CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 octobre 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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 14379/88                       by W.                       against Switzerland             The European Commission of Human Rights sitting in private on 9 October 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   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              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 20 September 1988 by W. against Switzerland and registered on 10 November 1988 under file No. 14379/88;           Having regard to   -        the report provided for in Rule 47 of the Rules of Procedure         of the Commission;   -        the observations submitted by the respondent Government on         13 October 1989 and the observations in reply submitted by         the applicant on 13 December 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant, a Swiss national born in 1945, is a businessman residing at G. in Switzerland.   When filing the application he was remanded in custody at Burgdorf prison in Switzerland.   Before the Commission the applicant is represented by Mr. P. Saluz, a lawyer practising in Bern.                                   I.           As from October 1982 onwards the Criminal Police of the Canton of Bern received complaints about the business activities of the applicant and other persons; various criminal reports (Anzeigen) were filed.   During this time a number of companies in which the applicant and other persons were involved went bankrupt.           In October 1984 a confidential report counting over 100 pages and containing a request for criminal investigations (Ermittlungsgesuch) was issued to various Interpol agencies in the Federal Republic of Germany, the United States of America, the United Kingdom, Monaco and various countries in the Caribbean.           On 8 February 1985 preliminary investigations were instituted against the applicant and other persons.           On 27 March 1985 the applicant was arrested and remanded in custody on suspicion of having committed various economic offences and on the grounds of a danger of absconding, of collusion and of repetition.   The charges related to approximately 60 companies controlled by the applicant.           Charges were also brought against altogether 12 other persons of whom six were eventually arrested and remanded in custody.           As from mid-1985, two special investigating judges (Unter- suchungsrichter) were appointed exclusively to conduct the investigations concerning events dating back to 1977.   The investigating judges were assisted by two specialists of the Bern Cantonal Police and two to three secretaries.   The investigations were placed under the supervision of the Public Prosecutor and the Indictment Chamber (Anklagekammer) at the Court of Appeal (Obergericht) of the Canton of Bern.           Between March 1985 and June 1986 the residencies of the applicant and other persons and firms were searched in altogether 18 instances.   Large amounts of documents were seized.   According to the subsequent report of the special investigating judges of 3 October 1988, the documents, which were found inter alia in a cellar and in a bath, were in a complete mess (heilloses Durcheinander).   During this period the telephone and telex communications of the suspects were monitored.           On 3 April 1985 the investigating authorities seized various bank accounts in altogether 17 banks.   Letters rogatory were issued in respect of further banks.   Eventually, the authorities established a list of approximately 200 bank accounts concerning the criminal proceedings instituted against the applicant and other persons.   In 1985, monies and valuables possessed by the applicant and other persons were confiscated on the basis of orders of, or following searches on, 27 and 28 March, 3 April, 4 May, 2, 3 and 27 June, 5 September, 3 October and 25 November.           The investigating authorities entered the information collected during the preliminary investigations by means of a computer in a day-by-day journal (tagebuchartiger Abriss), eventually counting 891 pages.           The main case-file (Hauptdossier) eventually consisted of 711 files; a further file (Nebendossier) was also established.   The row of documents extended over 120 metres.   Towards the end of 1986 a new systematic order of the file was introduced.   At one stage, when establishing a systematic order, over 10,000 photocopies were prepared per month.   According to the Report of the special investigating judges of 3 October 1988, the investigating authorities viewed every single page of the case-file.           At the early stages of the proceedings difficulties arose with regard to the various accused persons' right to consult the case-file.   At one stage, the investigating authorities considered that consultation of the case-file would have to be refused for some years.   Altogether 14 complaints and appeals were filed against various decisions of the investigating authorities.   After April 1986 the accused were permitted to consult approximately 90% of the case-file, after 22 October 1986 virtually the entire case-file.           On approximately 350 occasions the investigating authorities questioned the applicant, the other accused and various other persons.   However, as from 11 April 1986 onwards the applicant no longer replied to questions put to him by the investigating authorities.   The latter nevertheless interrogated the applicant on altogether 36 occasions, namely in 1986: on 11 and 15 April; 7 May; 4 June; 17 July; 19, 26, 27 and 29 August; 1, 5, 10 and 22 September; and 24 November; in 1987: on 11, 16, 25 and 26 February; 4 and 6 March; 11 and 25 June; 7, 8, 9, 10, 13, 14, 20, 21, 22, 23, 24, 27 and 28 July; in 1988: on 12 July.           The minutes of the applicant's interrogations, amounting to approximately 700 pages, consisted of the statements of the investigating authorities, as well as the statement that the applicant refused to reply thereto.           Between 29 March 1985 and 18 May 1988 the various persons remanded in custody filed altogether 25 requests for release from detention.   The applicant filed altogether eight requests.           The applicant filed his first request to be released from detention on remand on 24 May 1985.   The request was dismissed on 1 July 1985 by the Indictment Chamber.           On 8 July 1985 the applicant filed certain complaints about his official representation by a lawyer (amtliche Verteidigung). These complaints were dismissed by the Indictment Chamber on 22 July 1985.           On 2 August 1985 the applicant complained that one of his lawyers was not granted a permanent right to visit him, the applicant (Dauerbesuchsbewilligung).   The Indictment Chamber dismissed this complaint on 28 August 1985.           On 26 August 1985 the applicant filed a second request to be released from detention on remand.   This request was dismissed by the Indictment Chamber on 13 September 1985.   Against this decision the applicant filed a public law appeal (staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht) dismissed on 7 November 1985.           The Federal Court considered that the requirements to impose detention on remand under Section 111 of the Bern Code of Criminal Procedure (Gesetz über das Strafverfahren) were met in that the applicant was under a compelling suspicion of having committed the offence and in that there was a danger of collusion and of absconding, in particular as since 1978 the applicant had been living in Monte Carlo, Germany, the United States of America and Anguilla.   Section 111 lays down the requirements for detention on remand, in particular the compelling suspicion of having committed an offence, the danger of absconding, of collusion or of repetition.           The Federal Court also regarded as proportionate the length of the applicant's detention on remand so far.   The decision continued:   [German]   "Indessen werden die Behörden des Kantons Bern alles daran setzen müssen, das Verfahren beschleunigt zu fördern und insbesondere diejenigen Personen zu vernehmen (und allenfalls mit dem Beschwerdeführer zu konfrontieren), mit denen Kollusionsgefahr bestehen könnte.   Die Kompliziertheit des Sachverhalts allein vermöchte eine jahrelange Untersuchungshaft kaum zu rechtfertigen."   [English translation]   "Nevertheless, the authorities of Canton Bern will have to do everything to accelerate the proceedings and in particular to question (or possibly to confront with the applicant) those persons in respect of whom there exists a danger of collusion. The mere fact that the case is complex would hardly justify detention on remand for years."           Meanwhile, on 6 September 1985 the applicant filed a request for the preparation of an expert opinion on certain company accounts. This was his only request to obtain evidence during the preliminary investigations.   An expert opinion was eventually ordered in July 1986.           The applicant's third request to be released from detention on remand of 17 March 1986 was again dismissed by the Indictment Chamber.   His public law appeal was dismissed by the Federal Court on 25 August 1986.           The Federal Court confirmed in particular that there continued to exist a danger of absconding in particular as the applicant had expressed the wish to start a new life in the United States of America. On the other hand, the Court found that a danger of collusion could in future no longer be assumed as the last co-accused, a certain V.K., had meanwhile been arrested, and the interrogations of the most important witnesses had been completed.           The Court considered that the applicant was mainly responsible for the length of his detention, since the complexity of the case was due to his failure properly to keep the accounts of the various companies.           The Court noted that the two investigating judges charged with the investigations had so far worked very intensively, but that no assessment of the materials had yet commenced with a view to a subsequent indictment.   