CEDH · CASELAW;CLIN;ENG — 16 décembre 1999

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Switzerland (dec.) - 20491/92 Decision 16.12.1999 [Section II] Article 6 Article 6-3-c Defence in person Conviction in abstentia of an accused prevented from attending his trial by decision of a foreign court: admissible   Article 6-1 Impartial tribunal Statements by a member of a jury allegedly casting doubts on his impartiality: inadmissible   The applicant, who is a doctor, practised in Switzerland until 1984. He then emigrated to the United States where he acquired American nationality and continued to practise as a doctor. In 1982 criminal proceedings were instituted against him by the Swiss authorities, mainly for fraud. In 1988 the applicant was summoned to appear in the Assize Court on 17 April 1989. The applicant indicated that he would appear at the hearing. He was unable to comply with that undertaking, however, as one of his American patients, who was suffering from cancer, had requested and obtained an order from an American judge preventing the applicant from leaving the United States unless he could be replaced by another doctor, on account of the consequences his departure might have for the patient’s treatment. The applicant had to surrender his passport to the American authorities. After being informed of that decision, the Swiss judicial authorities asked him to find a replacement doctor for the patient and dismissed his applications for an adjournment of the trial on the ground that he had failed to justify his absence. The President of the Assize Court expressed reservations about the American order preventing the applicant from leaving the country and noted, additionally, that the applicant had neither lodged an appeal against the decision nor made serious endeavours to find a replacement doctor, regardless of the fact that he had had advance notice of the hearing date. The applicant challenged the order preventing him from leaving the United States. However, while his application was being examined, the hearings in the Swiss Assize Court were held on the dates initially scheduled. He could not therefore attend, but was represented by his lawyers. The court sentenced him in absentia to a term of imprisonment. The day after judgment was delivered the press reported comments by one of the jurors who had admitted, in respect of the trial, not having “understood much of what was going on”. In his appeals against the Assize Court judgment the applicant submitted, firstly, that his absence had been justified and that his conviction in absentia was unlawful. Relying on the comments of the jury member, he also challenged the latter’s impartiality. He complained, lastly, that he had been unable to produce certain evidence and that the Assize Court had failed to question a prosecution witness. His appeals were dismissed. Inadmissible under Articles 6 § 1 and 6 § 3 (d): In casting doubt on the impartiality of the Assize Court on the basis of the statements made to the press by a member of the jury, the applicant, although represented by lawyers, had not used the possibility available to him under Swiss law to question that juror. Furthermore, there was no evidence that the juror’s conduct had been impartial or that it had influenced the verdict to the applicant’s detriment. As regards the Assize Court’s refusal to admit certain evidence submitted by the defence, it was for the national courts to decide whether or not evidence was admissible and the Court’s role was limited to assessing the fairness of the proceedings considered overall. The same was true of hearing evidence from a witness. In the instant case the applicant had been able, through his lawyers, to “submit all the arguments which he considered relevant to the defence of his interests and to produce evidence in support of his case” and the failure to hear evidence from the witness had not deprived the applicant of a fair trial: manifestly ill-founded. Admissible under Articles 6 § 1 and 6 § 3 (c) as regards the applicant’s complaint of his conviction in absentia .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes