CEDH · CASELAW;REPORTS;ENG — 12 juillet 1990

.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 }  Applications Nos. 12629/87 and 13965/88   S. against   SWITZERLAND   REPORT OF THE COMMISSION   (adopted on 12 July 1990)                                   TABLE OF CONTENTS                                                               Page     I.       INTRODUCTION         (paras. 1-16)   ....................................      1             A.       The application                 (paras. 2-5)   .............................      1           B.       The proceedings                 (paras. 6-11)   ............................      1           C.       The present Report                 (paras. 12-16)   ...........................      2   II.      ESTABLISHMENT OF THE FACTS         (paras. 17-72)   ...................................      3           A.       The particular circumstances of the case                 (paras. 17-69)   ...........................      3                   a.   Institution of criminal proceedings                     (paras. 17-24)   .......................      3                   b.   The applicant's communications with                     his lawyer                     (paras. 25-58)   .......................      4                   c.   Indictment and trial                     (paras. 59-69)   .......................      9           B.       Relevant domestic law and practice                 (paras. 70-72)   ...........................      10   III.     OPINION OF THE COMMISSION         (paras. 73-105)   ..................................      12           A.       Points at issue                 (para. 73)   ...............................      12           B.       Article 6 para. 3 (c) of the Convention                 (paras. 74-95)   ...........................      12                   Conclusion                 (para. 95)   ...............................       16           C.       Article 6 para. 3 (b) of the Convention                 (paras. 96-99)   ...........................       16                   Conclusion                 (para. 99)   ...............................       16           D.       Article 5 para. 4 of the Convention                 (paras. 100-104)   .........................       16                   Conclusion                 (para. 104)   ..............................       17           E.       Recapitulation                 (para. 105)   ..............................       17     DISSENTING OPINION OF MR. H.G. SCHERMERS   .................       18   APPENDIX I:      HISTORY OF THE PROCEEDINGS   ...............       20   APPENDIX II:     DECISION ON THE ADMISSIBILITY   ............       21     I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The applications   2.       The applicant, born in 1962, is a Swiss citizen residing in Zurich.   Before the Commission, he is represented by Mr.   J.P. Garbade, a lawyer practising in Geneva and Zurich.   3.       The applications are directed against Switzerland whose Government were represented by their Agent, Mr.   O. Jacot-Guillarmod, Deputy Director of the Federal Office of Justice.   4.       The applications relate to criminal proceedings instituted against the applicant on suspicion of arson and of having caused explosions.   While he was remanded in custody the applicant's oral communications with his defence counsel were supervised by the authorities during approximately eight months.   5.       The applicant complains under Article 6 paras. 3 (b) and (c) of the Convention that he was not allowed to communicate freely and without supervision with his defense counsel.   He also complains that this supervision rendered illusory his right to take proceedings before a court within the meaning of Article 5 para. 4 of the Convention.   B.       The proceedings   6.       Application No. 12629/87 was introduced on 18 November 1986 and registered on 5 January 1987.   Application No. 13965/88 was introduced on 28 May 1988 and registered on 20 June 1988.   7.       On 12 December 1988 the Commission decided to join the applications, to bring them to the notice of the respondent Government and to invite them pursuant to Rule 42 para. 2 (b) of the Commission's Rules of Procedure to submit observations on the admissibility and merits of the complaints under Articles 5 para. 4, 6 para. 3 (c) and 13 of the Convention.   8.       The respondent Government's observations were submitted on 27 February 1989 and the reply thereto by the applicant on 10 April 1989.   9.       On 9 November 1989 the Commission declared the applications partly admissible.   10.      Further observations were submitted by the applicant on 20 December 1989 and by the Government on 5 January 1990.   11.      After declaring the applications admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which a settlement can be effected.   C.       The present Report   12.