CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 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. 19800/92                       by R. M. D.                       against Switzerland         The European Commission of Human Rights (Second Chamber) sitting in private on 18 October 1995, the following members being present:              MM.    H. DANELIUS, President                  S. TRECHSEL            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, 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 26 March 1992 by R. M. D. against Switzerland and registered on 6 April 1992 under file No. 19800/92;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       28 April 1995 and the observations in reply submitted by the       applicant on 16 May 1995;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant, a Swiss citizen born in 1965, resides in Benglen in Switzerland.   Before the Commission he is represented by Mr. Bruno Häfliger, a lawyer practising in Lucerne.         In January 1992 the Lucerne Cantonal Police (Kantonspolizei) requested the Zurich Cantonal Police to arrest the applicant who was suspected of having committed a burglary in the Canton of Lucerne.   On 13 January 1992 the Zurich Cantonal Police arrested the applicant and remanded him in custody in Uster in the Canton of Zurich.   It appears that the applicant was suspected of having committed thefts and other offences in the Cantons of Zurich, Lucerne, Bern and Aargau.         On 15 January 1992 the applicant requested his immediate release from custody.   He was released from Uster prison on 17 January 1992.         On the same day the applicant was transferred to the Canton of Lucerne where, still on 17 January 1992, the District Governor (Amtsstatthalter) ordered his detention on remand.         On 20 January 1992 the applicant's lawyer telephoned the Willisau District Prosecutor and requested that he, the lawyer, be appointed as defence counsel and permitted to see the applicant on 21 January 1992. The District Prosecutor replied that the applicant would be transferred on 21 January 1992 to the District Court (Richteramt) of Aarwangen in the Canton of Bern for further investigations.         On 21 January 1992 the District Governor of Willisau confirmed in writing that the applicant had been transferred to Aarwangen.         The applicant's lawyer intended to contest the decision to detain the applicant in Aarwangen.   However, he was told by the Aarwangen investigating judge on the telephone that the latter had not himself issued a detention order as the order issued on 17 January 1992 by the Willisau District Governor was still valid.         On 23 January 1992 the applicant filed an appeal (Rekurs) with the Court of Appeal (Obergericht) of the Canton of Lucerne against the detention order of 17 January 1992.         On 24 January 1992 the applicant was transferred to the Canton of Glarus as the Glarus investigating judge (Verhörrichter) wished to question the applicant about a burglary in Glarus.   On the same day the Glarus investigating judge issued a detention order.         On 27 January 1992 the Lucerne Court of Appeal struck the appeal of 23 January 1992 off its list of cases as the applicant had been transferred to Aarwangen on 21 January 1992 and was therefore no longer detained in Lucerne; it had therefore to be assumed that the detention order of 17 January 1992 had become obsolete (dahingefallen).         On 31 January 1992 the applicant filed a public law appeal (staatsrechtliche Beschwerde) against the decision of the Court of Appeal of 27 January 1992.         On 3 February 1992 the applicant was transferred from the Canton of Glarus to the Canton of St. Gallen where he was detained on remand on suspicion of having committed burglary in the Canton of Glarus.         On 12 February 1992 the Federal Court (Bundesgericht) dismissed the applicant's public law appeal.   The decision stated inter alia:   <Translation>              "The view can reasonably be maintained that the Court of       Appeal no longer need consider the merits of an appeal against       a detention order if the detention in the Canton of Lucerne ends       during the pending appeal proceedings, either as the accused is       released or as he is detained in another Canton and the detention       on remand in the Canton of Lucerne becomes obsolete.   The Federal       Court has proceeded in a similar manner.   Thus, disregarding       exceptional cases, (the Federal Court) will regard as obsolete       and strike off its list an appeal against detention if the       applicant has been released during the pending Federal Court       proceedings ...   