CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 septembre 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 }                      AS TO THE ADMISSIBILITY OF                       Application No. 23857/94                     by André PLUMEY                     against Switzerland        The European Commission of Human Rights sitting in private on 9 September 1996, the following members being present:             Mrs. G.H. THUNE, Acting President           Mr.   S. TRECHSEL           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                G.B. REFFI                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ             Mr.   M. de SALVIA, Deputy 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 10 March 1994 by André Plumey against Switzerland and registered on 12 April 1994 under file No. 23857/94;        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      9 April 1996 and the observations in reply submitted by the      applicant on 7 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Swiss citizen born in 1928, is a pensioner residing at Sisseln in Switzerland.   Before the Commission he is represented by Mr. P. Zihlmann, a lawyer practising in Basel.        The facts of the case, as submitted by the parties, may be summarised as follows.        In 1986 the Public Prosecutor's Office (Staatsanwaltschaft) of the Canton of Basel-Stadt instituted criminal proceedings against the applicant who was suspected of having committed various economic offences.   As the applicant was abroad, the First Public Prosecutor (Erster Staatsanwalt) issued an international warrant of arrest on 19 June 1989, whereupon the applicant was arrested in Rio de Janeiro and extradited to Switzerland.        On 4 July 1989, immediately upon his return to Switzerland, the applicant was arrested.   On the same day he was brought before F.H., the Acting Public Prosecutor (Leitender Staatsanwalt) who remanded him in custody (Sicherheitshaft).        The subsequent prolongations of the applicant's detention on remand until 24 October 1990 were ordered, with one exception, by F.H.        On 23 October 1990 the Court handed down its judgment in the case of Huber v. Switzerland (Eur. Court HR, Series A no. 188).        On 26 October 1990 the First Public Prosecutor prolonged the applicant's detention.   Against this decision the applicant filed an appeal, referring to the Court's judgment in the Huber case, in that the First Public Prosecutor had prolonged his detention on remand.        The appeal was dismissed on 8 November 1990 by the Indictment Chamber (Überweisungsbehörde) of the Canton of Basel-Stadt.   The Chamber found inter alia that it was not yet in possession of the Court's judgment in the Huber v. Switzerland case; and that in any event the issue did not arise in proceedings concerning prolongation of detention on remand, though it could become relevant at a later stage of the proceedings.        Against this decision the applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).        On 14 December 1990 the applicant was released on bail from detention on remand.        On 21 December 1990 the Federal Court struck the applicant's public law appeal off its list of cases as the applicant had meanwhile been released from detention.        On 29 November 1991 Acting Public Prosecutor F.H. announced the intention of the Public Prosecutor's Office to indict the applicant inter alia of professional fraud, forging of documents and negligent bankruptcy.   It was also stated that the applicant had a time-limit of 10 days to file a complaint.        On 3 December 1991 the applicant challenged F.H., as he had signed the letter of 29 November 1991, while previously having ordered his detention on remand.   The letter was headed: "Threat of a breach of Article 5 paras. 3 and 4 of the Convention".        In reply to the letter of 3 December 1991, F.H. wrote to the applicant on 4 December 1991 that he himself intended to indict the applicant.        On 7 January 1992 the applicant complained to F.H. that the bill of indictment had still not been prepared, and that further delays could no longer be tolerated.   The letter was headed: "Here: failure to indict".        On 14 July 1992 the applicant was indicted of various economic offences.   The bill of indictment was signed by F.H.        On 21 July 1992 the applicant complained to the President of the Criminal Court (Strafgericht) of the Canton of Basel-Stadt that the indictment breached Article 5 para. 3 of the Convention.   He submitted in particular that F.H. could not represent the prosecution as he had previously ordered prolongation of the applicant's detention on remand.        On 26 January 1993 the President of the Criminal Court dismissed the complaint, inter alia as it was belated.   Thus, the applicant had only on 21 July 1992, during the trial, filed a challenge against the Public Prosecutor concerned. (Erst mit der vorliegenden Eingabe vom 21.7.92 hat der Verteidiger nun im Hauptverfahren sinngemäss ein Ausstandsbegehren gegen den Staatsanwalt gestellt.)   However, he should have filed a complaint after the judgment in the case of Huber v. Switzerland had been pronounced, at the latest after the announcement of 4 December 1991.        The applicant's appeal against this decision was rejected on 9 March 1993 by the Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt which found that the President of the Criminal Court had not been competent to deal with his complaint.   The applicant's public law appeal was rejected on 14 May 1993 by the Federal Court.        