CASE OF MINELLI v. SWITZERLAND
Violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo
8. The applicant, a Swiss national born in 1932, is resident at Forch, in the Canton of Zürich; he is a journalist by profession. 9. On 27 January 1972, he published in the "National Zeitung" - a Basel daily newspaper which is no longer in existence - an article containing accusations of fraud against a company, Télé-Répertoire S.A., and its director, Mr. Vass. In the article he called for a search to be effected at Mr. Vass’ home, offices and other premises and, should the search prove positive, for his arrest. Six days earlier, Mr. Minelli had lodged with the Uster District Attorney’s office (Bezirksanwaltschaft) a complaint which, for reasons of jurisdiction, was transferred to the Ticino authorities. The latter, after hearing evidence from Mr. Minelli on 10 February, discharged the case on 10 May 1972. The facts recounted by the applicant had already been the subject of an article by another journalist, Mr. Fust, which appeared on 19 January 1972 in the daily newspaper "Blick". Mr. Fust complained that in order to promote sales of a telephone directory, the company in question had been using subscription forms (Einzahlungsscheine) that resembled telephone bills. In his view, such conduct could create the impression that this was an ordinary service provided by the Swiss postal authorities, giving rise to a debt that had to be paid in the same way as a periodical invoice. 10. Télé-Répertoire S.A. and Mr. Vass brought against both journalists a criminal complaint of defamation (Ehrverletzung) committed through the press. The complaint against Mr. Minelli was filed on 29 February 1972 in the Uster (Zürich) District Court (Bezirksgericht). On 6 June, the investigating judge questioned the parties in the presence of their lawyers. Previously, the applicant’s lawyer, Mr. Kuhn, had supplied certain documents and called for evidence to be submitted; on 28 June, he requested that several witnesses be heard. However, on 3 July 1974 the District Court suspended the proceedings, at Mr. Vass’ request, until completion of the proceedings instituted against Mr. Fust, the "Blick" journalist. The latter proceedings, which had begun on 28 February 1972 and had encountered numerous procedural vicissitudes, resulted on 2 September 1975 in a judgment of the lst Criminal Chamber of the Canton of Zürich "Higher Court" (Obergericht): Mr. Fust was fined 200 SF and ordered to pay about 1,400 SF in court costs, together with compensation of 1,400 SF to each of the private prosecutors in respect of their expenses. 11. On 22 August 1975, even before that judgment had been delivered, Mr. Vass had formally requested that the proceedings against Mr. Minelli be resumed; when doing so, he drew the Uster court’s attention to the statutory limitation period. On 12 September 1975, the court granted the request and asked Mr. Minelli to indicate whether he demanded that his case be heard before an assize court. Mr. Kuhn replied in the affirmative and the District Court therefore relinquished jurisdiction on 1 October 1975. On 6 November 1975, the Prosecution Chamber (Anklagekammer) of the Zürich Higher Court declared the complaint admissible and directed that the case be remitted to the Canton of Zürich Assize Court (Geschworenengericht) (Article 305 of the Zürich Code of Criminal Procedure). On 24 November 1975, the applicant entered a public law appeal against this decision; it was dismissed by the Federal Court on 6 January 1976. On 19 November 1975, the registry of the Assize Court had told Mr. Weber, Mr. Vass’ lawyer, by telephone that the hearings would be held between 19 and 21 January 1976, but they were subsequently postponed to await the Federal Court’s judgment. When that judgment was delivered on 6 January, it was too late, according to the Government, to hold the hearings on the date originally envisaged. However, on 21 January 1976 the Assize Court invited the parties to present their submissions on the apportionment of costs, having regard to the fact that the "absolute" limitation period (see paragraph 17 below) was close to expiring. Both parties did so in writing. Mr. Minelli also asked the Assize Court to obtain certain evidence. 12. On 12 May 1976, the Chamber of the Canton of Zürich Assize Court (Gerichtshof des Geschworenengerichts) decided that it could not hear the complaint (Nichtzulassung der Anklage) against the applicant because the "absolute" limitation period of four years had expired on 27 January 1976 (Articles 72 and 178 of the Swiss Criminal Code; see paragraph 17 below). It directed that Mr. Minelli should bear two-thirds of the court costs (Kosten der Untersuchung und des gerichtlichen Verfahrens), namely 374 SF out of a total of 562 SF, the balance being payable by the private prosecutors; it also ordered him to pay to each of them compensation of 600 SF in respect of their expenses, as against their claim of 3,600 SF. 13. The decision on this point was based on Article 293 of the Zürich Code of Criminal Procedure, whereby the losing party is to bear the costs of the proceedings and is to pay to the other party compensation in respect of his expenses, unless special circumstances warrant a departure from this rule. The Chamber of the Canton of Zürich Assize Court found that in the instant case it was the private prosecutors who were the losing party: as a result of