CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 septembre 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. 17602/91                       by Martin THOMANN                       against Switzerland         The European Commission of Human Rights sitting in private on 5 September 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              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 December 1990 by Martin THOMANN against Switzerland and registered on 7 January 1991 under file No. 17602/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 7 January 1994 and the observations in reply submitted by the applicant on 8 March 1994;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as they have been submitted by the parties, may be summarised as follows.         The applicant, born in 1949, is a Swiss national and resident in Zurich.   He is a businessman by profession.   Before the Commission he is represented by Mr. P. Joset and Mr. N. Ruckstuhl, lawyers practising in Binningen.   A.     Particular circumstances of the case         On 13 December 1988 the Basel-Stadt Public Prosecutor's Office (Staatsanwaltschaft) preferred an indictment (Anklageerhebung) against the applicant on charges of professional fraud, simple bankruptcy (leichtsinniger Konkurs), and violation of his obligation to keep books (Unterlassung der Buchführung).         The Basel-Stadt Criminal Court (Strafdreiergericht) fixed the period between 10 and 17 May 1989 as the date for the trial against the applicant.   The applicant could not be summoned for the trial on the ground that he had given notice of departure from his last place of residence without indicating his new place of residence.   A warrant of arrest was issued, which referred to the possibility that the trial could, at any time, be conducted in the applicant's absence (Kontumazialverhandlung).         Between 10 and 17 May 1989 the Criminal Court, sitting with the Judges Metzener, Becht-Gutmann and Memminger, conducted the trial in the applicant's absence.         On 16 May 1989 the applicant was arrested.   He was brought before the Criminal Court on 17 May 1989 for the pronouncement of the judgment.         On 17 May 1989 the Criminal Court convicted the applicant of fraud, simple bankruptcy and violation of his obligation to keep books, and sentenced him to two and a half years' imprisonment.         Thereupon, the applicant requested a rehearing of his case (Revision) under S. 267 para. 2 of the Basel-Stadt Code of Criminal Procedure (Strafprozessordnung), which was granted immediately by the three Judges mentioned above.         Subsequently, in normal trial proceedings, the Criminal Court fixed 30 October 1989 as the date for the new trial, to be conducted by the Judges Metzener, Becht-Gutmann and Memminger.         On 29 June 1989 the applicant challenged the Judges Metzener, Becht-Gutmann and Memminger for bias, referring to their participation in the trial proceedings leading to his conviction on 17 May 1989.         On 27 August 1989 the Basel-Stadt Criminal Court, sitting with the said Judges, dismissed the applicant's motion of challenge.         On 5 October 1989 the Basel-Stadt Court of Appeal (Appellations- gericht), upon the applicant's appeal (Beschwerde), quashed the decision of 27 August 1989 and ordered the Criminal Court to decide upon the applicant's motion of 29 June 1989 in the absence of the three Judges concerned.         The trial fixed for 30 October 1989 was postponed.         On 25 October 1989 the Basel-Stadt Criminal Court, sitting with the Judges Kunz, Stephenson and Stamm, dismissed the applicant's motion of challenge.         On 14 November 1989 the Basel-Stadt Court of Appeal dismissed the applicant's appeal against the decision of 25 October 1989.   The Court of Appeal considered in particular that the request under S. 267 para. 2 of the Basel-Stadt Code of Criminal Procedure was not an ordinary remedy, but, under given circumstances, resulted in a reversal of the conviction passed in the accused's absence (Kontumazurteil), the conduct of a normal trial and passing of a new judgment (S. 267 para. 4).   There was no legal rule of competence regarding the decision on whether the objection was granted and regarding the new trial, but, according to practice, the court in the composition which had conducted the trial in the accused's absence was also competent for the proceedings following a request for rehearing of the case.   The Court of Appeal observed that the new trial was supposed to amend the proceedings conducted in the accused's absence and that the judges conducting a trial in the accused's absence were aware of the provisional nature of their judgment and the possibility of a repetition of the trial in normal proceedings.   As the trial was completely repeated, its outcome was open.   There were no objective reasons to doubt the impartiality of the judges who had first participated in the trial in the accused's absence and then again participated in the trial in his presence.         On 2 May 1990 the Federal Court (Bundesgericht) dismissed the applicant's public-law appeal (staatsrechtliche Beschwerde).         The Federal Court, referring to its case-law on the question of impartiality of judges, considered that the participation of judges, who had passed a conviction in the accused's absence (Kontumazurteil), in the decision on the request of the person concerned for a rehearing of his case and the subsequent new trial against him, could not be challenged if the outcome of the normal trial appeared to be open and there was no appearance of predetermination.         