefore 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 REMAINDER OF THE APPLICATION INADMISSIBLE. M.F. BUQUICCHIO J. LIDDY Secretary President to the First Chamber of the First Chamber