CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1992

.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. 16697/90                       by U.P.                       against Switzerland         The European Commission of Human Rights sitting in private on 30 November 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission                  Mr. M. de SALVIA, Deputy 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 26 May 1990 by U.P. against Switzerland and registered on 11 June 1990 under file No. 16697/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         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 Austrian national born in 1934, is a businessman residing in Vienna.   Before the Commission he is represented by Mr. Ludwig Minelli, a lawyer practising in Forch (Switzerland).   A.     Particular circumstances of the case         The background of the application is the sinking of a ship, the "Lucona", off the Maldives in the Indian Ocean on 23 January 1977, causing the death of six sailors.   The freight which went down with the ship allegedly consisted of an uranium recycling plant, which the applicant had insured in the amount of 31,000,000 Swiss francs on behalf of the ZAG, a company incorporated under Swiss law.         Doubts arose as to the circumstances of the accident and the nature of the freight.   Criminal proceedings were instituted against the applicant.         In 1985 and 1986 Mr. U., editor of the "Schweizerische Handels-Zeitung", a newspaper published in Switzerland, wrote three articles on the connection between Swiss businessmen and the "Lucona" affair.   In an article dated 5 June 1986 and headed "Lucona Insurance Scandal:   Proksch's Swiss Friends.   Insurance fraud drifts towards murder charge" ("Lucona-Versicherungsskandal:   Prokschs Schweizer Freunde - Versicherungbetrug steuert auf Mordanklage zu"), Mr. U. wrote the following:         [Translation]         "The mills of justice grind slowly.   In particular if       mutual assistance in criminal matters is concerned.   But       confectioner U.P. will probably not get the sweet millions       he wanted to grab from the Bundesländer-Versicherung in       Vienna and the Helvetia Feuer in St. Gallen in one of the       biggest insurance coups in Europe.   The sinking of the       "Lucona" in the far away Indian Ocean with its presumed,       highly insured cargo, a "well-packed" uranium recycling       plant, has not only woken up insurance firms and courts in       Austria.   Not only in Austria investigators are closing in       on U.P.; also in Switzerland evidence is getting       increasingly weighty because now also his friends in ...       find themselves in the dock.         Statements of "production" and eyewitnesses of the sinking       of the ship lead to the conclusion that what concerns the       courts is no longer just a simple insurance fraud, but an       increasingly strong suspicion of murder.   After all six       people died in the sinking of the ship and not without a       reason."         [Original]         "Die Mühlen der Justiz mahlen langsam.   Vor allem, wenn es       sich um internationale Rechtshilfe handelt.   Aber aus den       Zuckermillionen, die sich der Zuckerbäcker U.P. mit einem       der grössten Versicherungscoups in Europa bei der       Bundesländer-Versicherung in Wien und bei der Helvetia       Feuer in St. Gallen unter den Nagel reissen wollte, wird       wohl nichts.   Der Untergang der 'Lucona' im fernen       Indischen Ozean mit der vermeintlichen, hochversicherten       Fracht, einer 'wohlverpackten' Uranmühle, hat nicht nur       Versicherungen und Gerichte in Oesterreich wachgerüttelt.       Um U.P. ziehen sich die Fäden nicht nur in Oesterreich       enger, sondern auch die Beweise in der Schweiz werden immer       drückender, denn nun stehen auch seine Freunde in ... vor       den Gerichtsschranken ...         Aus den Aeusserungen der 'Produktions'- und Augenzeugen des       Untergangs lässt sich unschwer der Schluss ziehen, dass es       vor den Gerichte(n) schon lange nicht mehr einfach um einen       handfesten Versicherungsbetrug geht, sondern weit mehr um       einen sich immer deutlicher abzeichnenden Verdacht auf       Mord, denn schliesslich kamen beim Schiffsuntergang sechs       Personen nicht grundlos ums Leben."         With reference to these statements the applicant on 4 September 1986 brought a private prosecution against Mr. U. for defamation by the press (Ehrverletzung durch die Presse) at the Zurich District Court (Bezirksgericht).   On 1 June 1988 he filed the definitive version of his prosecution with the court.         On 16 February 1989 the District Court acquitted Mr. U. of the offence of defamation.   Upon appeal, the Zurich Court of Appeal (Obergericht) on 31 October 1989, confirming the District Court's judgment, also acquitted Mr. U.         In respect of the defamation charge under Article 173 of the Penal Code, the Court allowed Mr. U. to produce exonerating evidence as provided for in Article 173 para. 2 of the Penal Code.   The Court did not examine whether the accused had successfully proven that his accusations against the applicant were actually true ("proof of truth").   