CEDH · CASELAW;REPORTS;ENG — 24 mai 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                           SECOND CHAMBER                      Application No. 18905/91                                R. B.                                 against                             Switzerland                      REPORT OF THE COMMISSION                      (adopted on 24 May 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1 - 15). . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2 - 4). . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5 - 10) . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11 - 15). . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16 - 38) . . . . . . . . . . . . . . . . . . . .3        A.    Investigations against the applicant           (paras. 16 - 22). . . . . . . . . . . . . . . . . .3        B.    Proceedings before the Uri Regional Court           (paras. 23 - 24). . . . . . . . . . . . . . . . . .3        C.    Proceedings before the Court of Appeal of the Canton of Uri           (paras. 25 - 27). . . . . . . . . . . . . . . . . .4        D.    Proceedings before the Federal Court           (paras. 28 - 31). . . . . . . . . . . . . . . . . .4        E.    Proceedings before the Court of Appeal of the Canton of Uri           (paras. 32 -33) . . . . . . . . . . . . . . . . . .4        F.    Proceedings before the Federal Court           (paras. 34 - 36). . . . . . . . . . . . . . . . . .5        G.    Applicant's plea for pardon           (paras. 37 - 38). . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 39 - 61) . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 39). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 40). . . . . . . . . . . . . . . . . . . . .6        C.    Alleged violation of Article 6 para. 1 of the Convention           (paras. 41 - 60). . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 61). . . . . . . . . . . . . . . . . . . . .8     APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . .9   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 10   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant, a Swiss citizen born in 1944, resides at Gunzwil in Switzerland.   3.    The application is directed against Switzerland.   The respondent Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice.   4.    The case concerns the applicant's complaint under Article 6 para. 1 of the Convention about the length of criminal proceedings.   B.    The proceedings   5.    The application was introduced on 1 February 1991 and registered on 4 October 1991.   6.    On 31 March 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 17 June 1993. The applicant replied on 28 August 1993.   8.    On 30 November 1994 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent on 14 December 1994 to the parties who were invited to submit further observations.   The Government's observations were submitted on 7 February 1995, and the applicant submitted his observations on 11 February 1995.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mr.   H. DANELIUS, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                S. TRECHSEL                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY   12.   The text of this Report was adopted on 24 May 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    Investigations against the applicant   16.   In 1977/78 various companies, which the three S. brothers had founded in the Canton of Uri, merged with two building firms in the Canton of Lucerne.   The applicant was one of the board members.   17.   In February 1981 the Investigating Office (Verhöramt) of the Canton of Uri instituted criminal investigations against certain persons of the companies in the Canton of Uri.   The investigations were extended to all companies and the persons involved, eventually also to the companies in the Canton of Lucerne.   Eventually, the investigations were conducted against 14 persons, concerning 20 companies.   18.   Investigations concerning the applicant commenced on 17 February 1982.   On 1 March 1982 he was arrested, remanded in custody and questioned as to various offences; he was released the next day.   19.   The applicant was subsequently heard on various occasions.   When questioned on 15 February 1984 he was advised to employ a lawyer.   On 16 May 1984 the investigating judge ordered him to obtain legal representation.   As from 25 May 1984 he was represented by a lawyer. Until the end of 1984 the lawyer was given different parts of the case- file for consultation as a result of which he submitted various replies as well as requests for the taking of evidence.     20.   As a result of the investigations against the various co-accused a voluminous case-file was prepared.   The list of the case-file numbered 203 pages and mentioned 3.740 documents, compiled in 20 files. These documents were the extract of altogether 2.000 files occupying shelf space of approximately 150 metres.   21.   On 25 April 1985 the Investigating Office prepared its final Report, counting 300 pages and divided into seven chapters and 72 sub- chapters.   The applicant figured as an accused in ten sub-chapters; one sub-chapter under the heading "defence rights" contained 33 documents relating to the applicant.   22.   On 21 March 1986 the Uri Public Prosecutor's Office (Staatsan- waltschaft) indicted altogether 14 persons, among them the applicant who was charged with various economic offences committed in 1976 and 1977.   The bill of indictment counted altogether 166 pages.   The Public Prosecutor's Office terminated the proceedings in respect of 21 charges, six of them concerning the applicant.   B.    Proceedings before the Uri Regional Court   23.   On 12 March 1987 the Uri Regional Court (Landgericht) gave its judgment, numbering 136 pages, in respect of the 14 co-accused.   The judgment was served on the applicant on 24 July 1987.   24.   In its judgment the Court convicted the applicant of repeatedly and continuously forging documents (wiederholte Urkundenfälschung) and of continuously obtaining a false registration (Erschleichung einer falschen Beurkundung).   In one instance, the applicant was acquitted of the offence of fraud and of obtaining a false registration.   