CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mai 1991

.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. 13972/88                       by I.                       against Switzerland             The European Commission of Human Rights sitting in private on 31 May 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 5 May 1988 by I. against Switzerland and registered on 23 June 1988 under file No. 13972/88;           Having regard to:   -        the observations submitted by the respondent Government on 20         April 1990 and the observations in reply submitted by the         applicant on 25 June 1990;   -        the submissions of the parties at the hearing of 31 May 1991;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant, an Italian citizen born in 1942, is a travelling salesman currently detained at Lugano prison in Switzerland.   Before the Commission he is represented by Mr.   F.C. Fischer, a lawyer practising in Zurich.   A.       Particular circumstances of the case           On 2 February 1985 the applicant arrived by plane from Bangkok at Zurich airport.   At the customs control, a certain Giuseppe (later Giovanni) M. who disembarked from the same plane was found to have 1.385 kg of heroin in his suitcase.   When the customs officer asked M. whether he had a colleague, M. pointed to the applicant.   The latter then explained to the customs officer that he was travelling with a group.   When a search provided no further results, the applicant was permitted to leave.   Following further investigations, a connection was suspected between M. and the applicant, and a search for him was started.   The applicant was arrested on the same day at Lugano on a train to Italy.   I.           Immediately after his arrest the applicant asked a certain Mrs.   S.C. for help.   The latter then contacted Mrs.   B.G., a lawyer (Rechtsanwältin).           On 3 February 1985, a Sunday, the applicant was questioned by a Zurich District Attorney (Bezirksanwalt).   The applicant spoke in Italian and an interpreter was present.   The applicant explained inter alia that he had travelled via Zurich to and from Bangkok as a travel agent at Barletta in Italy had told him that this was cheaper.   By coincidence, another person of whom he only knew the first name, Giuseppe, had also booked the same trip at Barletta.   On the plane he had never sat next to Giuseppe.   The applicant contested the charge of having been involved in the importation of drugs into Switzerland.   He also requested an officially appointed lawyer.           On 8 February 1985 Mrs.   B.G. sent the applicant a letter in which she offered to represent him.   He then signed and returned the enclosed power of attorney.           On 13 February 1985 a police officer questioned the applicant. The latter explained that while he did not know Giuseppe's family name, he, the applicant, had been asked to write the family name C. on the name tag of Giuseppe's suitcase in the train from Milan to Zurich. The applicant also explained that at Bangkok airport he noticed that the name C. did not coincide with that person's name in the passport which was G.           The applicant was again heard by a police officer on 15 February 1985.   He stated inter alia that he had sat next to Guiseppe on the flight to Bangkok.   In Bangkok he had not been present when Giuseppe had received a suitcase.           On 18 February 1985 a Bülach District Attorney questioned the applicant who stated that he hoped to be confronted with Giuseppe.           On 25 February 1985 Mrs.   B.G. resigned as the applicant's representative.   On the same day, the applicant's present lawyer was officially appointed as his representative.           Subsequently the applicant's present lawyer received the case-file for consultation.   By letter of 4 March 1985 he returned the case-file to the District Attorney's Office.           At an interrogation on 8 March 1985 the applicant told the District Attorney that in the train from Barletta to Zurich Giuseppe had asked him to sign the name G. in his new passport.           In respect of all these interrogations the applicant's officially appointed lawyer did not ask to be present, nor was he invited to be present, though he subsequently received transcripts thereof.           On 8 March 1985 the District Attorney informed the Zurich Cantonal Police (Kantonspolizei) of a coming mission of a police officer to Italy concerning the applicant's case.   The District Attorney thereby referred to "inquiries which had urgently to be made in Barletta ...   Italy" ("sind dringend Abklärungen in Barletta ... Italien zu tätigen") and that the investigations which the police officer would undertake would require previous consultation (nach Rücksprache) with the District Attorney.   The applicant's lawyer was informed of this letter.   The applicant's lawyer then telephoned the District Attorney's Office that he had no supplementary questions to be put during the investigations in Italy.           On 13 March 1985 the District Attorney applied to the Federal Office for Police Affairs (Bundesamt für Polizeiwesen) to transmit to the Italian authorities a commission rogatory enabling in particular the District Attorney, accompanied by two police officers, to question the staff of certain travel agencies and to obtain documents concerning the applicant and M.   