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberation and votes, the following members being present:                MM.   J. A. FROWEIN, Acting President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              M.    L. LOUCAIDES   13.      The text of this Report was adopted on 12 July 1990 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   14.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:           i)       to establish the facts, and           ii)      to state an opinion as to whether the facts found                 disclose a breach by the State concerned of its                 obligations under the Convention.   15.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the applications as Appendix II.   16.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case           a.   Institution of criminal proceedings   17.      As from 1980 demonstrations took place in Winterthur which were directed, in part, against an international arms fair and the export of nuclear technology to a South American country.   18.      At the same time explosions, fires and floodings damaged certain public and private buildings in Winterthur.   An explosion occurred in the home of Mr F., the then Federal Councillor (Bundesrat) Head of the Department of Justice and Police, causing damages of approximately 20,000 SFr.   19.      On 20 July 1984 the Winterthur police set up a task force to investigate these offences.   A number of persons living in a commune in Winterthur were kept under surveillance.   Their telephones were tapped and the contents of their refuse bags were analysed.   On 20 November 1984 27 persons were arrested.   One Mr.   A.W. was remanded in custody and eventually sentenced on 15 September 1986 by the Zurich Court of Appeal (Obergericht) to eight years' imprisonment on the grounds of having prepared, with others, the offences of arson and causing an explosion.   While A.W. was remanded in custody, he was represented by Mr.   R., a lawyer practising in Zurich with whom he was able to communicate freely after 15 February 1985.   20.      On 21 November 1984 the applicant was arrested in Geneva on suspicion of having participated in the above offences.   On the same day, the applicant absconded.   21.      He was again arrested on 30 March 1985.   On 1 April 1985 the applicant was heard by the Geneva authorities and he was then charged with the offences of theft and of damage to property.   On 2 and 4 April 1985 the Federal Public Prosecutor (Bundesanwalt) transmitted to the Geneva authorities statements raising charges against the applicant which were served on him on 4 April 1985.   On 10 April 1985 the applicant was confronted with a number of charges, concerning inter alia the explosion at Mr.   F.'s house, by officials of the Federal Public Prosecutor's Office.   He did not make any statement.   22.      On 22 May 1985 the criminal investigations concerning the charges brought by the Federal Prosecutor's Office were transferred to the Zurich authorities, namely the Winterthur District Attorney's Office (Bezirksanwaltschaft), and the applicant was brought, via Berne, to Winterthur Prison.   On 28 May 1985 he was heard by the Winterthur District Attorney and charged with the offences of having caused explosions at the home of Mr F. as well as of arson at a civil protection centre.   He was remanded in custody on the grounds of a danger of his absconding and of collusion.   It was feared, in particular, that he might conspire with other co-accused in order to procure an alibi.   23.      The charges brought against the applicant were extended on 7 June 1985 to the offences of setting fire to two houses at rifle ranges (Schützenhäuser) and of flooding a business house as well as damaging property by spraying graffiti on walls.   24.      On 19 July 1985 the charges brought by the Geneva authorities were also transferred to the Wintherthur District Attorney's Office. Other investigations conducted by the Geneva authorities concerning arson, of which the applicant had so far not been charged, were also transferred to Winterthur.   The applicant was informed of these charges on 6 September 1985.           b.   The applicant's communications with his lawyer   25.      In April 1985 the applicant asked his mother to enquire whether Mr.   R., the lawyer representing A.W., would also represent him.   On 30 April 1985 R. declined as he was overloaded with work, though he recommended to the applicant a former office colleague of his, namely the applicant's present lawyer.   On 1 May 1985 the applicant signed a power of attorney in favour of his present lawyer.   26.      The applicant's oral communications with his present lawyer were supervised from the first visit thereafter on 31 May 1985 until 10 January 1986.   Written communications between the applicant and his lawyer were also supervised.   