The explanation for this case-law lies in the       fact that in such a case there is no longer a present practical       interest in a decision on the appeal against detention, not even       in respect of any claims for compensation and satisfaction ...       These considerations may also be applied to cantonal appeal       proceedings.   The applicant can still maintain in any subsequent       compensation proceedings that he was unlawfully arrested in the       Canton of Lucerne."   <German>              "Es lässt sich mit sachlichen Gründen die Ansicht       vertreten, das Obergericht müsse einen Haftrekurs nicht mehr       materiell behandeln, wenn die Haft im Kanton Luzern während der       Hängigkeit des Rekursverfahrens beendet wird, sei es durch       Freilassung des Angeschuldigten oder durch dessen Inhaftierung       in einem anderen Kanton, mit welcher die Untersuchungshaft im       Kanton Luzern dahinfällt.   Das Bundesgericht geht in analoger       Weise vor, schreibt es doch -   abgesehen von Ausnahmefällen -       eine Haftbeschwerde als gegenstandslos geworden ab, wenn der       Beschwerdeführer während der Hängigkeit des bundesgerichtlichen       Verfahrens aus der Haft entlassen wird ... Es begründet diese       Rechtsprechung damit, es bestehe in einem solchen Fall kein       aktuelles praktisches Interesse mehr an der Behandlung der       Haftbeschwerde, und zwar auch nicht im Hinblick auf die       Geltendmachung von Schadenersatz- und Genugtuungsansprüchen ...       Diese Überlegung lässt sich auch auf ein kantonales       Rekursverfahren übertragen.   Der Beschwerdeführer kann noch in       einem allfälligen Entschädigungsverfahren geltend machen, er sei       im Kanton Luzern zu Unrecht verhaftet worden."         Insofar as the applicant complained that the authorities, by conducting a sort of joint procedure (Sammelverfahren), deprived him of his constitutional and Convention rights, the Court found that it would have been preferable if the Willisau District Prosecutor had declared in writing that the applicant was no longer detained in the Canton of Lucerne.   However, this could not change the conclusion that the contested decision of the Lucerne Court of Appeal raised no issue under Article 5 para. 4 of the Convention, "as the applicant already when filing his appeal was no longer remanded in custody in the Canton of Lucerne" ("weil sich der Beschwerdeführer bereits bei Einreichung des Rekurses nicht mehr im Kanton Luzern in Untersuchungshaft befand").         Finally, the Court declared inadmissible the applicant's complaint that he had not been officially represented by a lawyer, as this matter had not been the subject of the appeal proceedings before the Court of Appeal.         On 21 February 1992 the applicant was transferred from the Canton of St. Gallen to the Canton of Schwyz where he was detained on remand.         His request for release from detention in the Canton of Schwyz of 24 February 1992 was rejected on 25 February 1992.         On 25 February 1992 the applicant was transferred from the Canton of Schwyz to the Canton of Zurich.         On 3 March 1992 the applicant was transferred to the Canton of Aargau where he was detained on remand.   Subsequently, he was transferred to the Canton of Zurich.   He was released from detention on 13 March 1992.   COMPLAINTS         The applicant complains under Article 5 para. 4 of the Convention that the Lucerne Court of Appeal and the Federal Court did not deal with his appeal against his detention on remand, as he was no longer detained in the Canton of Lucerne.   This joint procedure (Sammelverfahren), which moves the applicant from one Canton to another, deprives him of his rights.   The applicant points out that he was never formally released from detention in the Canton of Lucerne.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 26 March 1992 and registered on 6 April 1992.         On 17 January 1995 the Commission (Second Chamber) decided to communicate the application to the respondent Government and invite them   to submit observations on the admissibility and merits of the application.         The Government's written observations were submitted on 28 April 1995.   The applicant replied on 16 May 1995.   THE LAW   1.     The applicant complains that the Lucerne Court of Appeal and the Federal Court did not deal with his appeal against his detention on remand, as he was no longer detained in the Canton of Lucerne.   He also submits that he was never formally released from detention in the Canton of Lucerne.   This joint procedure (Sammelverfahren), which moves the applicant from one Canton to another, deprives him of his rights under Article 5 para. 4 (Art. 5-4) of the Convention which states:         "Everyone who is deprived of his liberty by arrest or detention       shall be entitled to take proceedings by which the lawfulness of       his detention shall be decided speedily by a court and his       release ordered if the detention is not lawful."   