Nor was it clear whether expert opinions should be ordered in respect of the company accounts and the psychiatric examination of the applicant.   Finally, the Court considered that the length of the applicant's detention on remand did not yet come too close to the length of the applicant's prospective prison sentence, even if in this respect the Indictment Chamber had probably gone too far when it assumed that an eventual sentence might be in excess of five years.           In July and October 1986 the investigating authorities ordered the preparation of two expert opinions concerning the company accounts, and a psychiatric examination of the applicant, respectively.   The accountancy opinion was submitted on 10 April 1987, the psychiatric opinion on 22 December 1986.   The latter confirmed the applicant's full criminal responsibility (Zurechnungsfähigkeit).   On 19 January 1987 the investigating authorities unsuccessfully requested the Bern Guardianship Office (Vormundschaftsbehörde) to place the applicant under guardianship.           On 12 December 1986 the applicant filed a fourth request to be released from detention on remand, which the Indictment Chamber dismissed on 20 January 1987.   The applicant's subsequent public law appeal was dismissed by the Federal Court on 24 March 1987.           The Court found that, insofar as the applicant complained of the time required to prepare the expert accountancy opinion, namely eight months, he himself had disregarded elementary rules of accountancy, for instance by filling financial "holes" in one company with the means of other companies.           The Court further noted the volume of the case-files, consisting of a row of one hundred metres, and observed that the authorities, in view of the nature of the case had appointed two investigating judges which now envisaged terminating the investigations by autumn 1987.   The Court also noted the applicant's refusal to answer questions.   The decision continued:   [German]   "Immerhin sei betont, dass eine Praxis, wonach ein schwerer Wirtschaftsdelikte, jedoch keiner Gewalttaten verdächtiger Angeschuldigter allein wegen genereller Fluchtgefahr notwendigerweise bis zur rechtskräftigen Beurteilung seiner Sache in Haft zu bleiben habe, mit dem Grundrecht der persönlichen Freiheit nicht vereinbar wäre...   Zu berücksichtigen ist in diesem Zusammenhang auch, dass der Anreiz zur Flucht im allgemeinen abnimmt, je grösser der bereits erstandene Haftanteil wird.   Untersuchungsrichter, Staatsanwaltschaft und Anklagekammer werden daher nach Vornahme der wenigen Untersuchungshandlungen, bezüglich welcher noch eine gewisse Kollusionsgefahr angenommen werden kann, längstens jedoch nach einer Haftdauer von 21/2 Jahren, die Haftentlassung des Beschwerdeführers unter Anordnung der geeigneten Ersatzmassnahmen im Sinne von Art. 111a des bernischen Gesetzes über das Strafverfahren in Erwägung ziehen müssen. Anders verhielte es sich nur dann, wenn sich bis dahin konkrete Anhaltspunkte für eine Fluchtabsicht ergeben sollten.   Der Haftgrund der Wiederholungsgefahr ... dürfte dagegen bei dem nicht vorbestraften Beschwerdeführer ausser Betracht fallen."   [English translation]   "It has nevertheless to be emphasised that it would no longer be compatible with the basic right of personal freedom if an accused suspected of serious economic offences but not of violent acts was detained on remand until the final determination of his case merely on the ground of a general danger of absconding...   It has also to be taken into account in this respect that the incentive to abscond generally decreases as the proportion of time spent in detention increases.   The investigating judges, the Public Prosecutor's Office as well as the Indictment Chamber will all have to consider the applicant's release from detention together with any suitable concomitant supplementary measures within the meaning of Article 111a of the Bern Code of Criminal Procedure, once they have undertaken the few investigating acts in respect of which a certain danger of collusion can still be accepted, but at the latest after a period of detention of two and a half years.   Matters would only be different if until then there should be concrete indications of a danger of absconding.   The danger of repetition on the other hand ... would not play a part since the applicant has not previously been convicted."           Meanwhile, during these proceedings the applicant was in exceptional cases not permitted to be present during certain acts of investigation.   Upon the applicant's complaint, the Indictment Chamber decided on 27 January 1987 that the applicant was to be granted the right in principle to be present during the investigations.           On 16 April 1987 the Public Prosecutor's Office in Munich which was conducting the investigations concerning the applicant in the Federal Republic of Germany established its report which was subsequently sent to the investigating judges in Bern.           