In respect of the offence of giving false information about commercial companies the proceedings were terminated on account of prescription. The applicant was sentenced to eighteen months' imprisonment, suspended on probation for three years.   C.    Proceedings before the Court of Appeal of the Canton of Uri   25.   Both the applicant and the Public Prosecutor's Office appealed against this judgment.   26.   In its judgment of 31 May, 15 June and 29 June 1988 the Court of Appeal (Obergericht) of the Canton of Uri rejected the applicant's appeal and partly granted the appeal of the Public Prosecutor's Office. The Court found that the applicant was guilty of fraud, of repeatedly and continuously forging documents, and of continuously obtaining a false registration, and sentenced him to two years' imprisonment.   27.   The judgment of the Court of Appeal was served on the applicant on 21 November 1988.   D.    Proceedings before the Federal Court   28.   On 7 December 1988 the applicant filed with the Federal Court (Bundesgericht) a public law appeal (staatsrechtliche Beschwerde) and a plea of nullity (Nichtigkeitsbeschwerde) in respect of which the Federal Court gave two decisions on 29 March 1990.   29.   In its decision on the applicant's public law appeal, which it rejected, the Court found in respect of the applicant's complaint under Article 6 para. 1 of the Convention of the length of the proceedings that in view of the involvement of over 20 companies and the concomitant volume of files, and of the altogether fourteen indicted persons, the length of proceedings lasting slightly more than seven ears could not be regarded as disproportionate.   30.   The Federal Court also rejected the applicant's plea of nullity insofar as it concerned the grounds leading to his conviction; the plea of nullity was upheld and the case referred back to the Court of Appeal insofar as it concerned the applicant's sentence.   The Court considered that the Court of Appeal, when determining the sentence, had not taken into account that the offences had occurred relatively long ago, and that the applicant's conduct had since been good.   31.   Both decisions were served on the applicant on 19 May 1990.   E.    Proceedings before the Court of Appeal of the Canton of Uri   32.   Proceedings were resumed before the Court of Appeal of the Canton of Uri which on 5 July 1990 sentenced the applicant to 21 months' imprisonment.   The judgment was served on 31 August 1990.   33.   The Court of Appeal noted that the Federal Court, in its judgment of 29 March 1990, had found no breach of Article 6 para. 1 of the Convention in respect of the length of the proceedings.   The Court considered that in its first judgment it had already taken into account the length of the proceedings.   However, following the applicant's successful plea of nullity to the Federal Court, the Court of Appeal found that it had insufficiently considered this ground of reduction; moreover, two more years had elapsed since its first judgment.   F.    Proceedings before the Federal Court   34.   Against this judgment the applicant filed with the Federal Court a plea of nullity on 20 September 1990, and a public law appeal on 27 September 1990 which the Federal Court rejected in two decisions on 29 November 1990.   35.   In its decision on the plea of nullity the Federal Court dismissed the applicant's complaints about the length of his prison sentence.   In its decision on the applicant's public law appeal the Court dismissed his complaints about the proceedings leading to the Court of Appeal's judgment of 5 July 1990.   In respect of his complaint under Article 6 para. 1 of the Convention about the length of the proceedings, the Federal Court found that the grounds mentioned in its decision of 29 March 1990 were not altered by the fact that further time had elapsed while the case was being reconsidered by the Court of Appeal.   36.   Both decisions were served on the applicant 16 August 1991.   G.    Applicant's plea for pardon   37.   On 20 February 1992 the applicant filed an application for pardon (Begnadigungsgesuch).   On 8 April 1992 the Parliament (Landrat) of the Canton of Uri partly granted the application, reducing the sentence to sixteen months' imprisonment.   It took into account the entire length of the proceedings as well as the fact that a further two years had elapsed since the second judgment of the Court of Appeal, but considered that a complete remission of sentence could not be granted, inter alia as the offences which the applicant had committed were not negligible.   38.   The applicant's public law appeal was rejected by the Federal Court on 6 July 1992.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   39.   The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.    Point at issue   40.   The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (art. 6-1) of the Convention.   C.    Alleged violation of Article 6 para. 1 (art. 6-1) of the      Convention   41.   The applicant complains that the criminal proceedings against him were not terminated within a reasonable time.   He relies on Article 6 para. 1 (art. 6-1) of the Convention which includes the following provision:        "In the determination of ... any criminal charge against him,      everyone is entitled to a ... hearing within a reasonable time      by (a) ... tribunal ..."   42.   The Government consider that the proceedings did not attain an unreasonable length.        a)    Period to be considered   43.   The Government submit that the relevant period to be considered under Article 6 para. 1 (art. 6-1) of the Convention started on 1 March 1982 when the applicant was remanded in custody, and ended on 16 August 1991 when the decisions of the Federal Court were served on the applicant.   44.   The applicant submits that from the time when he committed the offences on 11 August 1976 until the serving of the final decision of the Federal Court on 16 August 1991, more than fifteen years elapsed.   45.   The Commission recalls that the period to be taken into consideration under Article 6 para. 1 (art. 6-1) of the Convention begins at the time when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the prosecution authorities as a result of a suspicion against him (cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 50, p. 33, para. 75).   