It examined however whether the accused had succeeded in producing the "proof of good faith" concerning the suspicion that the applicant had committed insurance fraud which also involved the suspicion of murder.   The Court then concluded that on the basis of evidence produced by him the accused had succeeded in producing this proof and consequently acquitted him.         In the course of the deliberation of the judges (which in the Canton of Zurich is public) following the court hearing, one of the judges stated as follows:         [Translation]         "I am convinced that it was insurance fraud.   As this is       inconceivable without the blowing up of the ship 'Lucona',       the ship must have been blown up."         [Original]         "Ich bin davon überzeugt, dass ein Versicherungsbetrug       vorliegt.   Weil dieser ohne Sprengung des Schiffes 'Lucona'       nicht denkbar ist, muss das Schiff gesprengt worden sein."         The applicant lodged two pleas of nullity (Nichtigkeitsbeschwerden) with the Zurich Court of Cassation (Kassationsgericht) and the Federal Court (Bundesgericht) respectively.         On 22 March 1990 the Zurich Court of Cassation dismissed the applicant's plea of nullity.   The Court held inter alia that the statement of the judge during the public deliberations did not appear in the judgment itself and statements during deliberations could not be considered to be of such relevance as to amount to a violation of the presumption of innocence.   The Court further held that there were no indications that the judge who made the statement was biased.         Against the judgment of the Zurich Court of Cassation the applicant introduced a public law appeal (staatsrechtliche Beschwerde).         Meanwhile the Federal Court on 23 April 1990 partly upheld the applicant's plea of nullity.   The Court found that the Court of Appeal had acted correctly in allowing Mr. U. to adduce exonerating evidence. It then examined the criteria to be applied to the proof of good faith in the present case and emphasised that the media, in reporting criminal proceedings, also had to respect the presumption of innocence as laid down in Article 6 para. 2 of the Convention.   The Court found that Mr. U. had not made sufficiently clear that he was expressing a suspicion of insurance fraud; rather he had presented the events as facts.   As Mr. U. had expressed more than a suspicion, the Court of Appeal had breached Federal law in that it found that the accused had succeeded in establishing the "proof of good faith".   In respect of the suspicion of murder as expressed by Mr. U. in his article, the Federal Court found that the Court of Appeal correctly assumed the "proof of good faith" as produced because the accused had expressed no more than a suspicion.         On 10 May 1990 the Federal Court decided not to admit the applicant's public law appeal as it had already dealt in substance with the complaint in its decision of 23 April 1990.         Proceedings were then resumed before the Zurich Court of Appeal. On 31 May 1990 the Court made an order for the taking of evidence (Beweisbeschluss) wherein it considered that the Federal Court's judgment only concerned the "proof of good faith" produced by the accused but did not exclude the possibility of adducing the "proof of truth".   In the absence of a conviction of the accused such a proof of truth could successfully be produced by demonstrating that the applicant's conviction could be expected with "practical certainty" (praktisch sicher).   The Court of Appeal therefore had to allow the accused to deliver such evidence.   Whether or not such "practical certainty"   could be established in the present case was a matter to be decided later in the proceedings.         On 31 May 1990 the applicant introduced a public law appeal with the Federal Court against the Court of Appeal's order for evidence to be taken, invoking Article 6 para. 2 of the Convention.         On 1 June 1990 the Federal Court advised the applicant to withdraw his public law appeal as the criminal proceedings instituted by him against Mr. U. would be time-barred on 5 June 1990 so that the Federal Court could no longer deal with the matter.         The applicant withdrew his public law appeal, which was struck off the Federal Court's list on 8 June 1990.     B.     Relevant domestic law         Section 173 paras. 1 to 3 of the Swiss Penal Code read as follows:         [Translation]         "(1) Whoever accuses or suspects before a third person            another person of dishonourable conduct or of other            facts likely to damage the accused or suspected            person's reputation,              whoever spreads such an accusation or suspicion,              shall be punished, upon complaint [of the            injured party], by imprisonment of up to six            months or by a fine.         (2)   If the accused proves that the statement made or            spread by him is true or that he had serious            reasons for considering it in good faith to be            true, he shall not be punished.         (3)   The accused shall not be allowed to produce            evidence and shall be punishable for such            statements if they were made or spread without            any motive of safeguarding the public interest            or otherwise without justification, but mainly            with the intention of slander, in particular if            the statement concerns the other person's            private or family life."            ...         [German]         "(1) Wer jemanden bei einem andern eines            unehrenhaften Verhaltens oder anderer Tatsachen,            die geeignet sind, seinen Ruf zu schädigen,            beschuldigt oder verdächtigt,              wer eine solche Beschuldigung oder Verdächtigung            weiterverbreitet,              wird, auf Antrag, mit Gefängnis bis zu sechs            Monaten oder mit Busse bestraft.         (2)   Beweist der Beschuldigte, dass die von ihm            vorgebrachte oder weiterverbreitete Äusserung            der Wahrheit entspricht, oder dass er ernsthafte            Gründe hatte, sie in guten Treuen für wahr zu            halten, so ist er nicht strafbar.         (3)   Der Beschuldigte wird zum Beweis nicht            zugelassen und ist strafbar für Äusserungen, die            ohne Wahrung öffentlicher Interessen oder            sonstwie ohne begründete Veranlassung,            vorwiegend in der Absicht vorgebracht oder            verbreitet werden, jemandem Übles vorzuwerfen,            insbesondere, wenn sich die Äusserungen auf das            Privat- oder Familienleben beziehen."         Under Article 178 of the Penal Code, prosecution for these offences is subject to a two-year limitation period.   However, the running of the period is interrupted and commences afresh whenever a measure of investigation is taken.   For offences involving an attack on a person's honour there is an "absolute" limitation after four years, that is twice the normal limitation period (Article 72 para. 2 of the Criminal Code).         In Switzerland, such offences are only prosecuted upon a complaint (Strafantrag) by the injured party.   In the Canton of Zurich, as in several other Cantons, the proceedings are known as "Privatstrafklageverfahren" (Article 287 of the Zurich Code of Criminal Procedure):   it is for the injured party, not the State authorities, to take the initiative.   The public prosecutor does not take part in the proceedings.   COMPLAINTS   1.     The applicant complains that he did not have a fair trial as required by Article 6 para. 1 of the Convention in that the Zurich Court of Appeal did not sufficiently deal with the applicant's arguments.   The applicant had presented statements made by the surviving members of the crew of the ship "Lucona" which would indicate that the cause for the sinking of the ship had not been an explosion, thus casting doubt on the suspicion that the applicant had committed insurance fraud.   2.     The applicant further complains that a judge of the Zurich Court of Appeal during the public deliberations on the applicant's appeal on 31 October 1989 had made a statement which was incompatible with the presumption of innocence as enshrined in Article 6 para. 2 of the Convention.   The applicant also complains that the decision of the Zurich Court of Appeal of 31 May 1990 to allow the accused to adduce evidence was incompatible with the presumption of innocence.   3.     Under Article 13 of the Convention the applicant complains that the Federal Court refused to deal with his public law appeal after the criminal proceedings instituted by the applicant had become time-barred.   THE LAW   1.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Zurich Court of Appeal in the proceedings which led to the acquittal of Mr. U. on 16 February 1989 did not sufficiently deal with the applicant's arguments.         Article 6 para. 1 (Art. 6-1) of the Convention reads in its relevant part as follows:         "In the determination of ... any criminal charge against       him, everyone is entitled to a fair and public hearing       within a reasonable time by an independent and impartial       tribunal established by law."         The Commission observes that in its judgment the Federal Court found that, in the absence of any judgment convicting the applicant and in view of the length of the incriminated article, the accused should also have referred to arguments against the suspicion of insurance fraud.   The Court further found that, as the accused had not done so, he had presented his accusation against the applicant as a statement of fact rather than the expression of a suspicion.   Therefore the Federal Court concluded that the Court of Appeal had wrongly assumed that the accused had expressed only a suspicion of insurance fraud vis- à-vis the applicant.         The Commission notes that the Federal Court quashed the judgment of the Zurich Court of Appeal precisely for the reason that the arguments put forward by the applicant against the suspicion of an insurance fraud had not been sufficiently dealt with by the Cantonal Courts.         