The applicant's renewed challenge of Public Prosecutor F.H. was dismissed by the Criminal Court on 24 June 1993.        On 6 August 1993 the Court of Appeal dismissed his further appeal.        In its decision, the Court considered that there had been a breach of Article 5 para. 3 of the Convention in that F.H. had first remanded the applicant in custody and then indicted him.   According to the Federal Court's case-law, such a complaint could be raised upon indictment.   However, the applicant, who had been aware as from 4 December 1991 that F.H. would indict him, had waited over half a year until 21 July 1992 when he had formally challenged F.H.        The applicant filed a public law appeal in which he pointed out inter alia that he had referred to the issue already on 30 October 1990, i.e. immediately after the Court's judgment in the case of Huber v. Switzerland had become known.        The public law appeal was dismissed by the Federal Court on 4 October 1993, the decision being served on 20 October 1993.        In its decision the Court considered that in the present case Article 5 para. 3 of the Convention had "indirectly" (indirekt) been breached, as F.H. had first imposed detention on remand on the applicant and had later prepared the bill of indictment.   The applicant could, therefore, successfully have challenged F.H.   However, the Court recalled its case-law according to which good faith required that a civil servant (Beamter) was challenged as early as possible.   In the present case the Court noted that the applicant had challenged F.H. on 21 July 1992.   Already on 4 December 1991 the applicant had been informed that F.H. would indict him.   Indeed, on 3 December 1991 the applicant had written to the Public Prosecutor's Office and challenged F.H.   However, after the information of 4 December 1991 he failed immediately to file a challenge with the Criminal Court or to react otherwise.   On the contrary, on 7 January 1992 he wrote to F.H. and urged him as soon as possible to prepare the bill of indictment, without challenging F.H.; thus, the applicant had actually accepted F.H. as Public Prosecutor.   It breached good faith, therefore, if the applicant challenged F.H. only half a year later.        The trial commenced on 11 October 1993.   The Prosecution was represented by the First Public Prosecutor.        On 22 December 1993 the Criminal Court of the Canton of Basel- Stadt sentenced the applicant to seven and a half years' imprisonment.   COMPLAINTS        The applicant complains that the Federal Court accepted a breach of Article 5 para. 3 of the Convention, yet incorrectly assumed that he had belatedly invoked this right under this provision.   Thus, he had not acted negligently or against good faith; rather, he had complained well before the trial began on 11 October 1993, for instance following the prolongation of detention on remand on 26 October 1990, on 3 December 1991, and again after the indictment of 14 July 1992.        The applicant points out that the Code of Criminal Procedure of the Canton of Basel-Stadt does not provide for remedies to challenge breaches such as the one at issue.   The position of an investigating judge deciding on the imposition of detention on remand was only introduced on 1 January 1993.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 March 1994 and registered on 12 April 1994.        On 16 January 1996 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 9 April 1996.   The applicant replied on 7 May 1996.        On 3 September 1996 the case was referred to the Plenary Commission.   THE LAW   1.    The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention that Public Prosecutor F.H. remanded him in custody and later indicted him.   He complains that the Federal Court, while accepting a breach of Article 5 para. 3 (Art. 5-3) of the Convention, nevertheless assumed that he had belatedly invoked his right under this provision.        Article 5 para. 3 (Art. 5-3) of the Convention states, insofar as relevant:        "Everyone arrested or detained in accordance with the      provisions of paragraph 1 (c) of this Article shall be      brought promptly before a judge or other officer authorised      by law to exercise judicial power and shall be entitled to      trial within a reasonable time or to release pending trial      ..."   2.    The Government express doubts as to whether the applicant has exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   Thus, when the applicant was brought before the Acting Public Prosecutor F.H. on 4 July 1989, he should immediately have filed a complaint under Article 5 para. 3 (Art. 5-3) of the Convention.   Given F.H.'s position in the Public Prosecutor's Office, the applicant should already then have been aware of the fact that F.H. could later represent the prosecution.   On the other hand, Article 5 para. 3 (Art. 5-3) only concerns the first control of the legality of a person's detention; any subsequent prolongation of detention no longer falls under the guarantees of this provision.        The applicant submits that there was no other procedure in Switzerland available to him to complain about the breach of Article 5 para. 3 (Art. 5-3) of the Convention.   He contends that even today there is disagreement in Switzerland as to how to proceed correctly in case of a violation of Article 5 para. 3 (Art. 5-3) of the Convention. How then can the applicant be criticised for not having employed the correct procedure?        