CEDH · CASELAW;REPORTS;ENG — 11 avril 1996

.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. 19800/92                                R. M. D.                                 against                               Switzerland                        REPORT OF THE COMMISSION                     (adopted on 11 April 1996)                            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. 16-33) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-32). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (para. 33). . . . . . . . . . . . . . . . . . . . .5     III. OPINION OF THE COMMISSION      (paras. 34-48) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 34). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 35). . . . . . . . . . . . . . . . . . . . .6        C.    Article 5 para. 4 of the Convention           (paras. 36-47). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 48). . . . . . . . . . . . . . . . . . . . .7     APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .8     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 is a Swiss citizen, born in 1965 and resident in Benglen in Switzerland.   He is represented before the Commission by Mr. Bruno Häfliger, a lawyer practising in Lucerne.   3.    The application is directed against Switzerland.   The respondent Government are represented by Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.   4.    The case relates to the applicant's detention on remand in various Swiss Cantons.   When he filed appeals against his detention, the courts concerned repeatedly found that the appeal had become obsolete as he had meanwhile been moved to another Canton.   The applicant complains under Article 5 para. 4 of the Convention that the courts concerned refused to deal with his appeals.     B.    The proceedings   5.    The application was introduced on 26 March 1992 and registered on 6 April 1992.   6.    On 17 January 1995 the Commission (Second Chamber) 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 28 April 1995 after an extension of the time-limit fixed for this purpose.   The applicant replied on 16 May 1995.   8.    On 18 October 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 6 November 1995 and they were invited to submit such further information or observations on the merits as they wished. However, no further submissions were made.   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:             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   12.   The text of this Report was adopted on 11 April 1996 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.   The Commission's decision on the admissibility of the application is annexed hereto.   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.    The particular circumstances of the case   16.   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.   17.   On 15 January 1992 the applicant requested his immediate release from custody.   On 17 January 1992 the jurisdiction of the Canton of Zurich in respect of the applicant's detention on remand ended (aus der Untersuchungshaft entlassen); on the same day, he was transferred to the Canton of Lucerne where, still on 17 January 1992, the District Governor (Amtsstatthalter) of Willisau ordered his detention on remand.   18.   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.   19.   On 21 January 1992 the District Governor of Willisau confirmed in writing that the applicant had been transferred to Aarwangen.   20.   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.   21.   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.   22.   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.   23.   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 no longer detained in Lucerne; it had therefore to be assumed that the detention order of 17 January 1992 had become obsolete (dahingefallen).   24.   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.   25.   On 3 February 1992 the applicant was transferred from the Canton of Glarus to the Canton of St. Gallen.   26.   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 appeal proceedings, either because the accused is      released or because 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 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."   27.   Insofar as the applicant complained that the authorities, by conducting a sort of collection-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").   28.   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.   29.   On 21 February 1992 the applicant was transferred from the Canton of St. Gallen to the Canton of Schwyz where he continued to be detained on remand.   30.   His request for release from detention in the Canton of Schwyz of 24 February 1992 was rejected on 25 February 1992.   31.   On 25 February 1992 the applicant was taken from the Canton of Schwyz to the Canton of Zurich.   32.   On 3 March 1992 the applicant was transferred to the Canton of Aargau.   Subsequently, he was taken back to the Canton of Zurich.   He was released from detention on 13 March 1992.   B.    Relevant domestic law   33.   According to Section 64 para. 3 of the Swiss Federal Constitution (Bundesverfassung). "the organisation of the courts, the judicial procedure and the jurisdiction falls ... to the Cantons" ("die Organisation der Gerichte, das gerichtliche Verfahren und die Rechtsprechung verbleiben ... den Kantonen").   Accordingly, each Canton continues to apply its own Code of Criminal Procedure (Strafprozessordnung).     III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   34.   The Commission has declared admissible the applicant's complaint that the courts concerned did not deal with his appeal against his detention on remand.     B.    Point at issue   35.   The point at issue is whether there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.     C.    Article 5 para. 4 (Art. 5-4) of the Convention   36.   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. According to the applicant, he was never formally released from detention in the Canton of Lucerne.   This collection-procedure   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."   37.   The respondent Government recall that each Canton has its own Code of Criminal Procedure, and that the powers of the Swiss courts generally comply with the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.   38.   According to the Convention organs' case-law, it must be determined in the light of the circumstances of each case whether a person's right under Article 5 para. 4 (Art. 5-4) of the Convention to a speedy decision by a court on the lawfulness of his detention has been complied with (see Eur. Court H.R., Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 20, para. 55).   39.   In the present case, the Willisau District Governor ordered the applicant's detention on 17 January 1992.   Against the detention order the applicant filed an appeal on 23 January 1992 with the Court of Appeal of the Canton of Lucerne.   However, on 27 January 1992 the Court of Appeal struck the appeal off its list of cases as the applicant had meanwhile been transferred to the Canton of Berne and was therefore no longer detained in the Canton of Lucerne.   Upon the applicant's public law appeal, this decision was upheld by the Federal Court on 12 February 1992.   40.   In these proceedings, the applicant was not, therefore, able to obtain a decision on the lawfulness of his detention on remand.   41.   Subsequently, the applicant remained in detention, albeit in six different Cantons.   Thus, from the Canton of Berne he was transferred on 24 January 1992 to the Canton of Glarus.   On 3 February 1992 he was transferred to the Canton of St. Gallen.   On 21 February 1992 the applicant was transferred to the Canton of Schwyz.   On 25 February 1992 he was transferred to the Canton of Zurich.   On 3 March 1992 he was transferred to the Canton of Aargau.   Subsequently, the applicant was again returned to the Canton of Zurich where on 13 March 1992 he was released from detention.   42.   The Commission recalls that if the applicant, after his transfer to another Canton, had filed a complaint about his detention on remand, he could reasonably have expected that the domestic authorities would again have dismissed his appeal on the ground that he had meanwhile been transferred to another Canton.   In the Commission's opinion, the applicant could not be expected to file further appeals in other Cantons, and the application could not, therefore, be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention (see below, page 13).   43.   According to the Convention organs' case-law, the Convention is intended to guarantee, not rights that are theoretical or illusory, but rights that are practical and effective (see Eur. Court H.R., Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33).   44.   In the present case, it is not disputed that the applicant had the possibility in each Canton to file a request to be released from detention.   However, his right to obtain a speedy decision on the lawfulness of his detention within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention remained illusory in view of the domestic courts' case-law according to which a request for release from detention is struck off the list of cases once the applicant is no longer within the jurisdiction of the particular Canton.   45.   It is true that this situation arises on account of the federal structure of the Swiss Confederation which, as the Government have pointed out, implies, inter alia, that each Canton has its own Code of Criminal Procedure.   46.   In the Commission's opinion, however, these circumstances cannot justify the applicant being deprived of his rights under Article 5 para. 4 (Art. 5-4) of the Convention.   Indeed, it is for the State to discharge the obligations which it has contracted under the Convention. Thus, if the authorities concerned find it necessary continuously to transfer the applicant during his detention from one Canton to another, it is for the State to set up its judicial system so as to enable the courts to comply with the requirements under Article 5 para. 4 (Art. 5-4) of the Convention (see, mutatis mutandis, Eur. Court H.R., Martins Moreira v. Portugal judgment of 26 October 1988, Series A no. 143, p. 21, para. 60).   47.   The applicant was, therefore, deprived of his right to take proceedings by which the lawfulness of his detention was decided by a court within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention.          CONCLUSION   48.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.     Secretary to the Second Chamber        President of the Second Chamber           (M.-T. SCHOEPFER)                         (H. DANELIUS)