Thus, three letters of the applicant to his lawyer dated 4, 6 and 21 May 1985 were intercepted and later employed by the authorities to prepare graphological expert opinions.   27.      According to a letter of the Winterthur District Attorney's Office to the Zurich Public Prosecutor's Office (Staatsanwaltschaft) of 12 June 1985 the District Attorney's Office relied in respect of these measures on Section 18 para. 2 of the Zurich Code of Criminal Procedure (Strafprozessordnung) which envisages such supervision in particular if there is a danger of collusion (see below, para. 70). The District Attorney's Office saw such a danger in the fact that the applicant's lawyer could conspire with other lawyers or accused.   In a subsequent request of the District Attorney's Office to the Zurich Public Prosecutor's Office for a prolongation of detention on remand of 9 September 1985 reference was made to the danger that the applicant might conspire with other accused who had meanwhile been released, or that he might influence evidence in his favour.   28.      Only twice did unsupervised visits occur.   On 8 May 1985, while still at Berne prison, the applicant was able freely to confer with his present lawyer for thirty minutes.   Later, at Winterthur prison, the applicant was able once to confer freely with another lawyer, Dr.   H., who visited him upon instructions of the applicant's mother.   29.      On 10 June 1985 the President of the Indictment Chamber (Anklagekammer) of the Zurich Court of Appeal (Obergericht) officially appointed, retroactively as from 4 May 1985, the applicant's defence counsel.   The President also extended the applicant's detention on remand until 12 September 1985.   30.      On 31 May 1985, the applicant conferred with his defence counsel under the supervision of a certain Mr.   S., a police officer dealing with the case (Sachbearbeiter).   Mr.   S. took notes and after one hour stopped the discussion between the applicant and the defence counsel on the grounds that, in his view, they were no longer talking about the proceedings and that he, Mr.   S., still had other business to attend to.   31.      The applicant filed an appeal (Beschwerde) in which he complained that he was not allowed freely to confer with his defence counsel.   32.      On 27 June 1985 the Indictment Chamber at the Zurich Court of Appeal dismissed the appeal.   It found that the applicant was seriously suspected of having committed the various offences and that there was a grave danger of collusion in view of the extremely complex and voluminous investigations being conducted by the authorities.   As the applicant refused to make a statement, he could easily tamper with the evidence, particularly as most of the other co-accused, with the exception of A.W., had been released from detention.   The Indictment Chamber observed that the applicant had maintained close contacts with the other co-accused and that the offences with which they were charged were very dangerous in that they constituted attacks against the order of the State and society in general (Staats- und Gesellschaftsordnung).   33.      Finally, the Indictment Chamber saw a danger of unintentional collusion by counsel, in that the applicant's defence counsel would collaborate with the lawyer representing other co-accused, inter alia with Mr.   R. who was defence counsel for A.W.   With reference to the police officer's remarks on 31 May 1985 (see above para. 30) the Chamber noted that the officer had asked the applicant and his lawyer to come to an end as they were not talking about anything essential to the procedure.   The Chamber found that it was clear that such a person still had other things to do than supervise such conversations.   34.      In a separate appeal (Rekurs) the applicant also complained that he had not been able to consult all the documents of the file and that the proceedings concerning the legality of his detention had been conducted without an oral hearing.   This appeal was dismissed on 18 July 1985 by the Indictment Chamber which also upheld the extension of the applicant's detention on remand until 12 September 1985 in view of the existing danger of collusion and of the applicant absconding.   35.      The applicant's detention on remand was subsequently prolonged on 9 September and 12 December 1985.   36.      Against the decision of the Indictment Chamber of 27 June 1985 the applicant filed a further appeal (Rekurs) which was dismissed on 26 July 1985 by the Civil Chamber (Zivilkammer) at the Zurich Court of Appeal.   37.      The Civil Chamber found that, as the applicant refused to make a statement, he was in a position to conspire with other persons involved in the proceedings in order to coordinate (abstimmen) his eventual depositions.   It was to be assumed that the applicant would pursue such a conspiracy with all possible means.   Insofar as Dr.   