CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1994

.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. 18959/91                       by S.E. K.                       against Switzerland         The European Commission of Human Rights (First Chamber) sitting in private on 12 January 1994, the following members being present:              MM.    A. WEITZEL, President                  S. TRECHSEL                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber,         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 13 September 1991 by S.E. K. against Switzerland and registered on 17 October 1991 under file No. 18959/91;         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 they have been submitted by the applicant, may be summarised as follows.         The applicant, a citizen of the United States born in 1945 and residing since 1972 in Zurich, is a certified public accountant and tax consultant (Bücherexperte und Steuerberater) by profession.   Before the Commission he is represented by Mrs. V. Delnon, a lawyer practising in Zurich.         In 1982 M.P., a Mexican citizen, entrusted the applicant with the establishment and administration of a trust in Liechtenstein and transferred for this purpose a sum of 6 million US-Dollars to Switzerland.   This trust, the S. Trust, was established by the applicant on 20 September 1982 and an account for the S. Trust opened at the J.B. bank.         In February 1985 M.P.'s lawyer requested that information (Strafanzeige) be laid against the applicant, accusing him of having embezzled money entrusted to him for the use of the S. Trust.         On 18 and 25 April 1985 the applicant was questioned by the Zurich Cantonal Police (Kantonspolizei).   According to the transcripts of the interrogation of 18 April 1985 the applicant stated that on his proposal R.P., a real estate agent residing in the United States with whom the applicant was doing business, had contacted M.P. and presented to him a real estate development project on the Bahama Islands.   The applicant stated further that R.P., after having presented the project to M.P., had informed the applicant that M.P. did like the project but had not formally given his consent to an investment into the project.         On 9 May 1985 the President of the Zurich District Court (Bezirksgericht) appointed an ex officio defence counsel for the applicant.         On 9 May 1985, 14 October 1985 and on 15 October 1985, the applicant was further questioned by the Cantonal Police regarding details of the Bahamas development project and his financial transactions in this context.   In these interrogations the applicant was not assisted by his defence counsel nor was an interpreter present.         On 24 May 1985 the applicant requested the District Attorney to hear three witnesses, inter alia the real estate agent R.P.         On 26 November 1986 the applicant, in the presence of his defence counsel, was heard by the Zurich District Attorney (Bezirksanwalt) on the charges against him.   According to the transcript of the interrogation the applicant, inter alia, stated that M.P. had wanted to go ahead with the real estate development project, that he had not got the consent to the project directly from M.P. and that he had thought that M.P. had been informed about the investment by R.P., though not directly by the applicant.         On 17 June 1987 the Zurich Public Prosecutor's Office preferred a bill of indictment on the applicant accusing him of having embezzled funds of the S. Trust and having invested them into a real estate development project on the Bahama Islands.         On 9 September 1987 the indictment Chamber (Anklagekammer) of the Zurich Court of Appeal (Obergericht) allowed the indictment and decided that the trial against the applicant be held before the Court of Appeal sitting as court of first instance.         On 20 April 1988 the applicant requested the Court of Appeal to hear R.P. as witness for the defence in the trial.         On 27 April 1988 the first hearing before the Court of Appeal took place.   In the course of the hearing the applicant's lawyer requested the Court of Appeal to hear R.P. as witness.   During the trial an interpreter was present.         On 17 May 1988 the Court of Appeal adjourned the trial for taking further evidence, i.e. to request from the J.B. bank all the documents concerning the S. Trust and to hear M.P. and G.L., a former employee of the applicant, as witnesses.   On 18 November 1988 these witnesses were heard by one of the judges sitting in the applicant's trial at the Court of Appeal in the presence of the applicant's lawyer.         On 8 March 1989 a further hearing before the Court of Appeal took place and again the applicant's lawyer requested the Court to hear R.P. as witness.         On the same day the applicant was convicted for embezzlement and sentenced to 21 months of imprisonment.         The Court of Appeal found that on 29 September 1983, at a time when the applicant had been under financial strain, he had taken a loan from the J.B. Bank and pledged the funds of the S. Trust as security. The applicant used the money for the purchase of land on the Bahamas by a firm owned by him.   As the applicant could not pay back the loan, the J.B. bank eventually seized the security given and after October 1984, refused to give any more loans.         The Court of Appeal noted that the applicant did not contest the essential facts of the charge laid against him but denied that he had made the investment without M.P.'s consent.   The applicant had changed his version of the events in the course of the proceedings.   