46.   The Commission notes that, in the course of criminal investigations instituted against other persons in 1981, the Investigating Office of the Canton of Uri commenced investigations against the applicant on 17 February 1982, whereupon on 1 March 1982 he was remanded in custody and questioned as to the offences.   The Commission accepts that the period to be examined under Article 6 para. 1 (art. 6-1) of the Convention commenced on 1 March 1982.   47.   The Commission considers that the period ended on 16 August 1991 when the Federal Court's decisions of 29 November 1990 were served on the applicant.   48.   The relevant period therefore lasted nine years, five months and 15 days.        b)    Reasonableness of the length of the period to be considered   49.   The Government recall that the case was extremely complex.   While the applicant was not the principal co-accused, it must be borne in mind that in view of the many issues the investigations had to be conducted against all co-accused.   The final report of the Investigating Office could only be prepared after a detailed examination of the voluminous file.   Between 1987 and 1990 altogether seven court decisions were taken.   50.   The applicant submits that the investigations proved to be too difficult for the authorities.   51.   The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard in particular to the complexity of the case and the conduct of the applicant and the relevant authorities (cf. Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   52.   At the outset, the Commission considers that the main feature of the case was its inordinately complex character.   Thus, the accusations raised against the applicant and other persons concerned white collar crimes, such as forging documents and fraud.   Such offences are often purposely conducted, and were so in this case, by means of complex transactions in order to escape the control of the investigating authorities.   The investigations were eventually extended to 14 persons, concerning 20 companies, and the case-file eventually comprised 2.000 files.   53.   The Commission further considers that the applicant did not unreasonably contribute to the overall length of the criminal proceedings against him.   54.   Next, the Commission has examined the conduct of the Swiss authorities.   55.   The Commission notes that, after the applicant was remanded in custody and questioned on 1 March 1982, the investigations lasted until 25 April 1985, i.e. approximately three years and two months, when the Investigating Office prepared its final Report.   Approximately a further nine months elapsed until the applicant was indicted on 21 March 1986.     56.   While this period appears comparatively long, it is in the Commission's opinion explained by the particular complexity of the case.   Thus, the final Report of the Investigating Office counted 300 pages, the subsequent bill of indictment 166 pages.   57.   The Commission finds that thereafter the authorities conducted the proceedings with relative speed.   Thus, the Uri Regional Court gave its judgment on 12 March 1987, i.e. approximately one year after the applicant's indictment.   Fifteen months elapsed until the Court of Appeal of the Canton of Uri gave its judgment of 31 May, 15 June and 29 June 1988, and a further 23 months until the decisions of the Federal Court of 29 March 1990 were served on 19 May 1990 on the applicant.   58.   Once the Federal Court's judgments had been served on the applicant, the Court of Appeal of the Canton of Uri gave its judgment speedily on 5 July 1990.   A final thirteen months elapsed until the decisions of the Federal Court of 29 November 1990 were served on the applicant on 16 August 1991.   59.   In assessing the length of the proceedings, the Commission has finally considered that the applicant's sentence was reduced from originally 24 months' to 16 months' imprisonment.   Thus, on 5 July 1990 the Court of Appeal of the Canton of Uri reduced the sentence by three months.   On 8 April 1992 the Parliament of the Canton of Uri reduced the sentence by five months, thereby taking into account the length of the criminal proceedings instituted against the applicant.   60.   Having regard to the particular complexity of the case and to the fact that the sentence was reduced inter alia as a result of the length of the proceedings, the Commission finds that there has not been a violation of the requirement of "reasonable time" referred to in Article 6 para. 1 (art. 6-1) of the Convention.        CONCLUSION   61.   The Commission concludes, by 12 votes to 1, that there has been no violation of Article 6 para. 1 (art. 6-1) of the Convention.   Secretary to the Second Chamber        President of the Second Chamber          (M.-T. SCHOEPFER)                       (H. DANELIUS)                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________   1 February 1991           Introduction of application   4 October 1991            Registration of application   Examination of admissibility   31 March 1993             Commission's decision to communicate the                          case to the respondent Government and to                          invite the parties to submit observations                          on admissibility and merits   17 June 1993              Government's observations   28 August 1993            Applicant's observations in reply   30 November 1994          Commission's decision to declare                          application admissible   Examination of the merits   14 December 1994          Decision on admissibility transmitted to                          parties. Invitation to parties to submit                          further observations on the merits   7 February 1995           Government's further observations   11 February 1995          Applicant's further observations   8 April 1995              Commission's consideration of state of                          proceedings   17 May 1995               Commission's deliberations on the merits,                          final vote and consideration of text of                          the Report   24 May 1995               Adoption of Report