H. had been able freely to confer with the applicant, the Civil Chamber did not regard as credible the submissions of the present lawyer according to which his contacts with the lawyers representing the other co-accused were not more intensive than those which Dr H. had with these lawyers.   The Civil Chamber noted that Mr.   R., who was the defence counsel for A.W., had in fact told the District Attorney's Office that the various lawyers would coordinate their position.   38.      The decision of the Civil Chamber of 26 July 1985 continues:   <German>   "Dieses Vorgehen ist zwar nicht unzulässig, doch muss es mit dem Gebot der materiellen Wahrheitsfindung vereinbar sein. Da die von Rechtsanwalt Garbade und Rechtsanwalt R. verteidigten Angeschuldigten von ihrem Recht Gebrauch machen, die Aussage strikte zu verweigern, ist die Gefahr nicht von der Hand zu weisen, daß die Verteidiger nicht nur ihr taktisches und rechtliches Vorgehen absprechen, sondern allenfalls auch die materielle Wahrheitsfindung gewollt oder ungewollt beeinträchtigen.   Unter diesen Umständen sind gerade bei Delikten der vorliegenden Art, die als Angriffe auf die Staats- und Gesellschaftsordnung aufzufassen sind, genügend Anhaltspunkte gegeben, die auf eine Kollusions- gefahr in der Person des Verteidigers hinweisen."   <Translation>   "Such a manner of proceeding may not be inadmissible, but it must conform with the duty to find the substantive truth. As the co-accused, represented by the lawyers Garbade and R., have availed themselves of their right to remain silent, the danger cannot be excluded that the defence counsels not only coordinate their manner of proceeding in a tactical and juridical way, but possibly also, intentionally or not, impair the finding of the substantive truth.   In such circumstances, there are sufficient indications which point to a danger of collusion in the person of the defence counsel, particularly in respect of offences, such as the present ones, which must be considered as attacks against the order of the State and society."   39.      The applicant then filed two public law appeals (staats- rechtliche Beschwerden) against the decisions of the Indictment Chamber of the Zurich Court of Appeal of 27 June and 18 July 1985, and of its Civil Chamber of 26 July 1985.   40.      In his public law appeal of 19 August 1985 against the decision of 18 July 1985 he complained under Article 6 para. 3 (b) of the Convention in connexion with Article 5 para. 4 of the Convention and with reference to a previous decision of the Federal Court (Bundesgericht)that the supervision of the communications with his lawyer rendered illusory the right to a procedure under Article 5 para. 4.   He claimed that his right to a fair hearing in the context of this provision was invalidated in respect of the appeal proceedings concerning the prolongation of his detention on remand.   In particular, he alleged that the supervision made it impossible confidentially to talk with his lawyer as to the means by which the evidence adduced by the investigating authorities could be challenged. The applicant also complained that he had not been granted, independently of his lawyer, the right personally to consult his case-file;   his lawyer had also not been able to make photocopies thereof.   41.      In his second public law appeal of 27 August 1985 against the decisions of 27 June and 26 July 1985 the applicant reiterated the complaints made under Article 5 para. 4 in his previous public law appeal.   He further complained that, due to the supervision of the communications, everything he said to his lawyer was heard by the prosecuting authorities, except if he renounced any contact with his lawyer.   42.      These public law appeals were rejected in two decisions of the Federal Court of 15 October and 4 December 1985.   On the first page of both decisions the Court referred to Articles 5 para. 4 and 6 para. 3 (b) of the Convention.   43.      In its decision of 15 October 1985 the Federal Court considered the procedure in which the legality of the applicant's detention on remand was examined.   The Court found that at the latest when preparing the trial the defence counsel was entitled to obtain copies of the case-file for the applicant.   The Court also saw no obligation to conduct an oral hearing in proceedings concerning the prolongation of the applicant's detention on remand.   Finally, the Court considered that the length of the applicant's detention on remand had not yet exceeded the permissible maximum.   44.      On 4 December 1985, the Federal Court dismissed the applicant's complaints concerning the supervision of his communications with his defence counsel.   This decision was served on the applicant's lawyer on 28 May 1986.   45.      The Court considered that it could only examine the decision of the Civil Chamber of 26 July 1985 and that it was unaware of the applicant's situation thereafter.   