The applicant's lawyer submits that he was told about this letter only on 9 April 1985.           On 2 and 3 April 1985 the District Attorney and two police officers questioned witnesses at Barletta in Italy, in particular two travel agents.           On 9 April 1985 the applicant's lawyer conferred with the District Attorney.   There are different versions as to the content of this conversation.   According to the subsequent decision of the Zurich Court of Appeal (Obergericht) of 17 January 1986 he was informed that the applicant would again be questioned on 11 April 1985.   According to the submissions of the applicant's lawyer, he was not informed   thereof; rather, the conversation merely concerned the applicant's detention on remand.   It is undisputed that the applicant's lawyer was further told about the investigations in Italy.   The applicant's lawyer eventually received a copy of the minutes of the investigations in Italy.           On 11 April 1985 the applicant was questioned by the District Attorney and asked to explain certain contradictions in his previous statements.   The applicant contested certain results of the investigations in Italy.   A lawyer was not present.           By letter of 17 April 1985 to the District Attorney, the applicant's lawyer acknowledged receipt of the minutes of the interrogations of 11 April 1985, as well as the transcript of the hearing at Barletta on 2 April.   The lawyer complained that he had not been invited to either occasion.           On 6 June 1985 a final interrogation took place at the Bülach District Attorney's Office.   The applicant's lawyer was present.           On 10 June 1985 the Bülach District Attorney's Office indicted the applicant before the Bülach District Court (Bezirksgericht) for the offence of importing and transporting drugs.   M. was indicted for the same offence.           The trial took place on 26 June 1985.   The applicant, M. and their lawyers were present.   The applicant's lawyer stated, inter alia, that the results of the investigations in Italy were invalid as he had not been able to put questions to the witnesses.   It does not transpire from the minutes of the trial whether the applicant or his lawyer put questions to M.           On 26 June 1985 the Bülach District Court convicted the applicant of contravening the Narcotics Act (Betäubungsmittelgesetz) and sentenced him to seven years' imprisonment as well as 15 years) expulsion from Switzerland.   The co-accused Giovanni (previously Giuseppe) M. was sentenced to six years' imprisonment.   The applicant and M. were each ordered to pay half of the costs of the proceedings amounting to 14,543.50 SFr.           In its judgment the Court noted in particular that the applicant had contradicted himself during the various interrogations as to whether he knew the first and the family name of M.; as to where he had noticed that the family name G. was not the name C.; and as to the issue whether he had sat next to M. on the plane.   The Court referred to further contradictions mentioned in the bill of indictment.   The District Court concluded that for this reason the applicant's claim that he was innocent could not be taken seriously. It considered that M., who is illiterate, had himself made so many contradictions that doubts arose as to his mental capacities and that it would have been impossible for M. to organise such a transport of drugs.   The Court noted that M. had told the investigating authorities upon his last interrogation on 15 May 1985 that it had been the   applicant who had constantly accompanied him and who had told him when to pick up the suitcase in Bangkok; thus the applicant's function had been to assist and supervise M.   The Court concluded that the applicant had knowingly and willingly participated in the transport of drugs.     II.           The applicant filed an appeal (Berufung) against this judgment to the Zurich Court of Appeal (Obergericht).   M. also filed an appeal but later withdrew it.           On 23 December 1985 the applicant's lawyer requested, in a letter to the Court of Appeal, the hearing of two witnesses, D.G. and G.C., possibly also of M.   The applicant's lawyer explained that D.G. and G.C. had been present in prison when M. had apologised to the applicant claiming that he, M., had incriminated the applicant upon his lawyer's advice, in order to get a more lenient sentence.   The applicant's lawyer also requested the Court to take to the case-file the file of another Italian, M.A., who had been arrested, and who was the lover of M.'s wife and the actual organiser of the drug transport.           On 8 January 1986 a telephone conversation took place between the applicant's lawyer and judge P. of the Zurich Court Appeal. According to the note for the file prepared by the applicant's lawyer on 30 June 1986, judge P. stated that he did not regard it as necessary to hear D.G. and G.C.   Moreover, M. had already stated so much nonsense (Unsinn) that his testimony was completely useless.   The note continues:           <Translation> "Dr.   P. continues with the (verbatim) 'very tentative question' whether I would like to withdraw the appeal.   The case is quite clear for him and there is in his view not the slightest chance that anything will be changed with regard to the first instance judgment."           <German> "Dr.   P. fährt dann mit der (wörtlich) 'ganz schüchternen Frage' fort, ob ich die Berufung denn nicht zurückziehen wolle.   Der Fall sei für ihn völlig klar und es bestehe seiner Ansicht nach nicht die geringste Chance, dass am erstinstanzlichen Urteil etwas geändert werde."           The applicant's lawyer replied that he had a different view of the case.           The appeal hearing took place on 17 January 1986 before the Second Criminal Chamber (Strafkammer) of the Zurich Court of Appeal. The bench of this collegiate court was composed of three judges, namely the chairman, judge P. and a further judge.   The applicant, his lawyer and the Public Prosecutor spoke.   The latter referred inter alia to M.'s incriminating statement.           After publicly deliberating the Court of Appeal, on 17 January 1986, convicted the applicant of contravening the Narcotics Act and sentenced him to seven years' imprisonment as well as 15 years' expulsion from Switzerland.   The Court confirmed the imposition of costs by the District Court and further ordered the applicant to pay 4786.40 SFr as costs for the appeal proceedings.           The Court found at the outset that it was unnecessary again to question M. as his evidence would not alter consideration of the applicant's case.   Moreover, M. had proved to be so untrustworthy (derart unglaubwürdig) that his statements would in any event be unimportant (keine wesentliche Bedeutung).   Insofar as the applicant complained that his lawyer had not been present when investigations were undertaken in Italy, the Court found that to the extent that the witnesses' statemens were relevant, they had been confirmed by the applicant.           With regard to the applicant's complaint that his lawyer had not been present when the applicant was questioned during the investigations, the Court noted that the lawyer had been informed about the date of 11 April 1985.   Moreover, at the final interrogation on 6 June 1985 where he had been present he had not asked any questions.   The applicant had also not demonstrated any disadvantages resulting from his lawyer's absence, and no such disadavantages were apparent.   The applicant had also not shown that the file of the other Italian, M.A., was relevant for his own case.           With regard to the issue of guilt, the Court referred in all parts to the considerations of the District Court.   The Court considered it extremely unlikely that by pure coincidence two persons from Barletta in Italy, who did not previously know each other, travelled together to Zurich, from there to Bangkok, where they stayed in the same hotel, and back.     III.           Against this decision the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) which was dismissed by the Zurich Court of Cassation (Kassationsgericht) on 8 October 1986.           The Court declared inadmissible the applicant's plea of nullity with regard to the alleged partiality of judge P. as he should have filed a challenge in this respect before the appeal hearing. Insofar as the applicant complained that his lawyer was not present when he was questioned, the Court noted, with reference to the case-law of the Federal Court (Bundesgericht; see below relevant domestic law and practice), that the applicant was not maintaining that a request had been rejected for unjustified reasons (unsachliche Gründe).   Moreover, the applicant's lawyer had been present on 6 June 1985 as well as at the appeal hearing.           The Court further regarded as unfounded the applicant's complaints that he had not been present when the authorities undertook investigations in Italy, since the applicant had afterwards accepted the results of the investigation; the applicant had not shown where this had not been the case.   Moreover, the statements of the two witnesses heard in Italy had not been considered for the judgment, and the applicant had not stated in what respect the Court of Appeal had nevertheless had had regard therein.     IV.           The applicant's subsequent public law appeal (staatsrechtliche Beschwerde) against the decision of the Court of Cassation of 8 October 1986 and the judgment of the Court of Appeal of 17 January 1986 was dismissed by the Federal Court on 5 November 1987.   The decision was served on 13 November 1987.           With regard to the applicant's complaints about judge P.'s remarks before, and his various comments at, the appeal hearing the Federal Court found it unnecessary to examine whether in this respect the applicant could address his complaint directly against the Court of Appeal since the facts complained of did not violate the Constitution. A judge's lack of impartiality would not be called in question if, on the basis of a consultation of the case-file, he told the lawyer that the appeal was without prospects of success (nicht für aussichtsreich hält).           Insofar as the applicant complained that his lawyer was not present when the applicant was being interrogated, the Federal Court referred in particular to its case-law concerning Section 17 para. 2 of the Code of Criminal Procedure of the Canton of Zurich (Straf- prozessordnung; see below Relevant domestic law and practice).   The Court found that the applicant had not complained that a request to be present had been arbitrarily rejected.   