H.G. v. SWITZERLAND
Inadmissible
Georg Ress
The applicant, H.G., is a German citizen, born in 1958, and living in Altendorf (Switzerland). He is represented before the Court by Mr M. Ziegler, a lawyer practising in Lachen. The respondent Government are represented by their agent, Mr P. Boillat, Head of the International Affairs Division of the Federal Office of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked as a sales representative for a fashion company. From 1988 until 1993 he enabled a Hong Kong supplier to transfer funds to Switzerland. The supplier eventually informed the applicant’s superiors of the transfers, whereupon, on 24 March 1997, the company filed a criminal report (Strafanzeige) against the applicant on account of disloyal business conduct (ungetreue Geschäftsführung). On 3 April 1997 the Investigating Office (Verhöramt) of the Canton of Schwyz issued a warrant of arrest against the applicant. He was suspected in particular of having induced his company to purchase merchandise from the Hong Kong supplier from which, in return, he had requested and obtained up to 200,000 Swiss francs. On 9 April 1997 the applicant was remanded in custody. According to the order of arrest, there was a danger that he would collude with other persons during the investigations. In the ensuing proceedings the applicant was represented by a lawyer, though he was not permitted freely to communicate with his lawyer until 28 April 1997. It furthermore appears that, after his arrest, his bank accounts were blocked. During the applicant’s detention, he had the possibility of taking a daily walk around the town of Schwyz. During this walk he had to wear handcuffs. On 10 April 1997 the applicant was questioned by the Investigating Office in the presence of his lawyer. On 11 April 1997 the applicant’s lawyer transmitted via fax a complaint about the detention on remand to the President of the Cantonal Court (Kantonsgericht) of the Canton of Schwyz. On the same day the applicant’s lawyer was informed in reply that a legal statement transmitted via fax lacked the necessary personal signature. The lawyer then forwarded a signed statement which reached the President on 14 April 1997. The latter fixed a hearing for 16 April. Also on 14 April 1997 the applicant filed a further complaint about the delay in fixing the hearing, as he had filed his complaint on 11 April. On 15 April 1997 the applicant was heard by the Investigating Office in the presence of his lawyer. On 16 April 1997 the President of the Cantonal Court heard the applicant, his lawyer and the investigating judge. The President also visited the applicant’s prison cell. On the same day, the President dismissed the request of 11 April, the decision being served on the applicant on 18 April 1997. In his decision the President found that the delay in dealing with the applicant’s complaint resulted from the applicant’s failure personally to sign that document. Insofar as the applicant complained that he was unable to consult the case-file, the President noted that the applicant had seen certain annexes to the criminal report of 24 March 1997; the minutes of the applicant’s interrogations on 10 and 15 April; a letter of the Hong Kong firm of 1994; and part of the minutes of the interrogation of a certain Ch.R. To the extent that the applicant criticised that he was not able freely to communicate with his lawyer and was denied free legal aid, the President found that pursuant to Section 140 of the Code of Criminal Procedure (Strafprozessordnung) the applicant should have filed a complaint with the Public Prosecutor’s Office and, subsequently, with the Cantonal Court, rather than with its President. In his decision, the President then examined, and confirmed, that there was an urgent suspicion that the applicant had committed the offence at issue. Finally, the President dismissed the applicant’s grievances about the conditions of imprisonment, namely the complaints that he lacked mineral water; that the food consisted of too much meat; and that there was insufficient light in the cell. To the extent that the applicant complained that upon his arrest he had not been able to consult a doctor about a suspected skin cancer, the President found that the applicant had meanwhile been examined by a prison doctor. The President also ordered that the applicant be issued a lamp and cleaning materials. On 18 April 1997 the applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht). In his public law appeal the applicant complained, inter alia, of breaches of Article 5 §§ 3 and 4 of the Convention. He submitted that the President of the Cantonal Court had had the entire case-file at his disposal, whereas he had been refused access thereto. It did not suffice if, as the President stated, he, the applicant, had seen all relevant documents, since the President’s decision could also have been influenced by other documents. For instance, his decision of 16 April 1997 mentioned the date of the criminal report originally filed against him, a document which the applicant had never seen. The applicant further complained of the conditions of detention, namely in respect of the meals and