CASE OF SCHIESSER v. SWITZERLAND
No violation of Art. 5-3
7. Mr. Friedrich Schiesser, a Swiss citizen born in 1952, resides in Winterthur (Canton of Zürich). On 5 April 1976, after he had been hiding from the police for some time, he gave himself up. He was at once brought before the Winterthur District Attorney (Bezirksanwalt). The latter heard Mr. Schiesser without his lawyer being present and then, on the same day, made an order directing that Mr. Schiesser be placed in detention on remand (Untersuchungshaft). The District Attorney strongly suspected that the applicant had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence (Article 49, sub-paragraph a), of the Zürich Code of Criminal Procedure - Strafprozessordnung, hereinafter referred to as StPO). 8. Mr. Schiesser lodged an appeal (Rekurs) against the above-mentioned order but it was dismissed by the Zürich Public Prosecutor (Staatsanwalt) on 13 April 1976. The Public Prosecutor, adopting the grounds relied on by the District Attorney, stated that the investigations had not been completed and that there was reason to believe that the applicant, who had no fixed abode in Switzerland, might abscond. 9. Mr. Schiesser filed a "public-law appeal" with the Federal Court, alleging that the Public Prosecutor’s decision was contrary to Article 4 of the Federal Constitution and to Article 5 paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention. He described as arbitrary the statement that he might suppress evidence and questioned whether the District Attorney was an "officer authorised by law to exercise judicial power", within the meaning of Article 5 para. 3 (art. 5-3). By a judgment of 14 July 1976, the Federal Court (Public-Law Chamber) rejected the appeal. It accepted that there were reasons to believe that the applicant might suppress evidence if he were released. It also considered that, since the circumstances clearly gave rise to a suspicion that the applicant had committed thefts, there was no violation of Article 5 para. 1 (c) (art. 5-1-c). As regards Article 5 para. 3 (art. 5-3), the Federal Court, having noted that there was a difference of opinion amongst legal writers over the interpretation of this provision, stated: "The main criterion for classifying a given activity as ‘judicial’ is the independence which the bodies acting in that capacity enjoy vis-à-vis other State authorities and other persons entrusted with functions relating to the administration of justice as well as vis-à-vis institutions and organisations in the public sector ... However, the text of Article 5 para. 3 (art. 5-3) of the Convention demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers.... The only possible interpretation of this Article is that even bodies which are administrative by reason of their position meet the Convention’s requirements to the extent that they exercise judicial functions, that is act independently when giving decisions in that capacity. Thus, according to Article 5 para. 3 (art. 5-3) ..., what is above all decisive is not the place held in the organisation of the State but rather the function to be exercised. In other words, that provision does not in principle preclude the simultaneous exercise by one and the same person of different functions, namely functions relating to investigation as well as functions in other areas of the administration of criminal justice ..." In support of this interpretation, the Federal Court pointed out that, unlike paragraph 3 (art. 5-3), paragraph 4 of Article 5 (art. 5-4) uses the word "court". A further argument was derived from Article 6 para. 1 (art. 6-1): "There is good reason to suppose that, had the authors of the Convention wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent authority, they would have utilised in Article 5 para. 3 (art. 5-3) wording identical to that in Article 6 para. 1 (art. 6-1)", namely "an independent and impartial tribunal". Turning to the powers of the District Attorney, the Federal Court noted that he is both an investigating authority (Ermittlungs- und Untersuchungsbehörde), under the supervision of the Public Prosecutor, and - in cases before a single judge or the District Court – a prosecuting authority. In the present case, the District Attorney had acted as an investigating authority in which capacity Article 31 stop required him to be equally thorough in gathering evidence in favour of and evidence against the accused. From this the Federal Court concluded: "It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative authority by reason of his position in the organisation of the State .... At the investigation stage, he in fact fulfils a judicial function and exercises no administrative activity.... Moreover, the rule on the election of District Attorneys by the people ... shows that the legislature wished to secure for this body a measure of independence vis-à-vis the executive and the administration even as regards the procedure for appointment. This view is not contradicted by the fact that, during the investigation, the District Attorney’s Office may receive from the Public Prosecutor’s Office directives concerning either the exercise of his activities in general or a specific case (opening, conduct and closure of the investigation) .... What is decisive is that, when acting as a supervisory body during the investigation, the Public Prosecutor’s Office as well is carrying out a judicial function of investigation; it is only if and when the case is sent for trial that that Office assumes its role of prosecutor and thereby becomes a party to the proceedings." 10. On 20 April 1976, the President of the Prosecution Chamber (Anklagekammer) of the Canton of Zürich Court of Appeal (Obergericht) decided that Mr. Schiesser should remain in detention until the following 18 May. The applicant appealed without success, firstly to the Prosecution Chamber, which confirmed the President’s order on 10 May, and then to the Federal Court, which dismissed his "public-law appeal" on 25 May 1976. Mr. Schiesser’s detention on remand had in the meantime been prolonged pursuant to Article 51 StPO. He was eventually released on 12 July 1976. 