In 1987 moneys and valuables concerning the applicant and other persons were confiscated on the basis of orders of, or following searches on, 16 and 19 January, 9 February, 5 March, 14 May, 2 July, 19 and 21 August (concerning the applicant's personal objects such as a watch and ring and the surplus resulting from the sale of real property) and 1 December (concerning a life insurance policy).           On 3 August 1987 the applicant filed a fifth request to be released from detention on remand which was dismissed by the Indictment Chamber on 4 September 1987.   His public law appeal was dismissed on 29 October 1987 by the Federal Court.           The Federal Court considered in particular that the delay was justified by the additional work resulting from the investigations. Moreover, an excess of the maximum permissible duration of detention on remand would not be excluded as long as the investigating authorities had handled the investigations speedily.   While its decision of 24 March 1987 had envisaged a maximum length of detention of two and a half years, the investigating authorities had meanwhile taken over proceedings instituted against the applicant in the Federal Republic of Germany.   Nevertheless, the length of detention on remand should not come too close to the anticipated maximum duration of the prison sentence.   In this respect the Federal Court did not regard it as unreasonable that the investigating authorities anticipated a prison sentence of more than five years, particularly since the German authorities also considered that the applicant had committed the offence of fraud under German law.   As a result, the detention on remand did not yet exceed the critical limit.           The applicant's sixth request of 2 December 1987 to be released from detention on remand was rejected by the Indictment Chamber on 9 December 1987.           On 18 December 1987 the applicant requested unsupervised visits by his wife.   This request was dismissed by the Indictment Chamber on 16 February 1988, and the Federal Court on 19 May 1988.           On 1 February 1988 the applicant filed a seventh request to be released from detention on remand, which was dismissed by the Indictment Chamber on 18 February 1988.   The latter found in particular that the danger of absconding could not be avoided merely by imposing substitute securities.   Rather, substantial financial guarantees would have to be submitted which the applicant had nevertheless refused to provide.   The applicant's subsequent public law appeal was dismissed by the Federal Court on 25 April 1988.           The Federal Court found that the applicant had failed to demonstrate that in his case there no longer existed a danger of absconding.   It further regarded the duration of detention pending trial as still falling within the permissible limit, in particular since the anticipated prison sentence would probably exceed five years by far.   While the investigating authorities had frequently postponed the date at which the investigations would be closed, the Court noted in particular the difficulties of preparing a day-by-day journal on the basis of the information gathered and the fact that investigations were also being conducted against other accused persons, each charged with different offences.   Moreover, the applicant continued to refuse to co-operate with the authorities, and one of the investigating judges had fallen ill.   The Court nevertheless urged the investigating authorities to conclude the investigations within the next months.           Meanwhile, on 17 February 1988 the applicant filed a complaint that various personal gold objects had not been handed out to him.   He also complained that in certain bankruptcy proceedings he had not been able to consult the case-file, and that in civil proceedings in which he was involved he had not been granted a further officially appointed lawyer.   These complaints were dismissed by the Indictment Chamber on 17 February 1988.           On 7 March 1988 the Bern Cantonal Police Office charged with the investigation of one business enterprise, the ITF/Sülan, established their final report and transmitted it to the investigating judges.           On 16 March 1988 the applicant challenged an investigating judge on account of certain remarks which the latter had made.   The challenge was dismissed by the Indictment Chamber on 28 March 1988, and by the Federal Court on 11 July 1988.           On 18 May 1988 the applicant filed his eighth request to be released from detention on remand.   The request was dismissed by the Indictment Chamber on 27 June 1988.           The applicant's further public law appeal was partly upheld by the Federal Court on 19 August 1988.   With reference to the Convention organs' case-law, the Court found in particular that the applicant had not been granted the possibility in these proceedings to comment on statements of the Public Prosecutor (Generalprokurator) and the investigating judges.           As a result, the applicant was granted the possibility to comment on the statements concerned.   Subsequently, on 6 September 1988 the Indictment Chamber again dismissed the applicant's eighth request to be released from detention on remand.   