This part of the application must therefore be declared manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains under Article 6 para. 2 (Art. 6-2) of the Convention that during the public deliberations of the Zurich Court of Appeal on the applicant's appeal, a judge had made a statement incompatible with the presumption of innocence.   Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Commission recalls that despite the wording of Article 6 para. 2 (Art. 6-2), which secures the presumption of innocence to "everyone charged with a criminal offence" ("toute personne accusée d'une infraction"), this provision has been consistently interpreted as also applying to situations where the person concerned is not or no longer formally charged with a criminal offence (cf. Eur. Court H.R., Adolf judgment of 26 March 1982, Series A. No. 49, p. 18, para. 39; Minelli judgment of 25 March 1983, Series A No. 62, p. 17 et seq., para. 34 et seq.; and Lutz, Englert and Nölkenbockhoff judgments of 25 August 1987, Series A No. 123, p. 24, para. 58; p. 55, para. 39; p. 80, para. 39). Furthermore the presumption of innocence is to be observed not only by the criminal court trying a case, but also by other authorities (cf. No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73; No. 9077/80, Dec. 6.10.81, D.R. 26 p. 211; and No. 10847/84, Dec. 7.10.85, D.R. 44 p. 238) including courts other than those which are competent to determine a criminal charge (cf. No. 9295/81, Dec. 6.10.82, D.R. 30 p. 227).         In the present case the Commission notes that the statement of the judge had been made in the course of deliberations on an appeal lodged by the applicant against the judgment of the Zurich Criminal Court.   The statement expressed the judge's conviction that the applicant had committed insurance fraud.   The Court of Appeal's judgment following these deliberations was however quashed by the Federal Court in so far as it concerned the accusations against the applicant of having committed insurance fraud.   In this respect the applicant cannot therefore be regarded as a victim within the meaning of Article 25 (Art. 25) of the Convention of an alleged violation of Article 6 para. 2 (Art. 25) of the Convention.         The applicant also complains under Article 6 para. 2 (Art. 6-2) of the Convention that the decision of the Zurich Court of Appeal of 31 May 1990 to allow the accused to adduce the proof of truth was contrary to the presumption of innocence.         The Commission notes the Federal Court's decision of 23 April 1990 according to which the Zurich Court of Appeal had acted correctly in allowing the accused to produce exonerating evidence within the meaning of Section 173 para. 2 of the Penal Code.   The Court did not take a final stand on the issue whether the accused could, in the absence of a judgment convicting the applicant, successfully produce the proof of truth, as the Court of Appeal had not based its earlier judgment on such evidence.         The Commission further notes that the Court of Appeal in its decision on the taking of evidence referred to these considerations of the Federal Court, stating inter alia that, in the absence of a conviction of the accused, the proof could successfully be produced by demonstrating that the applicant's conviction could be expected with "practical certainty" (praktisch sicher).   The Court of Appeal found however that whether or not such "practical certainty" could be established in the present case was a matter to be decided later in the proceedings.         The Commission therefore considers that the Court of Appeal's decision on the taking of evidence did not contain any statement to the effect that the applicant was found guilty of having committed an offence without having been duly convicted.         This part of the application is therefore also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Under Article 13 (Art. 13) of the Convention the applicant complains that the Federal Court had refused to deal with his public law appeal after the criminal proceedings instituted by the applicant had become time-barred.         Article 13 (Art. 13) of the Convention states:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."           Even assuming that the applicant had an arguable claim within the meaning of Article 13 (Art. 13), the Commission notes that he did in fact have an effective remedy against the alleged violation of his rights under Article 6 para. 2 (Art. 6-2) of the Convention, namely the possibility to file a private prosecution for defamation.   The fact that this remedy eventually failed does not indicate any lack of effectiveness.   The Commission further notes that, in the present case, the obstacle to the applicant's pursuing the remedy was brought about by the statute of limitation.   However, the applicant himself, after filing a provisional private prosecution, waited for one year and nine months before he presented the definite brief.   He must therefore assume the main responsibility for any delay in the examination of his case.         This part of the application is therefore also manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously,           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission      (H.C. KRÜGER)                                (C.A. NØRGAARD)