The Court noted that the lawyer had been present when the applicant was interrogated for the last time, and that the lawyer had received transcripts of the minutes of previous interrogations.   The applicant's rights of defence under the Swiss Constitution and the Convention had thus not been violated.           With regard to the applicant's further complaints, inter alia, about the lawyer's absence when the witnesses in Italy were questioned, the Court reiterated the grounds given by the appeal courts.   The Court also noted that both the applicant and the lawyer had been present at the trial before the District Court when M. was heard and that the Court of Appeal had not arbitrarily refused to hear M.     B.       Relevant domestic law and practice           As regards the presence of a lawyer when an accused is being interrogated, Section 17 para. 2 of the Code of Criminal Procedure of the Canton of Zurich states that "the investigating officer may permit the defence counsel to be present when the accused is being questioned in person" ("der Untersuchungsbeamte kann dem Verteidiger gestatten, den persönlichen Einvernahmen des Angeschuldigten beizuwohnen").           In ATF (Arrêts du Tribunal Fédéral) 104 Ia 17ff the Federal Court has interpreted this provision as permitting the exclusion of the lawyer, without any grounds being given, when the applicant is interrogated for the first time.   If the lawyer is excluded on subsequent occasions, grounds must be given.           According to Section 26 para. 1 of the Code of Criminal Procedure the investigating officer may delegate certain duties to the cantonal police.           As regards the questioning of witnesses, Section 14 of the Code of Criminal Procedure states that the accused and his lawyer are to be given the opportunity to be present on these occasions, and to put questions to the witnesses.           On the other hand, according to Swiss legal practice, a person accused of a criminal offence may not be questioned as a witness. This applies to a co-accused even if independent proceedings are being conducted against him (see R. Hauser, Kurzlehrbuch des schweizerischen Strafprozessrechts, 1984, p. 170).           As regards the scope of an appeal, Section 419 of the Code of Criminal Procedure states that the appeal may encompass complaints about all deficiencies of the investigations, the trial and the judgment of the first instance court.   The appeal suspends the execution of the judgment.     COMPLAINTS   1.       The applicant complains that his lawyer was not present when he was questioned on 3, 13, 15 and 18 February, 8 March and 11 April 1985.   The applicant also complains that neither he nor his lawyer were present when the witnesses were heard in Italy.   The applicant further complains that neither he nor his lawyer had an opportunity to question M.   It was not possible to question him as a witness, bound under the threat of punishment to tell the truth, as long as M. had not been convicted with legal effect.           The applicant relies in respect of these complaints on Articles 6 para. 3 (b), (c) and (d) of the Convention.   2.       Under Article 6 para. 1 of the Convention the applicant complains that the Court of Appeal judge P. was biased.   The applicant refers to the telephone conversation of 8 January 1986.           The applicant moreover complains that at the appeal hearing judge P. used a commanding voice and told the applicant to reply only with yes and no.   When during the public deliberation of the judgment the issue of the costs of the proceedings was discussed, judge P. refused to grant the applicant's request immediately to write off the costs; he allegedly stated that he did not feel like giving such a present to somebody who could spend 3,000.-SFr on an alleged holiday trip.   3.       Under Article 6 para. 2 of the Convention the applicant complains of the manner in which the courts concluded that he was guilty, submitting that his version of the events was not entirely improbable.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 5 May 1988 and registered on 23 June 1988.           On 5 February 1990 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 limited to the issues under Article 6 paras. 1 and 3 (c) and (d) of the Convention.           The Government's observations were received by letter dated 20 April 1990 and the applicant's observations by letter dated 25 June 1990.           On 3 December 1990 the Commission decided to invite the parties to a hearing on the admissibility and merits of the applicant's complaints under Article 6 paras. 1 and 3 (b), (c) and (d) that the applicant's lawyer was not present when the applicant was interrogated or when investigations were undertaken in Italy; that M. was not heard as a witness; and that judge P.'s remarks on the telephone disclosed lack of impartiality.           The hearing took place on 31 May 1991.   The Government were represented by their Agent, Mr.   Ph.   Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice, and by Mr.   B. Gehrig, judge at the Court of Cassation of the Canton of Zurich, Mr.   V. Lieber, a Registrar at that court, and Mr.   F. Schürmann of the European Law and International Affairs Section of the Federal Office of Justice.   The applicant was represented by his lawyer, Mr. F.C. Fischer.   THE LAW   1.       