In the present case, it is true that the Federal Court in its decision of 4 October 1993 dismissed the applicant's public law appeal. It found that, contrary to good faith, the applicant had challenged F.H. belatedly.        However, the Commission notes that the Federal Court in its decision of 4 October 1993 also stated that Article 5 para. 3 (Art. 5-3) of the Convention had indirectly been breached as F.H. had first imposed detention on remand on the applicant and had later prepared the bill of indictment.        As a result, the Federal Court dealt in fact with the applicant's complaint in substance.   The Commission is therefore satisfied that the applicant has complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.        On the other hand, the issue whether or not the applicant could nevertheless have been expected to voice his complaints at an earlier stage of the proceedings falls to be examined together with the substance of the application.   3.    The Government further submit that the applicant has not complied with the requirement of the six months' rule stipulated in Article 26 (Art. 26) of the Convention.   It is recalled that, after the Court's judgment in the case of Huber v. Switzerland on 23 October 1990, the applicant filed public law appeals invoking Article 5 para. 3 (Art. 5-3) of the Convention which led to three judgments of the Federal Court, i.e. on 21 December 1990, 14 May and 4 October 1993. The applicant should have challenged F.H. immediately after the Huber judgment, i.e. in the proceedings leading to the Federal Court's decision of 21 December 1990.   However, the application is out of time as it was only introduced before the Commission on 10 March 1994.        The applicant contends that the respondent Government's argument is untenable that he has not complied with the six months' rule according to Article 26 (Art. 26) of the Convention. It would mean that if a person failed to file a challenge the first time when the legality of his detention was controlled, this would exclude the possibility of filing such a challenge whenever his detention was prolonged later on. In the applicant's submission the Government furthermore contradict themselves when they submit that the applicant should have filed his application before the Commission already against the Federal Court's decision of 21 December 1990.        The Commission notes that, after the applicant's detention on remand was prolonged on 26 October 1990, the applicant filed an appeal in which he referred to the Court's judgment in the case of Huber v. Switzerland (Eur. Court HR, Series A no. 188).   However, his appeal was dismissed on 8 November 1990 by the Indictment Chamber of the Canton of Basel-Stadt, inter alia, as the complaints were premature.   The applicant's further appeal to the Federal Court was struck off the list of cases on 21 December 1990 as the applicant had meanwhile been released from detention on remand.        In the Commission's opinion, therefore, the remedies to the Indictment Chamber and to the Federal Court could not have served effectively to raise the complaints the applicant is now raising before the Commission.        On the other hand, the Commission observes that the Federal Court in its decision of 4 October 1993 effectively dealt with the complaints at issue, the decision being served on 20 October 1993 and the applicant filed his application with the Commission on 10 March 1994.        As a result, the Commission cannot uphold the Government's objection according to which the applicant has not filed his application "within a period of six months from the date on which the final decision was taken" within the meaning of Article 26 (Art. 26) of the Convention.   4.    Subsidiarily, the Government do not contest that in the present case there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.   However, the Government submit that the applicant waived his right under this provision in that he did not challenge F.H. when he became aware that the latter would represent the prosecution.   Thus, before the Huber judgment, the applicant merely complained of the length of his detention on remand; only thereafter did the applicant request another member of the Public Prosecutor's Office to represent the prosecution. When on 4 December 1991 F.H. informed the applicant that he himself intended to indict the applicant, the latter on 7 January 1992 merely complained of the length of the delay of the indictment.   Only on 21 July 1992 did the applicant formally challenge F.H.   However, the applicant should have done so as soon as he became aware of the possibility, i.e. after he received F.H.'s letter on 4 December 1991.        The applicant points out that in his letter of 3 December 1991 he challenged F.H.   This challenge was never withdrawn.   In his letter of 7 January 1992 he complained that there had still not been an indictment, and that a further delay could no longer be tolerated.   The applicant requested "an indictment", but not "an indictment by F.H.". Thus, it cannot be said that he did not contest the letter of F.H. of 4 December 1991.   The applicant also points out that the respondent Government in fact admit in his case a breach of Article 5 para. 3 (Art. 5-3) of the Convention.        The Commission finds that this complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   This case 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 grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.             M. de SALVIA                          G.H. THUNE       Deputy Secretary                     Acting President       to the Commission                    of the Commission