The Court dismissed at the outset the applicant's complaints under Article 6 para. 3 (b) of the Convention since he had not claimed that the supervision of the contacts with his defence counsel had impaired the preparation of the trial.   Rather, the applicant's complaints fell to be considered under Article 4 of the Swiss Federal Constitution and Article 6 para. 3 (c) of the Convention, as interpreted by the Commission's case-law.   46.      In the Federal Court's opinion, it was not arbitrary if the Zurich authorities viewed the alleged offences as systematic attacks against the order of the State and society, particularly if one bore in mind the selection of the objects attacked.   Thus, the accused persons appeared extraordinarily dangerous and it could well be assumed that they would resort to illegal means even during the trial proceedings.   As a result, regardless of the individual lawyer concerned, the supervision of the applicant's contacts with his defence counsel conformed with the Constitution and the Convention.   47.      The Federal Court considered further that if irregularities occurred on the part of a defence counsel, it was in the first place up to the disciplinary authorities to impose the necessary sanctions. Nevertheless, even a defence counsel could, intentionally or not, become an accomplice of the accused.   It could reasonably be said (mit haltbaren Gründen) that such a situation could arise all the more in respect of the applicant's defence counsel as he stood in close contact with Mr.   R. who represented A.W. while the latter had been able freely to confer with his defence counsel.   This did not in the Court's opinion imply a discrimination against the applicant in as much as A.W. had been detained much longer and was charged with other offences.   48.      Meanwhile, the contacts between the applicant and his defence counsel continued to be supervised.   Thus, notes for the file on contacts between the applicant and his lawyer were prepared by the supervising police officer on 23 August, 11 October and 18 December 1985.   According to the note of 23 August 1985 the applicant's lawyer had to show the police officer documents which he was discussing and exchanging with the applicant.   49.      In a letter to the Public Prosecutor's Office of 15 October 1985 the Winterthur District Attorney's Office explained that the supervision served the purpose of preventing collusion between the applicant and his lawyer.   The letter states that "the conversation listened to can in any event probably not be used as evidence against the accused" ("Als Beweismittel gegen den Angeschuldigten kann das mitgehörte Gespräch wohl so oder so nicht verwendet werden").   50.      According to a note prepared for the file by a Winterthur District Attorney on 21 October 1985, he told the applicant's lawyer on that day that the supervision of communications would be stopped when he, the District Attorney, had heard without interference by third parties the applicant's views in respect of all charges brought against him.   When the lawyer told the District Attorney that the applicant would probably refuse to speak until he had unsupervised contacts with the lawyer, the District Attorney replied that this was the applicant's right.   Subsequently, by letter of 2 April 1986 to the applicant's lawyer, the District Attorney recalled that the applicant's lawyer had told him that the applicant would not comment on the investigations; he, the District Attorney, therefore assumed that the applicant had renounced his right to be heard on the reports and minutes of the interrogations of witnesses.   51.      On 20 December 1985 the applicant again filed an appeal (Beschwerde) in which he complained about the supervision and that his defence counsel was not able to consult the case-file.   The Indictment Chamber dealt with these complaints in two decisions.   52.      In its first decision of 8 January 1986 the Indictment Chamber reserved for a later decision the issue of the supervision of the applicant's contacts with his defence counsel in view of the fact that the Public Prosecutor's Office envisaged unsupervised contacts after 9 or 10 January 1986.   The Chamber further found that the applicant was suspected of having committed the offences at issue, and if the investigations lasted a long time this was also due to the applicant's refusal to make any statement.   53.      According to the subsequent decisions of the Federal Court of 30 November 1987, the applicant was permitted freely to communicate with his lawyer as from 10 January 1986.   54.      On 10 July 1986 the Indictment Chamber gave its second decision which complemented (Nachtragsbeschluss) the decision of 8 January 1986.   The Chamber found that the applicant now lacked legal interest in his appeal as his contacts with his defence counsel were no longer supervised.   55.      The Indictment Chamber then examined whether or not the applicant had to bear the costs of the proceedings and whether he was entitled to compensation.   