The applicant complains under Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b, 6-3-c, 6-3-d) of the Convention that his lawyer was not always present when he was questioned by the investigating authorities.   The applicant also complains under Article 6 para. 3 (b) and (d) (Art. 6-3-b, 6-3-d) that neither he nor his lawyer were present when witness were heard in Italy.   Moreover, neither he nor his lawyer had an opportunity to question M. as a witness.           The applicant further complains under Article 6 para. 1 (Art. 6-1) of the Convention of bias of Court of Appeal judge P.   The applicant refers to the telephone conversation of 8 January 1986 and to the manner in which judge P. conducted the appeal hearing.           The provisions of Article 6 (Art. 6) invoked by the applicant state, insofar as they are relevant:   "1.      In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing by an ... impartial tribunal.   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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;   d.       to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;     ..."   2.       The Government first contend that the applicant has not complied with the requirements under Article 26 (Art. 26) of the Convention in that he did not employ various remedies at his disposal. In particular the applicant failed to raise the complaint that Court of Appeal judge P. lacked impartiality until the beginning of the appeal hearing; in fact, he never produced the note concerning the telephone conversation before the Swiss courts.   Insofar as the applicant complained that his lawyer was not present when the applicant was being interrogated, the applicant's lawyer failed to ask the District Attorney to be present after his appointment on 25 February 1985.   As regards the applicant's complaint that his lawyer was not present at the investigations in Italy, the applicant could have asked for a new commission rogatory to question witnesses in Italy.   Finally, the Government submit that the applicant could have proposed to the District Attorney further questions to be put to M. which would have provoked a confrontation between the two accused.           Under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           However, the Commission considers that the Federal Court dealt in substance with all these complaints raised by the applicant.   He has therefore complied with Article 26 (Art. 26) of the Convention.   3.       The applicant complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention of the unfairness of the criminal proceedings instituted against him.           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 in the Convention.   In particular, it is not competent to deal with applications alleging that errors of law or facts have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).   a)       It is true that the applicant also complains under Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention that his lawyer was not always present when he was questioned by the investigating authorities.   A lawyer would have been particularly important in order to explain certain contradictions in the applicant's statements.           The applicant points out that, with the exception of 6 June 1985, his lawyer was not present at any interrogation and was not invited thereto.   He disputes in particular that his lawyer was informed of the interrogation of 11 April 1985.   The applicant emphasises the relevance of the pre-trial investigations in the Canton of Zurich, given the fact that at the trial the establishment of the facts of the case will usually be regarded as settled.   Thus it would have been important for the lawyer to be present during the interrogations.   It is not the practice in the Canton of Zurich individually to invite a lawyer or even to inform him of forthcoming interrogations.   A request for a general permission to be present at all future interrogations would also not be granted.           The Government submit that neither the Convention nor the Swiss Constitution directly grant a lawyer the right in principle to be present when the accused is being interrogated during the preliminary proceedings.   With reference to the Can case (Comm.   Report 12.7.84, para. 49, Eur.   Court H.R, Series A No. 96, p. 15 et seq.) the Government consider that Article 6 para. 3 (Art. 6-3) of the Convention only applies to preliminary proceedings if the latter are of crucial importance for the proceedings as a whole.   This is not the case under the criminal procedure of the Canton of Zurich.           The Government recall that Section 17 para. 2 of the Code of Criminal Procedure has been interpreted as permitting the District Attorney to refuse the lawyer to be present, without giving any grounds, when the accused is being questioned for the first time.   At the subsequent interrogations, reasons must be given for excluding the lawyer.   It is normal practice in the Canton of Zurich that the District Attorney informs the lawyer of forthcoming interrogations. While it is true that in the Canton of Zurich such investigations are of a certain importance for the trial, the Court of Cassation will certainly uphold a plea of nullity if it is justifiably alleged, for instance, that evidence which was important for the judgment was not considered.            