limitation, they had not obtained the applicant’s conviction. It then referred to Zürich case-law according to which, in cases ending in an acquittal (Freispruch) on account of criminal irresponsibility or in a decision to terminate the proceedings (Einstellung) following the death of the accused, it is of significance to know, when the costs are being apportioned, what the judgment would have been had the accused been criminally responsible or survived. In its opinion, the same applied when the prosecution was terminated on account of limitation; "the obligation to bear the costs and expenses" must in such circumstances "depend on the judgment which would have been given had there not been limitation". The Chamber added that the costs of a private prosecution could never be left to be borne by the State and that according to the established practice in the matter there was no call to conduct a further investigation into the facts. To discover what the result of the prosecution would have been in the absence of limitation, the Chamber referred to the judgment (which has since become final) which the Higher Court had given on 2 September 1975 in the case of the journalist, Mr. Fust (see paragraph 10 above). After summarising the judgment and citing extensive extracts, the Chamber stated (translation from German into French supplied by the Government): "It can be accepted, as is done by the private prosecutors, that the present case is, with slight variations, the same as that referred to, namely the proceedings before the Cantonal Court against the journalist F. for defamation. In fact, Minelli, by maintaining that there had been fraud in the instant case and calling for Mr. Vass to be placed in detention on remand, has brought much more serious accusations against the private prosecutors. Unlike F., the accused apparently made no effort to verify his accusations. Minelli was a target of the private prosecutors’ publicity campaign when, in January 1972, he received from the company Télé-Répertoire Editions Vass a printed subscription form. However, according to his own statement, he was not deceived. Looking at the card more carefully, he found on the back a printed note ‘which gave it to be understood in a rather indirect manner that the invoice was intended to pay for an entry in heavy print in a telephone directory’ (ref. 5/28). When, a few days later, F.’s article appeared in "Blick", Minelli himself formulated the accusations in question, with the object, according to his own statement, of inducing the postal authorities to take action. Nevertheless, he did not previously contact either the private prosecutor Mr. Vass or his company because the facts seemed to him so clear that he did not consider it necessary to do so (ref. 5/26 p. 4). By failing to obtain more precise information from the private prosecutors, the accused committed a breach of his duty of care. He ought in fact to have made himself aware of the steps taken by them with a view to avoiding all risk of confusion. After obtaining this information he could at most have indicated his disapproval of their methods, but he did not have the right to accuse them of fraud publicly and in such a flagrant manner. As he nevertheless did so, he would in all probability have been convicted of defamation if the present proceedings had not been terminated on account of limitation. This conclusion is rendered more compelling by the fact that the proceedings for fraud initiated on the complaint of the accused against Mr. Vass in the Canton of Ticino ended in a discharge (10 May 1972); the costs of the proceedings were ordered to be paid by the State. The discharge was based on the absence of facts which would have made it possible to find that the constituent elements of the offence of fraud existed (ref. 5/20 and 21). The arguments the accused adduces against this decision can no longer be examined in the present proceedings. That would have been possible if the Assize Court had been required to reach a decision on the merits of the charge. Given that Article 293 of the Code of Criminal Procedure authorises the court to take account of the ‘special circumstances’, this means that it must take into consideration all the relevant circumstances in making its decision on the apportionment of costs. As stated by the Canton of Zürich Court of Cassation in its unpublished decision of 2 April 1973, cited above, these circumstances include the fact that the private prosecutors contributed by their behaviour to the initiation of the proceedings, within the meaning of Article 189 of the Code of Criminal Procedure. The fact that the subscription forms were sent without envelopes until the end of 1971 and, sporadically, in 1972 may have given the accused the impression that the prosecutors had sought to create confusion or were at least not concerned about it. The fact of combining the offer and the invoice in their communication must also be considered as improper, as was moreover already noted by the Higher Court in its judgment. The private prosecutors’ commercial practices, which had already been publicly denounced, were indeed the cause of the article complained of. The accused’s reactions were accordingly provoked by the private prosecutors. Even though the accused acted for a specific purpose, his attack was nevertheless excessive. It clearly went beyond the bounds of what was tolerable. It must therefore be assumed that if the proceedings had not been terminated on account of limitation, the article against which the complaint was filed would very probably have led to the conviction of the accused; on the other hand, it was the private prosecutors’ behaviour which caused the accused to draw their reprehensible commercial practices to the attention of the public and the competent authorities. It is therefore justified to order the accused to pay two-thirds of the court costs and the prosecutors one-third. The parties’ expenses must be settled in the same proportions, on the basis that the total sum involved amounts to 3,600 francs; ..." 