CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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 11 January 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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:   -      its decision of 12 January 1994 rejecting part of the       application;   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       31 March 1994 and the observations in reply submitted by the       applicant on 19 August 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, a citizen of the United States born in 1945 and residing since 1972 in Zurich, is a certified public accountant and tax consultant (Steuerberater und Bücherexperte) 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 an 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 questioned by the Cantonal Police.         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.         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.   The Court of Appeal noted that on 28 September 1983, the day before the applicant made the investment, M.P. had visited the applicant in his office in Zurich, but the applicant neither discussed the project with M.P., nor informed him of the imminent investment.   If the applicant had really received from R.P. the instruction to make the investment, it was improbable that he would not have discussed the project at all with M.P.   Also the fact that the applicant, rather than using the accounts of the Trust in the first place, took a loan and pledged the Trust's accounts as security and that he withheld account sheets of the J.B. bank from M.P, confirmed that he had made the investment without M.P.'s consent. Furthermore, the applicant's initial statements were also in accordance with a note he had written in English on 7 February 1985, and which reads as follows:         "Prior to September 29, 1983 R.P. was requested by M.P. to visit       him in Mexico in order to present the S.A. project.   R.P.       reported to me after his return from Mexico that M.P. thought it       was a very good project. - In addition R.P. reported that one of       M.P.'s sons was most excited about the project and that he       indicated a desire to acquire the property individually or       jointly with some friends and associates.   It was felt by me that       inspite of this considerable interest a more conservative       approach would be as lender to the project with a guaranteed       return substantially above the Eurodollar interest rate allowing       for as well a conversion to equity in the project at a later date       should it be so desired."         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 accept his version of the events.         The Court of Appeal also dismissed the applicant's request for hearing R.P. as witness and gave the following reasons:         "It is superfluous to hear R.P. as witness.   If R.P. would simply       confirm what the accused had stated at the beginning of the       investigations, the statements of the witness could in no way       exonerate the accused.   If, however, the witness would confirm       the later version of the events given by the applicant, his       statements could not be considered as relevant evidence.   Such       statements would indeed be wholly incredible as the applicant       would have had the strongest interest in giving this account of       the events himself and from the very beginning.   A statement of       R.P., confirming the later version of the events given by the       applicant must be considered as a testimony given merely as a       favour (Gefälligkeitsaussage) and, possibly, as a justification       for the witness himself, who had received the amount of 200,000       US$ in connection with land purchase at issue."         On 26 May 1989 the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) with the Zurich Court of Cassation (Kassationsgericht).   The applicant submitted, inter alia, that the Court of Appeal had refused to hear R.P. as witness although he had repeatedly requested such a hearing.   The Court of Appeal had refused this request with arguments based on an anticipated assessment of evidence.         On 1 October 1990 the Court of Cassation dismissed the applicant's plea of nullity.   The Court of Cassation found that an anticipated assessment of evidence was admissible in cases where, even if the envisaged evidence were adduced, the evidence could not influence the result of the evidence.   Therefore, the Court of Appeal correctly refused to hear R.P. as witness.         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 had been 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.         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 Court of Cassation's arguments were wrong, therefore the Federal Court could not deal with this complaint.   COMPLAINTS         The applicant's remaining complaint under Article 6 para. 1 and 3 (d) of the Convention concerns the Court of Appeal's refusal to hear R.P. as witness for the defence.   He considers that the Court of Appeal relied on considerations which amounted to an anticipated assessment of evidence.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 13 September 1991 and registered on 17 October 1991.         On 12 January 1994 the Commission's decided to communicate the applicant's complaint under Article 6 para. 1 of the Convention as regards the Court of Appeal's refusal to hear R.P. as a witness for the defence and declared inadmissible the remainder of the application.         On 31 March 1994 the respondent Government submitted their observations and on 19 August 1994, after extension of the time limit, the applicant submitted his observations in reply.   THE LAW   1.     The applicant complains 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.         Article 6 para. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, as far as relevant, reads as follows:         "(1) 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. ..."         "(3) Everyone charged with a criminal offence has the following       minimum rights:         (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 submit that the applicant failed to exhaust domestic remedies because the Federal Court rejected his public law appeal insofar he complained about the refusal to hear R.P. as witness. The Federal Court found that the applicant had failed to substantiate why the considerations of the Court of Cassation that an anticipated assessment of evidence had been lawful in the present case were wrong and, thus, had not complied with procedural requirements in this respect.   Moreover, the applicant relied for the first time in his application to the Commission on Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, while in the domestic proceedings he had only invoked Article 4 of the Federal Constitution, which guarantees a right to be heard including a prohibition of denial of justice and of arbitrary decisions, and had complained of an unlawful interference with his right to defence.         The applicant submits that both in his plea of nullity before the Zurich Court of Cassation and in the public law appeal before the Federal Court he had complained that the refusal to hear R.P. as witness was unlawful.   In particular, in his public law appeal to the Federal Court he had complained under Article 4 of the Federal Constitution that the refusal to hear R.P. as witness constituted an unlawful anticipated assessment of evidence and thus a denial of a fair hearing.   The Federal Court dealt with this complaint and came to the conclusion that the Court of Cassation had dealt sufficiently with this issue so that there was no violation of Article 4 of the Federal Constitution.   