CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 7 July 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         G. JÖRUNDSSON                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         J. CAMPINOS                         H. VANDENBERGHE                     Mrs G.H. THUNE                     Sir Basil HALL                       Mr. H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 Application No. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 27 July 1983 by H. E. against Switzerland and registered on 8 November 1984 under file No. 11237/84;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case as they have been submitted by the applicant may be summarised as follows:   The applicant, a German citizen born in 1941, resides in Stühlingen/Federal Republic of Germany.   She is president of the German branch of the Divine Light Zentrum (DLZ), a philosophical institution in Winterthur/Switzerland.   The head of DLZ is Mr. S.O. Two previous applications of S.O., Nos. 8118/78 and 8880/80, which were declared inadmissible by the Commission on 19 March 1981 and 15 March 1984, respectively, do not directly concern the present application.   In 1975 an explosion occurred at the house of the Zurich Cantonal Director of Police, whereupon criminal proceedings were instituted against various DLZ members.   Following a search of the DLZ in 1976, the applicant was arrested, together with S.O. and other members, and remanded in custody under suspicion of having jointly incited several persons to commit murder.   While the investigations were terminated in respect of various offences, the applicant was eventually indicted before the Winterthur District Court (Bezirksgericht) of having resided in Switzerland without the permission of the Aliens' Police, and of having taped, without authorisation, a personal conversation with the Secretary of the Zurich Direction of Justice.   On 25 January 1982, she challenged the District Court, namely its president, Dr. W., on the ground that he entertained biased views against the DLZ. A hearing was then fixed for 2 February 1982, at which the applicant was absent.   The court rejected the challenge on 2 February 1982 and conditionally sentenced the applicant in her absence in accordance with the indictment to 60 days' imprisonment.   In respect of her unsuccessful challenge the applicant appealed to the Administrative Commission of the Zurich Court of Appeal, which on 21 May 1982 rejected the appeal.   On 18 October 1982 the applicant's public law appeal was declared inadmissible by the Federal Court as being out of time.   Her subsequent request for reopening the proceedings was rejected by the Federal Court on 2 February 1983.   Meanwhile, on 5 February 1982 the applicant requested the District Court to carry out regular criminal proceedings.   A hearing was then held on 8 July 1982 at which the applicant was present.   On the same day the applicant was conditionally sentenced on the same grounds as on 2 February 1982 to 60 days' imprisonment.   The District Court which was presided over by Dr. W., referred in respect of the applicant's illegal residence in Switzerland to three concurring statements of Mesdames P., B. and Sch. which the court found credible and convincing, and upon which already another court had relied in parallel proceedings.   The court noted that these witnesses had at the time of the residence in question still had a favourable opinion towards the DLZ.   P. had even after her renunciation of the DLZ maintained her statements.   If in separate criminal proceedings P. had been found to be of reduced responsibility under criminal law, this related to P.'s blind devotion towards S.O. and did not render her present statements incredible.   On 26 November 1982 the applicant's appeal against this decision was dismissed by the Zurich Court of Appeal insofar as it concerned the conviction, though the conditional sentence was reduced to one month's imprisonment.   In particular, the Court of Appeal saw no reason to doubt P.'s ability to give evidence and regarded further medical opinions in this respect as unnecessary.   Mesdames P., B. and Sch. had all confirmed the applicant's residence in Switzerland.   P. had first been interrogated alone on doctor's orders on account of pregnancy complications.   Later the applicant had been given the opportunity to question P. but had not done so.   At a subsequent hearing before the Court of Appeal, P. and Sch. had again been heard.   The former had confirmed her previous statement while the latter had not denied it.   B. was in Australia and could not be reached.   The court concluded on the basis of these statements as well as of investigations at the Winterthur Office of Aliens' Control that the applicant had indeed resided without permission in Switzerland during approximately two years.   a)       Against this decision the applicant filed a plea of nullity with the Court of Cassation of the Federal Court.   The latter, on 13 July 1983, rejected as being unfounded her complaints concerning the sentence, and as being inadmissible the remainder of her complaints as they did not allege "a violation of Swiss Federal Law" within the meaning of Article 269 of the Swiss Federal Code of Criminal Procedure.   On 3 August 1983 the same Court dismissed the applicant's request for reopening the proceedings.   b)       Against the decision of 26 November 1982 the applicant also filed a public law appeal which the Federal Court dismissed on 25 April 1984.   The court upheld the applicant's complaints insofar as they were directed against the imposition of court costs.   The court saw a breach of Article 6 para. 2 (Art. 6-2) of the Convention in the fact that the previous instances had regarded the costs as justified on the grounds that the applicant had evaded conviction in respect of certain offences only on account of their prescription.   On the other hand, the Federal Court declared inadmissible the applicant's complaints in respect of an alleged violation of Federal Law.   It also declared inadmissible the complaint concerning the alleged partiality of Dr. W. on the ground that the applicant had not properly exhausted the remedies available to her, and that in any event the court had already decided upon this issue   on 18 October 1982.   The remainder of the applicant's complaints were dismissed as being unfounded.   Thus, the Federal Court which also considered a medical opinion, regarded the witness P. as being quite capable of commenting upon the applicant's residence in Switzerland.   The previous instance had also rightly assumed the statement of B. and Sch. as being correct.   Moreover, it would not have altered the conviction if the previous instance had indeed made inquiries about the reasons why the applicant was in Winterthur during the respective police raids. The court saw no discrimination insofar as proceedings against other foreigners in the same case were discontinued.   