11. In view of the gravity of the charges against the applicant (thefts to a value of more than FS 30,000) the Canton of Zürich Court of Appeal had jurisdiction in the matter; the indictment therefore had to be drawn up by the Public Prosecutor’s Office which represented the prosecuting authorities at the trial (see paragraph 14 below). The investigation, on the other hand, had been conducted by an Ordinary District Attorney. On 11 May 1978, the Court of Appeal imposed on Mr. Schiesser a sentence, suspended for four years, of seventeen months’ imprisonment for professional theft as a member of a gang (Article 137 of the Swiss Criminal Code). 12. The Canton of Zürich is divided into eleven districts, each of which has a Prosecutor’s Office with one or more Attorneys. At the relevant time, the status and powers of District Attorneys were laid down in the Constitution of the Courts Act of 29 January 1911 (Gerichtsverfassungsgesetz, hereinafter referred to as GVG); an Act of 13 June 1976, which entered into force on 1 January 1977, has since replaced, and in substance re-enacted the provisions of, the 1911 Act. 13. Ordinary District Attorneys are elected by universal suffrage for a term of office fixed by the 1911 Act at three years (section 99 GVG) and increased by the 1976 Act to four years. Although any citizen may stand for election, candidates are most often lawyers who have completed university studies and received practical training in the courts, industry, the civil service or the legal profession. If necessary, the Cantonal Government appoints Special District Attorneys for a specified period (sections 100 and 106 GVG). 14. The District Attorney is subordinate to the Public Prosecutor who in turn comes under the authority of the Department of Justice and the Government (Regierungsrat) of the Canton of Zürich. The District Attorney is the prosecuting authority before the single judge in criminal matters and before the District Courts in cases concerning petty offences and misdemeanours; before the higher Cantonal courts (the Court of Appeal and the Assize Court - section 93 GVG), this function is performed by the Public Prosecutor. The District Attorney also has power to issue a punishment order (Strafbefehl) if the accused has admitted his guilt and if a fine (Busse) or a prison sentence of not more than one month is deemed sufficient (Article 317 StPO); however, the person concerned is entitled to enter an objection (Einsprache) to the punishment order, as is the Public Prosecutor (Article 321 StPO). 15. The investigation of criminal cases comes within the competence of the prosecuting authorities (section 94 GVG). The District Attorney conducts the investigation except in those cases where it is entrusted by law to the Public Prosecutor or a judge (Article 25 StPO). The District Attorney may issue a warrant for arrest (Verhaftsbefehl - Article 55 StPO), the grounds for which he must indicate; he has to hear an arrested suspect within twenty-four hours (Article 64 StPO). During this first interrogation, at which the suspect’s lawyer is not normally present, the suspect must be clearly informed of the reasons prompting the suspicions held against him (Article 65 StPO) and of the existence of a right of appeal against the warrant (1956 Circular from the Public Prosecutor’s Office). Directive no. 219 (Collection of Circulars from the Public Prosecutor’s Office to the District Attorneys’s Offices, 1968 - Sammlung der Kreisschreiben der Staatsanwaltschaft an die Bezirksanwaltschaften von 1968) specifies that this interrogation is not to be considered as a pure formality. Under Directive no. 58, the District Attorney is prohibited from delegating his power to interrogate to subordinate officials. 16. Detention on remand ordered by the District Attorney may not exceed fourteen days; this period may be extended by the President of the District Court or, in cases coming within the jurisdiction of the Assize Court, the President of the Prosecution Chamber of the Court of Appeal (Article 51 StPO). 17. The District Attorney remains under the control of the Public Prosecutor as regards both the opening and the conduct of the investigation. The Public Prosecutor is authorised to issue directives to him (Article 27 StPO) and must be kept informed of every serious offence (Directive no. 100). The Department of Justice or the Government of the Canton of Zürich may request the Public Prosecutor to submit a report on the opening and the conduct of criminal proceedings (Strafprozess) and may give him special orders and instructions (besondere Aufträge und Weisungen - Article 28 StPO). A report must be made to the Cantonal Government whenever proceedings having political significance are instituted (Article 29 StPO). In addition, the Chief Public Prosecutor (erster Staatsanwalt) carries out inspections twice every year; their sole purpose is the expedition of proceedings. For more than thirty years now, District Attorneys in practice receive no special orders or instructions from the Public Prosecutor concerning their powers of placing individuals in detention. Once the investigation is closed, any District Attorney contemplating the release of an accused must so inform the Public Prosecutor if the prosecution falls within the latter’s competence (Directive no. 171). 18. Assuming that the prosecution has not been discontinued, the District Attorney, or the Public Prosecutor, becomes a party to the criminal proceedings; when drawing up the indictment, he must however take into account items in the accused’s favour and not confine himself to stressing items that tell against him (Article 178 StPO).