CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 février 1997

.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. 27338/95                       by F. S .J. and 22 others                       against Switzerland         The European Commission of Human Rights sitting in private on 24 February 1997, 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                  B. MARXER                  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            Mrs.   M. HION            Mr.    R. NICOLINI              Mr.    H.C. KRÜGER, 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 26 April 1995 by F. S. J. and 22 others against Switzerland and registered on 16 May 1995 under file No. 27338/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The application has been introduced by 23 applicants, all of whom are German citizens.   Before the Commission the applicants are represented by Mr M. Günther, a lawyer practising at Hilden in Germany.         The facts of the case, as submitted by the applicants, may be summarised as follows.     A.     Particular circumstances of the case         On 17 September 1990 a demonstration took place at the Leibstadt nuclear power plant, located in Switzerland near the Swiss-German border.   The demonstrators came mainly from Switzerland and Germany. Certain persons entered the premises and climbed on to the cooling tower.   The power plant company filed a criminal complaint alleging trespass (Hausfriedensbruch) and causing damage to objects (Sachbeschädigung).         Criminal proceedings were instituted against the applicants who had participated in this demonstration.   The applicants were represented by Mr M. Günther who also represented the applicants in letters rogatory proceedings in Germany.         By penal order (Strafbefehl) of 2 July 1992 the Zurzach District Office (Bezirksamt) sentenced each applicant to 30 days' imprisonment, suspended on probation, and a fine of 300 Swiss Francs (CHF) on account of causing damage to objects (Sachbeschädigung) and alleging trespass (Hausfriedensbruch).   The penal orders were served on the applicants' representative in Germany.   Upon his objection, proceedings were referred to the Zurzach District Court (Bezirksgericht).         By letter of 30 November 1992 the District Court's President informed the applicants' representative that he could not represent his clients as only licensed (zugelassen) lawyers could practise in the Canton of Aargau.   When the applicants' representative expressed his disagreement, the District Court on 19 April 1993 issued a decision not to admit the applicants' lawyer at the trial.   The applicants were given a time-limit of 30 days to find another lawyer.         The applicants and their lawyer unsuccessfully appealed against this decision to the Court of Appeal (Obergericht) of the Canton of Aargau.         Their public law appeal (staatsrechtliche Beschwerde) was dismissed by the Federal Court (Bundesgericht) on 22 August 1994, the decision being served on 15 November 1994.         In its decision the Federal Court first dealt with the applicants' argument that even family members and other untrained persons were allowed to act as representative in criminal proceedings. However, the Court noted that such representation was justified on personal or financial grounds.         The Federal Court then dealt with the applicants' complaint that Article 6 para. 3 (c) of the Convention enshrines the right freely to choose the legal representative (p. 12-15):<Translation>              "The text of this provision does not directly answer the       question whether the accused may choose any particular third       person as defence counsel, or whether he is bound by the       respective licensing conditions for lawyers.   A restrictive       interpretation of the right to choose in this provision is called       for already on practical grounds: if an accused could in       principle choose any person whom he found suitable as defence       counsel, this would as a result invalidate the limitations       regularly envisaged under national law in matters of criminal       procedure.   Any third party (and also any professionals) could       then, by invoking the accused's right to a free choice, bring       about his right to practise as defence counsel in a particular       criminal case without having to comply with the requirements       applicable to lawyers.   This cannot be the purpose of the       Convention provision mentioned ...              The Cantonal legislator may generally limit professional       advocacy to those lawyers who have demonstrated the required       knowledge of Swiss law by means of a State examination in the       particular Canton or (on the basis of existing domestic rules on       freedom of movement) in a third Canton and whose residence in       Switzerland has familiarised them with the local judicial       customs.   Such licensing restrictions can easily be justified in       the interests of justice at issue and on the grounds of economic       order.   A refusal to license foreign lawyers is not the sole or       primary aim of a policy intended to protect the profession.   On       the one hand, foreign lawyers have as a rule only a limited       knowledge of Swiss and cantonal law and are not familiar with the       local circumstances and the forensic customs.   Furthermore, there       are practical reasons for refusing a licence (i.e. enforcement       of professional regulations; possibility of disciplinary       supervision: address for serving mail; practical difficulties       when dealing with the court, for instance when deciding on dates       or authorising consultation of the case-file).   It makes no       difference whether a foreign lawyer wants to act on a regular       basis in Switzerland or in a particular Canton, or whether, as       in the present case, he only wants to represent foreign clients       before a Swiss court in particular proceedings.   The grounds       mentioned have sufficient weight to exclude generally even       individual exceptions.   Nor is the legitimacy of this point of       view called in question by the fact that (on the basis of S. 5       of the Transitional Provisions of the Federal Constitution),       lawyers from other Cantons may appear before a court, as opposed       to foreign lawyers (or those with foreign diplomas).   Thus, the       diploma obtained in another Canton will guarantee at the outset       knowledge of the (unified) Swiss law, inter alia, the Penal Code.       One can also expect a certain minimal familiarity with procedures       of other Cantons which may differ from each other but are       influenced by a common tradition.   As a rule, this is not the       case with lawyers with foreign diplomas working abroad."         The criminal proceedings are still pending before the Zurzach District Court.     B.     Relevant domestic law         S. 64 para. 3 of the Federal Constitution (Bundesverfassung) provides that "the organisation of the courts (and) the court procedure ... shall remain ... with the Cantons".         According to S. 5 of the Transitional Provisions (Übergangs- bestimmungen) of the Federal Constitution, persons of liberal professions (wissenschaftliche Berufe) who have obtained a diploma to practise may do so in the whole of the Swiss Federation.         S. 61 para. 1 of the Code of Criminal Procedure (Strafprozess- ordnung) of the Canton of Aargau provides that only licensed lawyers (patentierte Anwälte) may act as defence counsel.   Defence in court of an accused is also possible, by a person's legal representative, by his spouse, a parent, or a child who has come of age.         In order for a lawyer to obtain a licence for professional practice, the Bar Act (Anwaltsgesetz) of the Canton Aargau provides that a lawyer must have obtained a diploma (Fähigkeitsausweis), either in the Canton of Aargau or in another Canton.     COMPLAINTS         The applicants complain under Article 6 para. 3 (c) of the Convention that Mr Günther was not admitted as the applicants' freely chosen defence counsel at the trial.   It is pointed out that the Swiss authorities never criticised the professional abilities of Mr Günther, and that indeed he was accepted by the prosecuting authorities at the outset of the investigations.         The applicants chose Mr Günther as they all live in Germany and can contact him more easily than a lawyer in Switzerland.   Moreover, it appeared necessary to employ a German lawyer familiar with German law as proceedings also took place via letters rogatory in Germany. The applicants may also be prosecuted in Germany for a similar offence.         The applicants feared that lawyers in the comparatively small Canton of Aargau would not be sufficiently distant from the local courts to obtain the applicants' confidence.   The applicants point out that a foreign lawyer who is related to an accused (spouse, parent) would not, according to Swiss legislation, be excluded from representation.         The applicants submit that conditions prevailing under Article 6 para. 3 (c) in the case of officially appointed lawyers, in particular the interests of justice, cannot apply in the case of a freely chosen lawyer.     THE LAW         The applicants complain that Mr Günther was not admitted to the trial as the applicants' freely chosen defence counsel.   They rely on Article 6 para. 3 (c) (Art. 6-3-c) of the Convention which states:         "3.   Everyone charged with a criminal offence has the following       minimum rights: ...         c.    to defend himself in person or through legal assistance of       his own choosing or, if he has not sufficient means to pay for       legal assistance, to be given it free when the interests of       justice so require ..."         The Commission notes that the proceedings against the applicants are still pending, and recalls that, in principle, it can only assess the fairness of criminal proceedings when it is able to consider them in their entirety (cf. No. 9000/80, Dec. 11.3.82, D.R. 28, p. 127). Moreover, an acquittal will normally be regarded as rectifying procedural errors alleged to have violated the Convention (cf. No. 8083/77, Dec. 13.3.80, D.R. 19, p. 223).   In the present case, the Commission considers that, until the relevant proceedings have finished, when it may become apparent that the applicants cannot claim to be victims of a violation, their complaint that Mr Günther was not admitted to the trial as their freely chosen defence counsel is premature.         In any event, the Commission, even assuming that the applicants' complaint could already be assessed at this early stage in the proceedings (cf. Nos 8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22, p. 216), recalls that, notwithstanding the importance of a relationship of confidence between lawyer and client, the right under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention to be defended by counsel of one's own choosing cannot be considered to be absolute and is necessarily subject to certain limitations. Thus, while national courts must certainly have regard to the defendant's wishes, they may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Eur. Court HR, Croissant v. Germany judgment of 25 September 1992, Series A no. 237-B, p. 33, para. 29).         In the present case, the applicants were in principle free to choose any lawyer as defence counsel provided he had obtained a diploma in Switzerland.   The Swiss courts refused to admit Mr Günther who resided in Germany and had not obtained a diploma in Switzerland.   The Federal Court, in its decision of 22 August 1994, found that foreign lawyers had, as a rule, only a limited knowledge of Swiss and cantonal law and were not familiar with the local circumstances and the forensic customs.   There were furthermore practical reasons for this solution, such as the enforcement of professional regulations; the possibility of disciplinary supervision; enabling access to the case-file; and discussing the schedule of a trial.   Lawyers from other Cantons had at least knowledge of the unified Swiss law, such as the Penal Code, and a certain minimal familiarity with Swiss cantonal procedures.   Finally, personal links and financial considerations justified the exception that other individuals, such as family members, could represent an accused in individual cases.         In the Commission's opinion, the Swiss courts gave relevant and sufficient reasons when rejecting the applicants' request for admitting Mr Günther as their defence counsel.   The Swiss courts' refusal was not, therefore, incompatible with Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.           H.C. KRÜGER                           G.H. THUNE          Secretary                         Acting President      to the Commission                     of the Commission