The Government accept in the present case that the applicant asked for a lawyer to be present at the interrogations.   However, in the Government's opinion the applicant has not submitted that insufficient grounds were given for refusing the applicant's lawyer to be present at the interrogations.   In fact the lawyer himself did not ask to be present.   He knew that there would be an interrogation on 11 April 1985 and was present at the interrogation of 6 June 1985.   The Government thus regard the complaint that the applicant's present lawyer was not permitted to be present on three occasions as being manifestly ill-founded.           The Commission, having regard to the parties' submissions concerning the applicant's complaints under Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention that his lawyer was not always present when he was being interrogated by the Zurich investigating authorities, considers that this part of the application raises complex issues of fact and law which can only be resolved by an examination of the merits.   This part of the application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.   b)       The applicant further complains under Article 6 paras. 1 and 3 (c) and (d) (Art. 6-1, 6-3-c, 6-3-d) that neither he nor his lawyer were present when witnesses were heard in Italy.   It would have been important for the lawyer to be present in order to make any further requests on the spot for the taking of evidence.   The defence was thus deprived of a possibility to search for exonerating evidence.           In the applicant's submissions his lawyer was told that a police officer was going to Italy to collect certificates of good character.   It could not be expected from the lawyer to envisage any further questions which might arise during the District Attorney's investigations in Italy.           The Government contend that this complaint is manifestly ill-founded, submitting that the courts relied on the results obtained in Italy only to the extent that the applicant had himself accepted them.   Moreover, the applicant's lawyer who had been informed before the investigations, had stated that he had no questions to put.   After the investigations had taken place, the lawyer was given the minutes thereof, but he failed on this occasion to ask for the institution of a new commission rogatory.           The Commission recalls that the fair hearing to be granted to an accused person within the meaning of Article 6 paras. 1 and 3 (c) and (d) (Art. 6-1, 6-3-c, 6-3-d) of the Convention requires respect for the principle of equality of arms between the prosecution and the defence (see No. 7413/76, Dec. 16.5.77, D.R. 9 p. 101).           In the present case the Commission notes that the District Attorney undertook investigations in Italy together with two police officers.   There they questioned witnesses, in particular two travel agents, and the applicant's lawyer was not present.           However, according to the judgments of the Zurich Court of Appeal of 17 January 1986 and of the Zurich Court of Cassation of 8 October 1986 the results of these investigations were only used to the extent that they had been accepted by the applicant.   The Court of Cassation further considered that the applicant had not shown that the courts had used evidence which had not been accepted by him. Moreover, also in the proceedings before the Commission the applicant has not sufficiently demonstrated that for his conviction the Zurich courts relied on elements of evidence obtained in Italy which he had contested.           Accordingly, these complaints do not disclose any appearance of a violation of Article 6 paras. 1 and 3 (c) and (d) (Art. 6-1, 6-3-c, 6-3-d) 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.   c)       The applicant also complains under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) that neither he nor his lawyer had an opportunity to question M. as a witness bound under the threat of punishment to tell the truth. This was not possible as long as M. had not been convicted with legal effect.   It would therefore have been all the more important to be able to question him afterwards.   However, the Court of Appeal refused to hear M. as a witness as his testimony would be useless, yet M.'s statements were considered insofar as they incriminated the applicant.           The Government contend that this complaint is manifestly ill-founded.    Reference is made to the Isgro and Asch cases (see Eur. Court H.R., judgment of 19 February 1991, Series A No. 194-A; judgment of 26 April, Series A No. 203, respectively).   The Government submit that when M. was questioned before the District Court, the applicant and his lawyer were present, but failed to put questions to him. Questions could also have been put to him before the Court of Appeal, but as a former co-accused the value of his statements would have been qualified.   Finally, M.'s evidence would not have affected his previous statements in which he implicated the applicant.           The Commission recalls the Convention organs' case-law according to which the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them.   The evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial arguments.   As a rule, Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness (see Eur. Court H.R., Isgro judgment, ibid., paras. 31-34).           