14. On 26 July 1976, Mr. Kuhn filed, on behalf of Mr. Minelli, an application for this decision to be quashed (Nichtigkeitsbeschwerde); reliance was placed, inter alia, on Article 6 § 2 (art. 6-2) of the Convention. The Canton of Zürich Court of Cassation (Kassationsgericht) dismissed this application on 30 September 1976. It treated the presumption of innocence as being a rule of evidence. It noted that it was undisputed that the publication complained of was defamatory. Accordingly, the applicant could not have avoided conviction, if the proceedings had not been terminated on account of limitation, unless he had had grounds for believing his allegations to be true; however, the Chamber of the Assize Court had found that this was not the case. According to the Court of Cassation, Article 6 § 2 (art. 6-2) could not be interpreted to mean that the good faith of a person charged with defamation must be presumed until the contrary was proved, in other words, that it was for the private prosecutor to prove bad faith on the part of the accused. It could not be supposed that the Convention intended to overturn (umwälzen) in such a way the criminal law of the Contracting States. Moreover, the field of application of Article 6 § 2 (art. 6-2) was not very clear. For the reason stated, it could not be accepted that it extended to the establishment of the truth in a criminal prosecution for defamation. It followed that the Chamber of the Assize Court had not violated this provision by reaching the conclusion, without taking evidence (Beweisverfahren), that Mr. Minelli had not succeeded in proving the truth of his allegations against the private prosecutors. The Court of Cassation directed that the applicant was to pay 251 SF in court costs and ordered him to pay to the private prosecutors compensation of 600 SF in respect of their expenses. 15. On 1 November 1976, Mr. Kuhn, on behalf of Mr. Minelli, filed with the Federal Court a public-law appeal based on Article 6 § 2 (art. 6-2) of the Convention. On 5 January 1977, at the applicant’s request, the President of the Court suspended the proceedings, on the ground that various cases raising similar issues were pending before the European Commission of Human Rights (applications nos. 6281/73 and 6650/74, Neubecker and Liebig, respectively, against the Federal Republic of Germany; application no. 7640/76, Geerk against Switzerland). The proceedings were resumed after these cases had formed the subject of friendly settlements under Article 28, sub-paragraph (b) (art. 28-b), of the Convention. 16. The Public-Law Chamber of the Federal Court dismissed the appeal on 16 May 1979. It recalled first of all that since this was a private prosecution for defamation, without the intervention of the public prosecutor, the costs could not be borne by the State: they had to be apportioned (aufteilen) between the parties in some way or another. Account also had to be taken of the fact that not only the accused’s criminal responsibility but also the private prosecutor’s reputation were at stake in such proceedings. This special situation might have repercussions on the method of apportioning the costs. According to the Federal Court, if, owing to a subsequent procedural obstacle, criminal proceedings did not terminate in a judgment on the merits but in a decision which left open the question of guilt (discharge or declaration that the complaint could not be heard), reasons of equity might necessitate the taking into account, in the decision on costs, of the probable result of the proceedings in the absence of such obstacle. It was therefore justified to consider, after a provisional examination of the merits of the case ("aufgrund einer provisorischen Prüfung der materiellen Rechtslage"), which party would probably have been successful in the absence of limitation. In the instant case, there had been no violation of the presumption of innocence as the result of the imposition of a punishment without guilt being established in accordance with the law. Neither had there been any measure implicitly amounting to a judicial finding of a criminal offence, equivalent to a conviction. Admittedly, the Chamber of the Assize Court came to the conclusion, "by anticipating partially the assessment of the evidence, that the applicant should probably have been convicted of defamation". This was, however, not "a formal finding of criminal guilt, but an estimation of the probable result of the proceedings ("Würdigung der Prozesschancen")". As the Chamber had to come to its decision on the basis of the evidence before it and as Cantonal practice prohibited its making any further investigation into the facts for the sole purpose of apportioning the costs, it was still possible that the proceedings might have resulted in an