In order to resolve this issue the Chamber had to examine whether the applicant's appeal of 20 December 1985 would have been successful if the supervision of the contacts with his defence counsel had continued.   The Chamber concluded that the circumstances referred to in the decision of the Federal Court of 4 December 1985 had not changed until 20 December 1985.   As a result the supervision had been necessary and the applicant's appeal would probably have been dismissed.   In view of the procedure chosen by the Indictment Chamber, resulting in two different decisions, the applicant was nevertheless exempted from costs and expenses, though no compensation was granted.   56.      The applicant's further appeal (Rekurs) was dismissed by the Civil Chamber at the Zurich Court of Appeal on 19 January 1987, which also considered that the applicant's appeal of 20 December 1985 would probably have been dismissed.   57.      On 27 February 1987, the applicant filed a public law appeal against the decision of 19 January 1987.   This appeal was dismissed by the Federal Court on 30 November 1987.   The decision was served on the applicant's lawyer on 7 December 1987.   The Federal Court found it could only examine whether the Zurich authorities had arbitrarily refused to grant compensation to the applicant on the ground that his appeal of 20 December 1985 would probably have been dismissed.   58.      In the Court's view there continued to exist a danger of collusion in respect of the applicant.   The investigations were prolonged inter alia by the extraordinary number of offences with which the applicant was charged, and it could be assumed, without arbitrariness, that the relevant circumstances had not changed between July and December 1985.           c.    Indictment and trial   59.      On 26 March 1986 the Document Laboratory (Urkundenlabor) of the Police of the Canton of Zurich (Kantonspolizei) prepared an expert opinion for the Winterthur District Attorney's Office.   Therein it considered that some of the anonymous letters following the offences concerned (Bekennerbriefe) certainly stemmed from the applicant.   60.      On 28 July 1986 the final interrogation of the applicant took place.   According to the minutes of the interrogation, counting 125 pages, the applicant remained silent while being confronted with the charges brought against him.   The applicant's lawyer stated at the end inter alia that the accusations were based merely on the assumption that the applicant had anarchical views.   61.      On 21 August 1986 the Winterthur District Attorney's Office submitted its final report of 235 pages on the investigations. Therein, it charged the applicant with having participated on three occasions in the offence of causing an explosion and of having committed nineteen instances of arson, or attempted to do so. The applicant was also charged with various instances of theft and with damaging property and a railway line.   The damages amounted to a total of approximately 7,670,000 SFr.   The file was then transmitted to the Zurich Public Prosecutor's Office (Staatsanwaltschaft).   62.      On 12 September, 6 October and 22 December 1986 the applicant unsuccessfully requested the Public Prosecutor's Office to take further evidence.   63.      On 29 January 1987 the Zurich Public Prosecutor's Office indicted the applicant with the various offences mentioned.   In his reply of 1 April 1987 the applicant requested the taking of further evidence.   64.      The applicant subsequently did not make use of his right to choose that his trial should be conducted by the Jury Court (Geschworenengericht) rather than the Zurich Court of Appeal acting as Cantonal Court.   On 12 June 1987 the applicant was committed to trial before the Zurich Court of Appeal.   65.      The trial was fixed for 14 January 1988.   On that day, the applicant was not present and the Court adjourned the trial.   On 2 February and 15 September 1988 the Court ordered the preparation of three graphological expert opinions.   66.      On 15 September 1988 the applicant was released from detention on remand.   67.      A further expert opinion was prepared by 17 August 1989 and served on the applicant on 23 August 1989.   The applicant was again asked whether he wished to be tried by the Zurich Jury Court.   68.      On 11 December 1989 a new hearing was conducted before the Zurich Court of Appeal at which the applicant was absent, without giving reasons therefor.   After the applicant's lawyer had commented on the applicant's absence, and the Public Prosecutor's Office had replied thereto, the Court of Appeal gave its judgment in the applicant's absence.   The Court convicted the applicant, inter alia, of the preparation of explosives, of arson, theft and damage to property.   The applicant was sentenced to seven years' imprisonment from which the period spent in detention on remand, amounting to 1,291 days, was deducted.   