The Federal Court found that the main difference between a normal trial and a trial in the accused's absence was that the accused could not make use of his rights of defence under SS. 181, 185 and 186 of the Code of Criminal Procedure, and could not be questioned by the court. Thus, in proceedings conducted in the accused's absence, the basis for the court's judgment was incomplete so far as those procedural elements were concerned which presupposed the accused's presence.   The accused's statements at the trial and the personal impression made upon the court are of great importance for the finding of the truth and the fixing of the sentence.   In order to make up for the disadvantages possibly suffered by the accused due to his absence, the different Swiss Codes of Criminal Procedure providing for a conviction in the accused's absence also entitled the convicted person to request a rehearing of his case in normal proceedings.   The purpose of the request for a rehearing under S. 267 of the Basel-Stadt Code of Criminal Procedure was not to review the judgment passed in the accused's absence, but to restore the case to the stage of the main proceedings in order to be freshly examined at a new trial in the accused's presence.         The Federal Court considered that, taking into account the importance of the accused's statements and the impression he makes at the trial, it appeared quite possible that the judges, when reexamining the case in normal trial proceedings, could come to a different result than in the proceedings in the accused's absence.   Thus the result of the normal trial proceedings appeared open although the judges had already participated in the proceedings in the accused's absence, and there was objectively no indication of predetermination.         The Federal Court also observed that the present case could not be compared to the case where a judge initially acts as investigating judge, as judge deciding on the committal for trial or as judge issuing a penalty order (Strafmandat), and then subsequently as trial judge. If, in cases of a conviction in the applicant's absence the further participation of the judges concerned in the review proceedings and the possible new trial amounted to a breach of the Constitution and of Article 6 para. 1 of the Convention, there would be a risk of abuse. In this respect, the Federal Court noted that, in those Swiss Cantons where the Code of Criminal Procedure did not subject the request for a rehearing to any conditions, the accused could avoid judges whom he disliked by not appearing in court.   Moreover, new judges would have to make themselves acquainted with the files, and thereby the workload of the courts would be further increased and criminal proceedings be delayed.   The judgment was sent to the applicant on 6 June 1990.         The new trial against the applicant was held before the Basel-Stadt Criminal Court, sitting with Judges Metzener, Becht-Gutmann and Memminger, between 26 September and 3 October 1990.         On 3 October 1990 the Basel-Stadt Criminal Court convicted the applicant again of fraud, simple bankruptcy and breach of his obligation to keep books and sentenced him to two years and three months' imprisonment.   B.     Relevant domestic law and practice   a.     Proceedings in the presence of the accused         In the course of a trial conducted in the presence of the accused, the President of the court (Gerichtspräsident) questions the accused about his personal situation.   Subsequently, the accused has the opportunity to make a brief statement on the indictment.   The President then questions him in detail on the charges against him (S. 178 of the Basel-Stadt Code of Criminal Procedure - Strafprozessordnung).         The accused can be confronted with witnesses (S. 179).         S. 181 provides that the accused can request the further taking of evidence.         Under SS. 185 and 186, he is entitled to put forward his defence following the statements of the Public Prosecutor and, possibly, the victim of the offence, and he has the last word following the Public Prosecutor's reply.   b.     Proceedings in the absence of the accused         SS. 260 to 267 of the Basel-Stadt Code of Criminal Procedure regulate the conduct of criminal proceedings against suspect persons and accused who are absent.         According to S. 260 preliminary investigations against a suspect who is absent are to be conducted, so far as possible and feasible, as completely as if he were present; in particular the relevant evidence is to be taken.         S. 261 para. 1 provides that the indictment may only be preferred (öffentliche Anklage erheben) against an absentee, who has been heard on the charges against him or who has himself rendered such hearing impossible, and if a reliable result of the trial appears secured despite the accused's absence.         Pursuant to S. 262 para. 1, the President of the criminal court (Strafgerichtspräsident) orders that the trial be conducted in the accused's absence (Kontumazialverhandlung), if an indictment has been preferred against an absentee or if the accused absents himself without sufficient excuse after having been committed for trial.   This order is included in the publications relating to search and investigation into the person's whereabouts.         