In the present case the Commission notes that on 26 June 1985 both the applicant and M., as well as their respective lawyers, were present at the trial before the Zurich District Court.   The applicant and his lawyer had therefore the possibility to put questions to M. Insofar as the applicant claims that M., who was then a co-accused, could not be questioned as a witness, the Commission considers that for purposes of Article 6 para. 3 (d) (Art. 6-3-d), M. should be regarded as a witness - a term to be given autonomous interpretation by the Convention organs - because the District Court in its judgment of 26 June 1985 in fact took into account M.'s statements (see Eur. Court H.R., Isgro judgment, ibid., para. 33).           It follows that there is no violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention and that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Under Article 6 para. 1 (Art. 6-1) of the Convention the applicant contends that the Court of Appeal judge P. was biased.   The applicant complains in particular of the telephone conversation of 8 January 1986.   The impression which the applicant's lawyer had was that judge P. would no longer consider exonerating circumstances.   The applicant also refers to the manner in which judge P. conducted the hearing before the Court of Appeal.           The Government contend that judge P. was Judge Rapporteur of a collegiate court.   He could not be regarded as being partial merely because he considered, on the basis of the case-file, that the appeal offered no prospects of success and told the lawyer so.   In fact, this is a frequent practice forming part of the relationship of trust between the Bar and the courts.   The minutes of the hearing equally do not indicate the partiality of judge P.           The Commission recalls that the existence of impartiality must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is by ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubts in this respect (see, amongst other authorities, Eur.   Court H.R., De Cubber judgment of 26 October 1984, Series A No. 86, pp. 13-14, para. 24).           In the present case, no issue arises as to the objective test. Rather, in view of the applicant's complaint that judge P. in fact regarded him as being guilty before he had been tried, the Commission must establish the judge's impartiality according to the subjective test.   In this respect the Commission recalls that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Eur.   Court H.R., De Cubber judgment, ibid., p. 14, para. 25).           The Commission observes that according to a note for the file prepared by the applicant's lawyer, a telephone conversation took place on 8 January 1986 upon the initiative of judge P. with the applicant's lawyer.   During this conversation judge P., inter alia, asked the applicant's lawyer whether he would not withdraw the appeal as in judge P.'s view there was not the slightest chance that anything would be changed with regard to the first instance judgment.           However, the Commission considers that this question was not the main purpose of the telephone conversation which concerned mainly organisational matters, namely the hearing of certain witnesses.   It has not been alleged before the Commission that judge P. was not impartial when reading the case-file and as Judge Rapporteur forming his opinion about the prospects of the applicant's appeal.   In fact, as the Federal Court also implied in its decision of 5 November 1987, judge P.'s comment only concerned his point of view obtained at that stage, i.e. on the basis of an early examination of the written case-file.   Judge P. was only one of three judges sitting at the hearing of the Court of Appeal, and his view, and the views of the other judges, would depend on the examination of any further written documents until the appeal hearing as well as on the appeal hearing itself.           As a result, while judge P.'s remarks during the telephone conversation are certainly regrettable, the Commission finds that they cannot serve to call in doubt his impartiality as such during the proceedings within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           Insofar as the applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention of judge P.'s conduct during the appeal hearing itself, the Commission finds that no issue arises under this provision.           It follows that these complaints do not disclose any appearance of a violation 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.   4.       Insofar as the applicant complains under Article 6 para. 2 (Art. 6-1) of the Convention of the manner in which the courts concluded that he was guilty, the Commission finds that no issue arises under this provision.   The remainder 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, by a majority,           DECLARES ADMISSIBLE, without prejudging the merits         of the case, the applicant's complaint under Article 6         paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention that         his lawyer was not always present when he was interrogated         by the Zurich investigating authorities;           DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Commission                President of the Commission             (H.C. KRÜGER)                               (C.A. NØRGAARD)