In complaining about a violation of his right to a fair hearing (Gewährung rechtlichen Gehörs) guaranteed by Article 4 of the Federal Constitution he had invoked the guarantees enshrined in Article 6 para. 3 (d) and Article 6 para. 1 (Art. 6-3-d, 6-1) of the Convention.         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, and within a period of six months form the date on which the final decision was taken.         The Commission recalls that domestic remedies within the meaning of Article 26 (Art. 26) of the Convention have been exhausted if, before the highest domestic body, the applicant has submitted in substance his complaint before the Commission, even without particular reference to the Convention (No. 7299/75 and 7496/76, Dec. 4.12.79, D.R. 18 p. 5; No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63).   There is no exhaustion when a domestic appeal is not admitted because of a procedural mistake (No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79; No. 10107/82, Dec. 12.7.84, D.R. 38 p. 90).         The Commission notes that, in his plea of nullity to the Court of Cassation of 26 May 1989, the applicant complained unsuccessfully about the Court of Appeal's refusal to hear R.P. as witness.   On 21 November 1990 he lodged a plea of nullity with the Federal Court in which he reiterated this complaint and invoked Article 4 of the Federal Constitution.   On 7 March 1991 the Federal Court rejected this part of the applicant's public law appeal as it found that the Court of Cassation had given sufficient reasons why it had not been necessary to hear R.P. as a witness in the proceedings, and that the applicant had not shown why the Court of Cassation's arguments were wrong.         In these circumstances, the applicant had complained in substance before the Federal Court, relying on Article 4 of the Federal Constitution, about the refusal to hear R.P. as witness.   The Federal Court rejected this complaint, but in concluding that the applicant had failed to show that the Court of Cassation's reasoning regarding the refusal to hear R.P. as witness were wrong the Federal Court in fact endorsed the findings of the Court of Cassation.         The Commission therefore considers that the applicant has exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   3.     The Government submit further that in deciding whether a request for evidence should be granted or not, domestic courts have a wider margin of appreciation as regards witnesses for the defence.   Only under exceptional circumstances the refusal to hear such a witness would violate the Convention, e.g. when the domestic court failed to give any reasons why it considered a witness irrelevant to the proceedings.   In its judgment of 8 March 1989 the Court of Appeal gave sufficient reasons why it found that the hearing of R.P. as witness was irrelevant for the proceedings.   In arriving at this conclusion the Court of Appeal took in particular into account that the applicant initially admitted not having any instruction by M.P. to use the trust's funds for the investment at issue, which was also corroborated by a note the applicant had written on 7 February 1985.   Furthermore, though M.P. had visited the applicant on the day before the investment was made, the project was not discussed by them.   If the applicant had really received from R.P. the instruction to make the investment, it was improbable that he would not have discussed the project and the details of the investment with M.P.   The Court of Appeal concluded that under such circumstances evidence of R.P., confirming the applicant's subsequent allegation that he had made the investment at issue on the instruction by M.P., would be implausible and, thus, irrelevant to the proceedings.   The Court of Appeal's refusal to hear R.P. as a witness thus did not violate Article 6 para. 1 and 6 para. 3 (d) (Art. 6-1, 6-3-d) of the Convention.         The applicant submits that in the criminal proceedings against him the outcome of the meeting between M.P. and R.P. in Mexico was of decisive importance.   However, of the two persons who attended the meeting only one, M.P., was heard by the Court of Appeal as a witness for the prosecution.   This witness had a vested interest as he was the injured party and was, as the Court of Appeal acknowledged, not a person beyond all doubt.   The applicant could not refute his statements, as he had not been present at the meeting.   Moreover, the arguments on which the Court of Appeal based its refusal to hear R.P. as witness only relate to circumstantial evidence.   If the witness for the defence would have corroborated the applicant's version of the events, the circumstantial evidence would no longer have been sufficient to prove his guilt.   The court's refusal to hear R.P. as witness for the defence therefore violated Article 6 (Art. 6) of the Convention.         The Commission recalls that the guarantees contained in paragraph 3 of Article 6 (Art. 6-3) 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 (d) of Article 6 (Art. 6-3-d) (see Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).         As a general rule it is for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 68).   Article 6 para. 3 (Art. 6-3) of the Convention does not give the accused an unlimited right to have witnesses called (No. 8417/78, Dec. 4.5.79, D.R. 15 p. 200).   Domestic Courts may thus exercise some discretion, provided that the Convention and particularly the right to a fair hearing are respected in deciding whether the hearing of a defence witness is likely to help to establish the truth (No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5).         With regard to the hearing of witnesses, a distinction should be made between witnesses against and witnesses on behalf of the accused. In respect of the former, an accused should, as a rule, be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage.   In respect of the witnesses on behalf of the accused, only exceptional circumstances could lead the Convention organs to conclude that a refusal to hear such witnesses violated Article 6 (Art. 6) of the Convention (see Vidal v. Belgium, Comm. Report 14.1.91, Series A no. 235-B, pp. 38-39, paras. 47-49; Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).   Thus, the complete silence in a judgment as to why the court rejected the hearing of a witness for the defence is not consistent with the concept of a fair trial which is the basis of Article 6 (Art. 6) of the Convention (see Eur. Court H.R., Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, paras. 33-34).         In the present case the Court of Appeal, in its judgment of 8 March 1989, indicated in detail the reasons why it did not consider it necessary to hear this witness.   The Court of Appeal found that his statements would be irrelevant to the case, as the witness could either confirm the version of the events which had, in the meantime, been corroborated by various further evidence, or make statements in order to protect the applicant and himself which in view of the results of the other evidence would be implausible from the outset.         While the above reasoning of the Court of Appeal by which it expressed an opinion on the credibility of a witness without having heard him is open to criticism, the Commission, having regard to the context in which this statement was made and the particular circumstances of the case, finds that the Court of Appeal sufficiently explained why it considered the statements of this witness as irrelevant to the proceedings.   There are no indications that the Court of Appeal rejected the applicant's request in an arbitrary or unfair manner.         In these circumstances the Commission finds that there is no appearance of a violation of the applicant's right to a fair hearing.         The application, therefore, is 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 THE REMAINDER OF THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)