S. 263 para. 1 provides that, if the accused cannot be brought before the court, the relevant parts of the investigation files are brought to the court's notice in that they are circulated or read out. Judgment is passed on the basis of the files after the parties present have been heard.   Under S. 263 para. 2, the President may, ex officio, or upon request of a party, order the hearing of witnesses or experts. The court may also order the further taking of evidence.         S. 264 relates to the judgment passed in the accused's absence (Kontumazurteil).   The proceedings are provisionally suspended, if the evidence does not suffice to convict the accused (S. 264 para. 1).   In case of the accused's conviction, the court decides upon the measures to be taken upon his apprehension.   The judgment should, if possible, immediately be executed (S. 264 para. 2).         S. 266 concerns the remedies open to the parties present at the trial.         S. 267 regulates the accused's remedy against his conviction. Pursuant to S. 267 para. 1 the accused convicted in his absence is notified of his conviction as soon as he is brought before or surrenders to the court; the notification is done in the presence of the Public Prosecutor's Office, if the conviction followed an indictment (öffentliche Klage).   According to S. 267 para. 2, the convicted person is entitled to request a rehearing of his case (Revision des Verfahrens) within ten days after notification; the Public Prosecutor's Office has the same right in case of judgments following an indictment.   The request of a convicted person who was summoned for the trial may only be granted if he shows that he did not receive the summons or was, through no fault of his, hindered from appearing in court (S. 267 para. 3).   If the request for rehearing is granted, normal trial proceedings are instituted against the convicted person and a new judgment is passed (S. 267 para. 4).   In the absence of a request for rehearing or dismissal of such a request, the judgment passed in the accused's absence becomes final (S. 267 para. 5).   COMPLAINTS         The applicant complains under Article 6 paras. 1 and 2 of the Convention that, in the proceedings resulting in his conviction by the Basel-Stadt Criminal Court of 3 October 1990, he did not have a hearing by an impartial court.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 5 December 1990 and registered on 7 January 1991.         On 13 October 1993 the Commission decided to communicate the application to the respondent Government for observations on admissibility and merits.         On 7 January 1994, the Government submitted their observations. The observations in reply by the applicant were submitted on 8 March 1994.         On 17 May 1994, the Commission decided not to grant legal aid to the applicant.   THE LAW         The applicant complains under Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention that, in the proceedings resulting in his conviction by the Basel-Stadt Criminal Court of 3 October 1990, he did not have a hearing by an impartial court.         Article 6 paras. 1 and 2 (Art. 6-1, 6-2), as far as relevant, provides as follows:         1.    "In the determination ... of any criminal charge against       him, everyone is entitled to a fair and public hearing ... by an       independent and impartial tribunal established by law ...;         2.    Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The respondent Government, referring to the case-law of the Convention organs, compare the present case with the Ringeisen case in particular (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13).   They submit that the Basel-Stadt Criminal Court, following the applicant's request for a rehearing of his case, was merely called upon to conduct the hearing in the presence of the applicant in order fully to secure him the rights of the defence.   The Government maintain that the criminal court, when passing a conviction in the accused's absence, has a view of the case different from the view it has when conviction is passed in his presence.   In this respect, they refer to the record of the applicant's trial before the Basel-Stadt Criminal Court between 26 September and 3 October 1990.   They consider that there was nothing to indicate that the judges, who had first passed the applicant's conviction in his absence, had lost their impartiality when they decided again on the charges against him.   Rather, in such cases, the trial starts again from the very beginning and the accused's presence at the hearing can show new aspects.         The applicant considers that the outcome of the proceedings upon the rehearing in the accused's presence should be fully open.   However, judges, who had passed a conviction in the accused's absence, but in full knowledge of all material, could not be regarded as impartial when sitting on the rehearing of the same case.   He submits that the main question in the criminal proceedings against him was the legal qualification of the facts which he had admitted, a question already determined by the judges at the trial in his absence.         The Commission finds that the applicant's complaint under Article 6 (Art. 6) of the Convention raises difficult questions of fact and of law which require an examination of the merits.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                (C.A. NØRGAARD)