Initially, at the time of the police investigations, the applicant had maintained that he had acted in the interest of M.P., who did like the project, although without the latter's formal consent.   Then, a week before the trial, in his request for further evidence, the applicant maintained that R.P. actually had been given the order to invest in the Bahama project by M.P.   According to the applicant this change was due to the fact that he had no sufficient command of German and therefore the statements as recorded in the transcript of the police interrogations were not correct.   The Court of Appeal, however, found that the applicant did sufficiently understand German as he had made his statements in the trial in German.         Furthermore, the Court of Appeal considered that the version of the events as presented by the applicant in the police interrogations was corroborated by further evidence, namely entries into his business diary, a note concerning the investment in the Bahamas development project written by the applicant in 1985 and backdated to 29 September 1983, the facts that he did not inform M.P. of the investment although he met him on 28 September 1983 and that the applicant, rather than using the accounts of the Trust in the first place, took a loan and gave the Trust's accounts as security and that account sheets of the J.B. bank were withheld from M.P.         The Court of Appeal noted further that M.P. had stated in the proceedings that he had not been informed about the investment and the use of the funds of the Trust.   According to the Court of Appeal, M.P. was not a wholly credible witness, but after scrutiny of his statements it could follow his version of the events.         The Court of Appeal also dismissed the applicant's request for hearing R.P. as witness.   The Court of Appeal found that the hearing of this witness was not necessary as he would either confirm the version of the applicant as presented in the police interrogations, which would not ameliorate the applicants's situation or he would state that M.P. did give his consent to the investment.   This, however, would be a completely implausible statement, made for the purpose to protect the applicant and also R.P. himself, as he also had received money out of the investment made with the Trust's funds.         On 1 October 1990 the Zurich Court of Cassation (Kassations- gericht) dismissed the applicants plea of nullity (Nichtigkeits- beschwerde).   The Court of Cassation found that an anticipated assessment of evidence was admissible in cases where, even if the envisaged proof would be produced, this proof would not influence the result of the evidence.   Therefore, the Court of Appeal correctly refused to hear R.P. as witness.         The Court of Cassation held further that the applicant's statements before the police should be used in the proceedings before the Court of Appeal.   The use of these transcripts was in accordance with cantonal procedural law as the applicant had the possibility to express his view on important issues which arose during the police enquiries when he was heard by the District Attorney.   Furthermore, the applicant   was heard at length during the trial.   There he was also confronted with his statements before the police.   As regards the applicant's argument that his command of German was insufficient and therefore his statements before the police were wrongly recorded, the Court of Cassation found that the Court of Appeal had dealt sufficiently with this issue and the applicant had not given any convincing arguments against the Court of Appeal's findings.   Moreover, there were no indications that the transcripts of his interrogations by the police were incorrect.         On 21 November 1990 the applicant introduced a public law appeal (staatsrechtliche Beschwerde) to the Federal Court (Bundesgericht). He submitted in particular that his request for hearing R.P. as witness was refused by the Court of Appeal with arguments of anticipated assessment of the evidence.   He further submitted that the Court of Appeal in refusing his request for hearing R.P. as witness had simply relied on the transcripts of the applicant's interrogation by the police though these transcripts should not have been used in the trial. Moreover, these transcripts were incorrect as the applicant, who was not assisted by an interpreter or by a defence counsel during the police interrogations, he had no possibility of noting that his statements concerning R.P. were omitted by the police.         On 7 March 1991 the Cassation Chamber (Kassationshof) of the Federal Court dismissed the applicant's public law appeal.         The Federal Court held that the Court of Cassation had given sufficient reasons why it was not necessary to hear R.P. as a witness in the proceedings.   In his appeal the applicant had not shown why the Cassation Court's arguments were wrong, therefore the Federal Court could not deal with this complaint.   As regards the applicant's complaint that the transcripts of his interrogation by the police should not have been used in the proceedings, the Federal Court held that the applicant had not shown that the findings of the Cassation Court were unreasonable.   Furthermore, also as regards the applicant's argument that the transcripts of his interrogations by the police were incomplete as they did not contain a reference to R.P. as witness for the defence, the applicant had not shown that the Court of Cassation's arguments were wrong.   COMPLAINTS   1.     The applicant complains under Article 6 para. 1 and 3 (c) and (e) of the Convention about his conviction and in particular that the transcripts of his questioning by the police in the course of the preliminary investigations were used in the trial although he was questioned in the absence of a defence counsel.   His defence counsel was not allowed to participate in his interrogation by the police and could only participate on two occasions at the hearing of witnesses by the District Attorney.          He also submits that he had been questioned by the police in the absence of an interpreter although his command of German was not sufficient.   As a consequence, the transcripts of his questioning were not correct.   At the trial before the Court of Appeal in 1988 and 1989, the presence of an interpreter proved that the Court of Appeal was convinced that his command of German was not sufficient.   2.     The applicant complains further under Article 6 para. 1 and 3 (d) of the Convention that the Court of Appeal refused to hear R.P. as witness for the defence, relying on considerations which amounted to an anticipated assessment of evidence.   3.     Lastly, he complains under Article 6 para. 2 of the Convention that he had not been proved guilty according to law.   He submits that his statements before the police had been used in the trial in violation of domestic procedural law.   THE LAW   1.     With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its 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 an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).         As regards the applicant's complaints that the transcripts of his questioning by the police had been used in the trial, though he was questioned in the absence of a defence counsel and an interpreter, the Commission recalls that the guarantees contained in paragraph 3 of Article 6 (Art. 6) of the Convention are specific aspects of the general concept of fair trial set forth in paragraph 1 of this Article. In the circumstances of the present case, it will consider the applicant's complaint from the angle of paragraph 1 taken together with the principles inherent in paragraph 3 (c) and (e) (Art. 6-1+6-3-c+6-3-e) (see Eur. Court H.R., Bönisch judgment of 6 May 1985, Series A no. 92, p. 15, para. 29; Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).         The Commission notes that on 9 May 1985 a defence counsel was appointed for the applicant.   This counsel did not participate in the interrogations before the police but only on two occasions when the District Attorney heard witnesses.   However, the applicant did not submit that he requested to be accompanied by his lawyer to his interrogations by the police.   Moreover, the applicant's lawyer was present at the final interrogation on 26 November 1986, on which occasion the applicant was confronted with the accusations laid against him.   The applicant's lawyer was also present at the trial where he could call in question conclusions drawn from the statements made by the applicant upon his interrogation.         The Commission notes further that the Court of Appeal, in its judgment of 8 March 1989, dealt extensively with the applicant's complaint that he had no sufficient command of German and concluded that the applicant did sufficiently understand German.   These findings were confirmed by the Court of Cassation and the Federal Court in their respective judgments.   The Commission also notes that there is no indication that at the time of his interrogation by the police, the applicant had asked for the assistance by an interpreter, especially after having been assisted by counsel.         Under these circumstances the Commission, finds that there is no appearance of a violation of the applicant's right to a fair hearing in this respect.         This part of the application, therefore, is manifestly ill- founded within the meaning of Article 27 para.   2 (Art. 27-2) of the Convention.   2.     The applicant complains further under Article 6 para. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that the Court of Appeal refused to hear R.P. as witness for the defence, relying on considerations which amounted to an anticipated assessment of evidence.         The Commission considers that it cannot, on the basis of the file, determine whether there has been a violation of Article 6 para. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention as regards this complaint without the observations of both parties.         The Commission therefore adjourns this part of the application.   3.     The applicant finally complains under Article 6 para. 2 (Art. 6-2) of the Convention that he had not been proved guilty according to law.   He submits that   his statements before the police had been used in the trial in violation of domestic procedural law.         The Commission recalls that the presumption of innocence will be violated if, without the accused's having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67 et seq.).         In the present case, it does not appear from the evidence that during the proceedings, and in particular the trial, the Zurich Court of Appeal had taken decisions or attitudes reflecting such an opinion.         It follows that there is no appearance of a violation of the applicant's right under Article 6 para. 2 (Art. 6-2) of the Convention.         This part of the application, therefore, is also 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         DECIDES TO ADJOURN its examination of the complaint as regards       the Court of Appeal's refusal to hear R.P. as a witness for the       defence;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)