2.     The Government contest that the applicant has complied with the requirements of Article 26 (Art. 26) of the Convention.         The Government recall at the outset that each Canton has its own Code of criminal procedure.   In general, the powers of the Swiss courts comply with the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.         The Government further note that the present applicant is in fact complaining, on the one hand, of the proceedings as a whole; and, on the other, that the Court of Appeal of the Canton of Lucerne and the Federal Court did not deal with his complaint.         As regards the applicant's complaints about the proceedings as a whole, the Government point out that in his public law appeal before the Federal Court he only complained about detention in the Canton of Lucerne, not of the detention in the Cantons of Zurich, Bern and Glarus where procedures compatible with Article 5 para. 4 (Art. 5-4) of the Convention would have been at his disposal.         As regards detention in the Canton of Lucerne the Government refer to the Federal Court's decision of 12 February 1992 according to which the applicant was free to institute compensation proceedings for his unlawful detention.   However, he failed to do so.   Such proceedings would not have been in conflict with the requirements of Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention.   In particular, the court concerned could have examined the legality of his detention.         The applicant generally contests the Government's submissions. The State as a whole must ensure as a party to the Convention that the Convention provisions can be complied with on the whole territory of Switzerland.         The Commission recalls its case-law under Article 26 (Art. 26) of the Convention according to which Article 26 (Art. 26) of the Convention requires the exhaustion of those remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress (see No. 13057/87, dec. 15.3.89, D.R. 60 p. 243).         In the present case the Commission notes that in the domestic proceedings the applicant complained before the Lucerne Court of Appeal and the Federal Court about his detention on remand in the Canton of Lucerne; he also complained about the joint procedure which deprived him of his constitutional and Convention rights.   On 12 February 1992 the Federal Court in last resort nevertheless dismissed his complaint as he was no longer detained in the Canton of Lucerne.         Before the Commission the applicant is now complaining under Article 5 para. 4 (Art. 5-4) of the Convention that the Lucerne Court of Appeal and the Federal Court did not deal with his appeal against his detention on remand, as he was no longer detained in the Canton of Lucerne.         In the Commission's opinion, there being no further domestic remedy available against the Federal Court's decision, the applicant is entitled to complain before the Commission about the decision of the Federal Court.         It is true that in the Government's submissions, the applicant should subsequently also have filed further complaints in other Cantons.   In the Commission's opinion, however, had the applicant, after his transfer to another Canton, again filed a complaint about detention on remand, he could reasonably expect that the Federal Court would again have dismissed his appeal on the ground that he had again been transferred to another Canton.   The applicant could not, therefore, be expected to file further appeals in other Cantons.         The Government also submit that the applicant could have introduced an action for compensation before the courts of the Canton of Lucerne.   The Commission notes, however, that the applicant, when filing his appeal with the Court of Appeal of the Canton of Lucerne and the Federal Court, was requesting his release from detention.   It is not in dispute that, had these appeals been successful, the applicant would have been released from detention on remand.   The Commission finds therefore that the applicant could not be expected to file yet a further action, now for compensation.   Furthermore, an action for compensation could only be an effective remedy in a case where the alleged violation did in fact cause some material damage to the person concerned.   However, in the present case it does not transpire that the applicant suffered any pecuniary disadvantages on account of the absence of a remedy under Article 5 para. 4 (Art. 5-4) of the Convention.         The application cannot therefore be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   3.     The Commission, having examined these complaints, finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                       (H. DANELIUS)