Finally, the District Attorney had in the indictment correctly mentioned the period of her unlawful stay in Switzerland.   COMPLAINTS   1.       The applicant now complains generally under Article 6 para. 1 (Art. 6-1) of the Convention   of the various court decisions and of her conviction as well as of the incorrect application of Swiss law and the incorrect assessment of the facts.   a)       Thus, the applicant complains that the Federal Court on 18 October 1982 and 25 April 1984 declared inadmissible her public law appeals and on 2 February and 3 August 1983 refused to reopen the proceedings.   b)       The applicant further complains of the alleged partiality of the District Court judge Dr. W.   c)       The applicant finally complains of the alleged unfairness of the proceedings, namely in respect of the testimony of Mrs. P.   Thus the latter had been heard although in separate proceedings she had been regarded as being partly irresponsible under criminal law. Moreover, P. was clearly biased against the DLZ and the applicant. She had not testified freely inasmuch as she had done so as a prisoner on remand when her own sentence had not yet been determined.   The Court of Appeal had not been able to refute any of the evidence adduced by the applicant and therefore also decided arbitrarily.   On 3 August 1983 the Federal Court had arbitrarily dismissed her plea of nullity.   2.       Under Article 3 (Art. 3) the applicant complains, without closer specification, that in the proceedings at issue statements were made under the application of torture.   Under Article 6 para. 2 (Art. 6-2) she complains that the court relied on illegally obtained evidence.   THE LAW   1.       The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the unfair and incorrect decisions of the Federal Court, in particular insofar as the latter, on 18 October 1982 and 25 April 1984, declared inadmissible her public law appeals, and, on 2 February and 3 August 1983, refused to reopen the proceedings.   Insofar as the applicant complains of the proceedings and decisions of the Federal Court in respect of the applicant's public law appeal, the Commission recalls its constant case-law that Article 6 para. 1 (Art. 6-1) is not applicable to proceedings before a Constitutional Court, as such a court is not called upon to determine any private right on the basis of the existing substantive law, be it of a civil or a public law character (see No. 8410/78, Dec. 13.12.79, D.R. 18 p. 216).   Insofar as the applicant complains that the Federal Court refused to reopen the proceedings the Commission observes that no right to the reopening of criminal proceedings is as such included among the rights and freedoms guaranteed by the Convention. Furthermore, in accordance with the Commission's constant jurisprudence, proceedings concerning requests for the reopening of criminal proceedings fall outside the scope of Article 6 (Art. 6) of the Convention (see No. 4429/70, Dec. 1.2.71. Collection 37 p. 111).   It follows that the application is in this respect incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.       The applicant has complained under Article 6 para.1 (Art. 6-1) of the alleged partiality of the District Court judge Dr. W.   However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26), it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   As regards the complaint at issue the Commission notes that on 18 October 1982 the Federal Court declared the applicant's first public law appeal inadmissible as being out of time, and on 25 April 1983 the respective part of her second public law appeal inadmissible as the applicant had not properly exhausted the remedies available to her.   The Commission recalls its constant jurisprudence according to which there is no exhaustion of domestic remedies where a domestic appeal is not admitted because of a procedural mistake (see No. 6878/75, Dec. 6.10.76,   D.R. 6 p.79).   In the instant case the applicant has therefore not exhausted the remedies available to her under Swiss law. Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at her disposal.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The applicant also complains under Article 6 para. 1 (Art. 6-1)of the Convention of the incorrect decisions of the Winterthur District Court and the Zurich Court of Appeal as well as of the incorrect application of Swiss law and the incorrect assessment of the facts.   She furthermore complains of the alleged unfairness of the proceedings, namely in respect of the testimony of Mrs. P.   Thus the latter had been regarded as being partly responsible under criminal law. Moreover, according to the applicant, P. was biased against the DLZ and the applicant and had not been able to testify freely.   The Court of Appeal had not been able to refute any of the evidence adduced by the applicant, and the Federal Court had on 3 August 1983 arbitrarily dismissed her plea of nullity.   As regards these complaints the Commission notes that the applicant's public law appeal was dismissed as being unfounded by the Federal Court on 25 April 1984 and that no further appeal was possible against the decision of 3 August 1983.   The Commission is therefore satisfied that the applicant has exhausted domestic remedies in this respect within the meaning of Article 26 (Art. 26) of the Convention.   Nevertheless, the Commission recalls that, in accordance with 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 (see No. 6172/73, Dec 7.7.75, D.R. 3 p.77).   It is true that the applicant has also complained under Article 6 para. 1 (Art. 6-1) of the alleged unfairness of the proceedings. However, the Commission finds no evidence to indicate that the applicant could not present her case properly, or that the proceedings were improperly conducted by the Swiss courts.   Thus, the latter regarded the available evidence concerning the applicant as being sufficient and credible in view of the fact that it had been given by three persons during the District Court proceedings all of whom had made statements coinciding with each other.   The Federal Court also considered a medical opinion in respect of one witness, Mrs. P., whom the applicant was able personally to question and who was later again heard together with Mrs. Sch. before the Court of Appeal.   In the light of these considerations the Commission finds that the complaints at issue do not disclose any appearance of a violation of the rights set out in Article 6 para. 1 (Art. 6-1).   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant complains under Article 3 (Art. 3), without closer specification, that in the proceedings at issue statements were made under the application of torture.   Under Article 6 para. 2 (Art. 6-2) she complains that the court relied on illegally obtained evidence.   However, the Commission finds no issue under these provisions. It follows that this aspect of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                President of the Commission       (H. C. KRÜGER)                             (C. A. NØRGAARD)