The applicant filed a further public law appeal which the Federal Court again partly upheld on 15 November 1988.           The Court found that a mere theoretical danger of collusion did not suffice to justify further custody.   In the applicant's case however there were concrete indications that such a danger existed. The Court also noted that on 2 September 1988 the applicant had been indicted (see below II.) and that therefore it could not be said that the authorities had disregarded the Court's instructions of 25 April 1988.           On the other hand, with regard to the question whether the applicant's detention on remand was approaching the absolute limit, the Court stated that for the calculation of the prospective prison sentence not all criminal offences, but only those in respect of which it was virtually certain that the applicant would eventually be convicted, had to be considered.   The cantonal authorities had assumed a possible sentence of 15 years which in the Court's view was clearly exaggerated (deutlich übersetzt).   In view thereof the cantonal authorities had failed to examine the possibility of the applicant's early provisional release from detention.   The Court thus quashed the decision of the Indictment Chamber of 6 September 1988 with the instruction to consider the possibility of provisional release.           On 10 January 1989 the Indictment Chamber dismissed for a third time the applicant's eighth request to be released from detention on remand.           The applicant's subsequent public law appeal was dismissed by the Federal Court on 23 February 1989.   The Court agreed in particular with the Indictment Chamber's view that there were no convincing reasons (triftige Gründe) warranting provisional release.   Reference was made in particular to the psychiatric opinion of 22 December 1986 according to which the applicant qualified as a swindler (Hochstapler) and an unrestrained hedonist.   The Court also found it irrelevant that the applicant's conduct during detention had been excellent.           During these proceedings the applicant offered a security amounting to 30,000 SFr.   The security was considered insufficient by the authorities in view of the presumed damages at a value of over 50 million SFr.                                   II.           Meanwhile, on 29 April 1988 the investigating judges announced in the document "Notification and decision" their intention to commit the applicant for trial before the Criminal Chamber for Economic Offences (Wirtschaftsstrafgericht) at the Bern Court of Appeal.   The notification referred inter alia to the charges of professional fraud, fraudulent bankruptcy, forging and suppressing documents and tax fraud.           With regard to the charges of professional fraud, the notification referred to damages of at least 50 million SFr, caused between 1977/1978 and 1985.   It stated that the applicant had, in order to enrich himself, as sole or mainly responsible person with the help of front-men abused the control of many companies located in Switzerland, Panama, the Caribbean, the United Kingdom and the Federal Republic of Germany.   He had created a network of relations between the companies which he then exploited by all means.   When the applicant encountered financial difficulties, he tried to solve them by exploiting new companies, thus leading more and more companies into bankruptcy.   He deceived his creditors by means of false financial securities and statements about the state of the companies.           On 17 May 1988 the applicant filed comments on these charges.           On 26 May 1988 the criminal proceedings against the applicant and two other co-accused were separated in view of the urgency of their case.           On 28 June 1988 the applicant complained that he was not permitted to consult the case-file, and that his lawyer was not allowed to take certain files to his office or use the official photocopier free of charge.   These complaints were dismissed by the Indictment Chamber on 27 July 1988.           On 2 September 1988 the applicant was committed for trial (Überweisungsbeschluss) before the Criminal Chamber for Economic Offences at the Bern Court of Appeal (Wirtschaftsstrafgericht).           On 30 August 1988 various orders were issued concerning the confiscation of coins and stamps amounting to approximately 500 SFr and two bonds (Schuldbriefe).           On 3 October 1988 the special investigating judges filed a report numbering 50 pages on the manner in which the preliminary investigations against the applicant had been conducted.           The trial commenced on 17 February 1989 and lasted until 30 March 1989.           On 30 March 1989 the applicant was convicted by the Criminal Chamber for Economic Offences at the Bern Court of Appeal inter alia of various instances of professional fraud, fraudulent bankruptcy, partly committed until December 1985 while the applicant was remanded in custody, and forging and suppressing documents.   The applicant was sentenced to 11 years' imprisonment and a fine of 10,000 SFr.   The detention on remand of 1,465 days was counted towards the sentence. The applicant was ordered to pay court costs amounting to 179,900 SFr.           