of the doctor provided, who had been a general practitioner and not a skin cancer specialist. The Federal Court transmitted the applicant’s public law appeal for observations to the Cantonal Court and the Investigating Office of the Canton of Schwyz. On 24 April 1997 the applicant filed a request for consultation of the case-file. The request was refused by the Federal Court on 28 April 1997. Also on 28 April 1997, the President of the Cantonal Court of the Canton of Schwyz dismissed the applicant’s further request for release from detention, though he ordered the prison administration to allow the applicant to take a daily walk of one hour without handcuffs. The decision considered that having to take walks with handcuffs was unacceptable from the point of view of human dignity, and that there was no danger that the applicant would abscond. Another request filed by the applicant with the Federal Court for consultation of the case-file was dismissed by that court on 1 May 1997, though the applicant was forwarded a copy of the observations of the Cantonal Court and the Investigating Office. On 5 May 1997 the applicant filed with the Federal Court his reply to the observations of the Cantonal Court and the Investigating Office, as well as further submissions. He complained, inter alia, that he had not been permitted to communicate with his lawyer until 28 April 1997; that he had been refused an officially appointed lawyer; and that, contrary to Article 3 of the Convention, he had been publicly led around in handcuffs and had been chained publicly together with a suspected violent criminal. The applicant’s public law appeal was dismissed by the Federal Court on 20 May 1997, the decision being served on 27 May. In its decision, the Federal Court found that the Investigating Office fulfilled the requirements under Article 5 § 3 of the Convention. It held that the Investigating Office was independent in that it was not effectively supervised by the Public Prosecutor’s Office. Insofar as the President of the Cantonal Court had only heard the applicant belatedly, on 16 April 1997, the court noted that the applicant was himself responsible for the delay as he had not personally signed his request. To the extent that the applicant complained about insufficient consultation of the case-file, the court considered that the applicant had been able to consult all documents upon which the decision of the President of the Cantonal Court of 16 April 1997 had been based. The Federal Court furthermore considered that the applicant could no longer claim a practical interest in his complaint about the conditions of detention, as the latter had meanwhile been ameliorated. To the extent that he requested free legal aid and an officially appointed lawyer, the court considered that he was at most lacking funds temporarily. Meanwhile, the applicant’s lawyer telephoned the Investigating Office about the applicant’s continuing walks in handcuffs. On 21 May 1997 the Investigating Office sent a fax to the prison administration according to which the “applicant’s lawyer had withdrawn his agreement to a walk in handcuffs outside the village, for which reason the operation is cancelled. The measures so far ordered for a walk without handcuffs shall apply again.” By a letter of 22 May 1997, the applicant’s lawyer pointed out to the Investigating Office that, when previously speaking with that Office, he had in fact referred to the decision of the President of the Cantonal Court of 28 April 1997 according to which there should no longer be any handcuffs. The lawyer requested compliance with this decision. Following further requests for release from detention, the applicant was released on 9 June 1997. The Code of Criminal Procedure of the Canton of Schwyz lists in Section 26 the grounds for detention on remand and in Section 27 provides, inter alia, that the investigating judge shall be competent to impose such detention. Section 140 envisages the possibility of a complaint in proceedings before the Investigating Office to the Public Prosecutor’s Office and subsequently to the Cantonal Court, though this remedy does not apply if other remedies are available. In this respect, Section 28 provides for an appeal to the President of the Cantonal Court against the warrant of arrest; the conditions of detention; and the refusal of release from detention. Section 42 of the Judicial Organisation Act (Gerichtsordnung) of the Canton of Schwyz provides that the Government of the Canton of Schwyz shall elect the investigating judges, and Section 45 states that the Public Prosecutor’s Office shall supervise the Investigating Office. Section 44 § 2 states that the Investigating Office shall be competent for conducting the investigations. According to Section 37 § 1, the Public Prosecutor’s Office will raise the charges at the trial before the court. According to the Federal Court’s case-law, a complaint about unlawfulness of detention may no longer be filed after release from detention. However, subsequent complaints may be raised in an action for compensation before the Federal Court (see Arrêts du Tribunal fédéral [ATF] 125 Ia 394; 110 Ia 140; 109 I a 170).