acquittal had they run their ordinary course. An order to pay costs was not in itself to be regarded as equivalent to a criminal conviction. Since the Chamber had rendered a decision only on the apportionment of costs and not on criminal guilt, the applicant (and also the private prosecutor) could not rely on Article 6 § 2 (art. 6-2) of the Convention to insist that the provisional examination undertaken in the present case should follow the procedure required for a decision on the merits. The Federal Court added that the criterion of the probable result of the proceedings could be utilised only if the data available enabled a sufficiently reliable estimate to be made and if the parties had previously had an opportunity to express their views on the matters relevant to the apportionment of costs. However, the limits to be respected in this context were based not on the presumption of innocence but on the general principle forbidding arbitrary decisions and on the right to be heard. And the applicant had made no complaint in this respect. Finally, the Federal Court noted that the Chamber of the Assize Court had not only considered whether the proceedings would have ended in Mr. Minelli’s conviction had there not been limitation, but had also had regard to the conduct of the two private prosecutors before the trial. The Federal Court directed that the applicant was to pay 643 SF in court costs and ordered him to pay to the respondents’ compensation of 800 SF in respect of their expenses. 17. Offences involving an attack on a person’s honour (délits contre l’honneur) are governed by Articles 173 to 178 of the Swiss Federal Criminal Code of 21 December 1937. Simple defamation (diffamation) entails liability to a sentence of imprisonment for not more than six months (Article 173) and serious defamation (calomnie), a sentence of imprisonment for not more than three years (Article 174 combined with Article 36). Under Article 178, prosecution for these offences is subject to a two-year limitation period. However, the running of time will be interrupted and will commence afresh whenever any measure of investigation is taken. Nevertheless, for offences involving an attack on a person’s honour there is in any event "absolute" limitation after four years, that is twice the normal limitation period (Article 72 § 2 of the Criminal Code). 18. In Switzerland, criminal proceedings for such offences are instituted by means of a private complaint (Strafantrag). In the Canton of Zürich, as in several other Cantons, the proceedings are known as Privatstrafklageverfahren (Article 287 of the Zürich Code of Criminal Procedure): it is for the injured party, not the State authorities, to take the initiative. The public prosecutor does not take part in the proceedings. Cases are normally heard by a District Court (Bezirksgericht), but the accused may apply for a transfer to the Assize Court if the alleged defamation has been committed through the press (Article 294 of the Code of Criminal Procedure and section 56 of the Zürich Constitution of the Courts Act). In that event, the Prosecution Chamber of the Canton of Zürich Higher Court - rather than the President of the District Court - rules on the admissibility (Zulassung) of the complaint (Article 305 of the Zürich Code of Criminal Procedure). If the court decides that the complaint cannot be heard, the private prosecutor may appeal (Article 169 of the same Code), but if the court decides that the complaint can be heard, the accused cannot appeal except on the ground that the court lacks jurisdiction. Under section 160 § 8 of the Constitution of the Courts Act, judgments in criminal matters must include decisions both on the question of guilt and the consequences thereof - acquittal, sentence, imposition of measures of prevention or assistance - and on damages (Schadenersatz), costs and compensation (Entschädigungen). Details of the apportionment of costs and expenses, unlike those of the sentence passed, are entered only in the court’s register of criminal cases and not in the judicial criminal records (casier judiciaire). 19. In the context of private prosecutions, costs include compensation to the parties in respect of their expenses (Prozessentschädigung) as well as court costs properly so-called (court and registry fees); their incidence is determined by reference, inter alia, to what caused the court costs and expenses to arise. It follows that the costs are in principle never paid by the State but must be borne by the parties themselves (Article 190 of the Zürich Code of Criminal Procedure). In this connection, Article 293 of the Code of Criminal Procedure provides: "The losing party shall bear the court costs and shall pay compensation to the other party in respect of his expenses; a departure from this rule can be made only if special circumstances so warrant." When determining the apportionment of costs and expenses, the court, according to the Government, enjoys a certain discretion in the choice of the criteria to be applied. It can take account, inter alia, of reprehensible or irresponsible behaviour by the parties before or during the investigation (Articles 189 and 286 of the Code of Criminal Procedure); of their having violated the principles of good faith or morality; of the principle of equity; and, finally, of questions of causation, which may lead it to form an estimate of the probable result of the proceedings.