One co-accused was sentenced to three years' imprisonment and a fine of 2,000 SFr, another co-accused to two and a half years' imprisonment and a fine of 2,000 SFr.   These co-accused were also ordered to pay court costs amounting to 25,700 SFr each.           The written reasons of the judgment were served on the applicant on 15 January 1990.   COMPLAINTS           The applicant complains under Article 5 para. 3 of the Convention of the length of his detention on remand lasting since 27 March 1985.   In his opinion, this length has been warranted neither by the complexity of the case nor by his refusal to co-operate with the prosecution;   it is not proportional to the envisaged prison sentence.           The applicant submits that from the beginning it was clear that an experienced investigating judge was called for.   Yet the two investigating judges appointed had no specific experience and the result of their investigations was insufficient for an indictment. In the applicant's opinion too much work was invested in the investigations.   In fact, it became impossible for him effectively to have access to the case-materials.           The applicant contends that the committal for trial statement was too summary.   It could also not be argued that the lengthy period of investigations was compensated by speedy trial proceedings, since the written reasons of the judgment were only prepared many months later.           The applicant finally draws attention to procedural issues during the proceedings, for instance the restrictions when consulting the case-file.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 20 September 1988 and registered on 10 November 1988.           On 12 July 1989 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.           The Government's observations were received by letter dated 13 October 1989 and the applicant's observations were dated 13 December 1989.   THE LAW           The applicant complains of the length of his detention on remand.   He submits that neither the complexity of the case nor his refusal to co-operate with the authorities justified this length.   The applicant relies on Article 5 para. 3 (Art. 5-3) of the Convention which states:   "3.       Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) (Art. 5-1-c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial.   Release may be conditioned by guarantees to appear for trial."           The Government submit that when determining whether or not the length of the applicant's detention on remand was reasonable, all circumstances of the case must be considered, namely the volume and complexity of the matter, the conduct of the authorities and the applicant, and the relationship between the length of the detention and the seriousness of the offences at issue.           The Government consider that in the present case there were concrete indications to assume a danger of absconding and of collusion.   There was also a risk that the applicant would commit further offences.           The Government further recall that the authorities of the Canton of Bern were here confronted with their most complex case ever concerning economic offences.   Thus, 12 persons were charged, six were arrested and remanded in custody, and the damages exceeded 50 million SFr.   The applicant had intentionally failed properly to organise the accounts of his many companies.   The investigations which had also to be conducted on an intercantonal and international level, covered a period of eight years.   Only the most important transactions were eventually considered at the trial.           The Government observe that two special investigating judges as well as other persons exclusively dealt with the case.   These investigating judges were lawyers (Anwälte) with many years of experience gained in the registry of the Bern Court of Appeal.   The Federal Court regularly declared unfounded the applicant's complaints that the judges were incompetent or had delayed the proceedings.   The Federal Court also constantly exhorted the cantonal authorities speedily to pursue their investigations.           On the other hand, the Government note that the applicant refused to give evidence.   The conclusions of the Federal Court are emphasised according to which the main responsibility for the length of the detention fell to the applicant.   Thus, the defence did not contribute to the ascertainment of the facts.   In view of the eventual prison sentence of 11 years, the Government consider that detention on remand lasting four years cannot be regarded as being disproportionate.           The Commission, having regard to the parties' submissions, considers that the application raises complex issues of fact and law which can only be resolved by an examination of the merits.   The application cannot, therefore, be declared manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.           For these reasons, the Commission,           by a majority, DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                              (C.A. NØRGAARD)