The applicant was also ordered to pay the court costs of 10,000 SFr.   69.      After having been served the judgment of the Court of Appeal, the applicant objected thereto.   Thereupon, a new trial was held on 9 February 1990.   The applicant was not present.   After hearing the applicant's lawyer and a member of the Zurich Public Prosecutor's Office, the Court confirmed its judgment of 11 December 1989.   B.       Relevant domestic law and practice   70.      The domestic authorities relied, for the supervision of the applicant's communications with his defence counsel, on paras. 1 and 2 of Section 18 of the Zurich Code of Criminal Procedure of 4 May 1919. These provisions state:   <German>   "1.   Dem verhafteten Angeschuldigten ist schriftlicher und mündlicher Verkehr mit dem Verteidiger gestattet, soweit der Untersuchungszweck nicht gefährdet wird.   2.   Sobald der Verhaft über vierzehn Tage gedauert hat, soll dem Angeschuldigten die Erlaubnis, sich mit dem Verteidiger frei und unbeaufsichtigt zu beraten, ohne besondere Gründe, insbesondere Kollusionsgefahr, nicht verweigert werden.   Nach Abschluss der Untersuchung steht Angeschuldigten dieses Recht unbeschränkt zu.   ..."   <Translation>   "1.   The accused who has been arrested must be granted written and oral contact with a defence counsel insofar as this does not impair the purpose of investigation.   2.   As soon as the detention on remand exceeds fourteen days, the accused should no longer be refused, without special reasons, in particular the danger of collusion, the permission to consult freely and without supervision with his defence counsel.   Once the investigations have been closed the applicant has this right without limitation.   ..."   71.      According to the case-law of the Federal Court, it follows from Article 4 of the Swiss Constitution, which guarantees equality of all persons, that the detained person has in principle the right to communicate freely and without supervision with his defence counsel (see ATF [Arrêts du Tribunal Fédéral] 105 Ia 380, 106 Ia 224). Exceptions must have a statutory basis, lie in the public interest and be proportionate.   Nevertheless, the accused must not be prevented from preparing the trial together with his defence counsel (ATF ibid.).   According to the Federal Court's case-law, even during the investigation unsupervised contacts cannot be prohibited throughout. In particular, it would be unlawful to allow unsupervised contacts only after the investigations were closed (ATF 105 Ia 101).   Otherwise the rights under Article 5 para. 4 of the Convention would become illusory.   72.      According to Sections 25 et seq. of the Zurich Code of Criminal Procedure the investigation of an offence is as a rule conducted by the District Attorneys who in turn may be assisted by the police.   Section 30 para. 1 states that the purpose of the investigation is to determine the facts in order either to bring an indictment or to terminate the proceedings.   According to para. 2 of Section 30, the evidence must only be compiled to the extent considered necessary to conduct a trial.   According to Section 162 para. 1 (2) the bill of indictment must determine inter alia "the offences with which the applicant is charged with reference to all circumstances relevant for the establishment of the offence and as far as possible the exact reference to place and date and other individual circumstances" ("die ihm zur Last gelegten Handlungen oder Unterlassungen unter Angabe aller Umstände, welche zum gesetzlichen Tatbestand gehören sowie unter möglichst genauer Angabe von Ort und Zeit und anderen Einzelheiten").   III.    OPINION OF THE COMMISSION   A.       Points at issue   73.      The points at issue are        a) whether there has been a violation of Article 6 para. 3 (c)         (Art. 6-3-c) of the Convention in that the applicant was         refused oral communications with his defence counsel without         supervision by the authorities;        b) whether the said supervision also constituted a violation of         Article 6 para. 3 (b) (Art. 6-3-b) of the Convention;        c) whether the said supervision also constituted a violation         of Article 5 para. 4 (Art. 5-4) of the Convention.   B.       Article 6 para. 3 (c) (Art. 6-3)c) of the Convention   74.      The applicant complains that he was not allowed to communicate freely, and without supervision, with his defence counsel from the latter's first visit on 8 May 1985 onwards until 10 January 1986.   The applicant relies on Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention which provide, insofar as relevant:           "3.   Everyone charged with a criminal offence has the         following minimum rights:         ...         b. to have adequate time and facilities for the preparation         of his defence;         c. to defend himself in person or through legal assistance of         his own choosing..."   75.      The applicant submits that, while the authorities justified the supervision of communications on the ground of a danger of collusion, they never indicated how his lawyer could conspire with other persons, in particular, with other lawyers who were defending co-accused in these proceedings.    In fact, during the period at issue, the authorities undertook no investigations which were susceptible to influence by a concerted action between the applicant and his lawyer.   The applicant considers that he does not have to show that the supervision caused prejudice; in any event, prejudice occurred.   Thus the supervision hindered the preparation of his defence, it prolonged the proceedings, and the notes of the supervising officers were joined to the file as evidence.   76.      The respondent Government submit that the complaints under Article 6 para. 3 (c) (Art. 6-3-c) are unfounded.   With reference to the Commission's Report in the Can case (Can v. Austria, Comm. Report 12.7.84, Eur. Court H.R., Series A No. 96, p. 15 et seq. paras. 49 et seq.), the Government contend that the Convention does not expressly guarantee an accused person's right to communicate freely with his defence counsel.   Moreover, the entirety of the proceedings must be considered.   The supervision of the applicant's communications with his lawyer, from 31 May 1985 until 10 January 1986, was effected in order to avoid collusion.   At the end of that period, the taking of evidence was not yet definitely concluded.   For a period of two years thereafter, until the trial was held, the applicant's lawyer could freely communicate with the applicant and had full access to the file.   77.      The Government emphasise that the applicant had the choice of having his trial conducted before the Zurich Jury Court, where the proceedings would have been governed by the principle of the direct taking of evidence, and the Zurich Court of Appeal, where the facts would have been established mainly on the basis of the preliminary investigation.   For unknown reasons the applicant opted for the latter.   He is thus not in a position to complain that he did not benefit from an equitable administration of evidence.   The Government also refer to the case-law of the Federal Court according to which communications with counsel may be supervised in exceptional cases, if they are provided for by law, respond to a public interest, and are proportionate.   These conditions were met in the present case, and the applicant has failed to prove the contrary.   78.      The Government also submit that the applicant has not shown that he suffered any prejudice when the communications with his defence counsel were supervised.   Here, the Government consider that, contrary to the Commission's opinion in the Can case (ibid., para. 55), the functions of the lawyer worthy of protection under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention concern only the preparation and conduct of the trial and not, for instance, requests of the accused to be released from detention on remand.   79.      The Commission observes that the applicant's complaints both under Article 6 para. 3 (b) and para. 3 (c) (Art. 6-3-b, 6-3-c) concern essentially the supervision by the Zurich authorities of his communications with his defence counsel.   80.      The Commission recalls that the Convention does not expressly guarantee the right of an accused to communicate freely with his defence counsel, for the preparation of his defence or otherwise. Nevertheless, as the Commision found in the Can case, the fact that this right is not specifically mentioned in the Convention does not mean that it may not be implicitly inferred from its provisions, and in particular those of Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c). The possibility for an accused to communicate with his lawyer is a fundamental part in particular of his right to "have adequate time and facilities for the preparation of his defence" within the meaning of Article 6 para. 3 (b) (Art. 6-3-b, 6-3-c).   However, in the absence of an express provision it cannot be excluded that the right to have conversations with one's defence counsel, and exchange confidential instructions or information with him, as implicitly guaranteed by Article 6 para. 3 (Art. 6-3) of the Convention, is susceptible of restrictions (see Can v. Austria, ibid., pp. 16 et seq., paras. 51 et seq.).   81.      Article 6 para. 3 (c) (Art. 6-3-c) is not exclusively tied to considerations relating to the preparation of the trial, but gives the accused a more general right to assistance and support by a lawyer throughout the proceedings.   The Commission also refers in this context to the Artico case where the Court stated:           "the Convention is intended to guarantee not rights that are         theoretical or illusory but rights that are practical and   &#xa0