CASE OF QUARANTA v. SWITZERLAND
Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo;N. Valticos
7. Mr Quaranta, who is an Italian national, was born in 1962 at Scorrano (Lecce). He arrived in Switzerland at a very young age, with his parents. He resides at Vevey in the Canton of Vaud, where he pursues the occupation of assistant plumber. 8. Between 1975 and 1978 he was placed in various homes for juveniles. In December 1978 he was made the subject of an educational assistance order by decision of the President of the Lausanne Juvenile Court. On his return to his parents’ home, he began, in August 1979, a plumber’s apprenticeship but failed to complete it. He subsequently worked for a number of local companies. On 5 March 1982 the Vevey District Criminal Court gave him a suspended sentence of ten months’ imprisonment, with three years probation, for aggravated theft, robbery, criminal damage and taking and driving away a motor vehicle without a driving licence. The court decided to treat him on the same footing as his accomplice and accepted his plea of diminished responsibility (Article 11 of the Swiss Penal Code), but without ordering an expert psychiatric opinion; it also took into consideration his youth, the short duration of his criminal activity, his personal situation at the time of the offences, particularly as regards his emotional insecurity, and the lasting improvement observed in his behaviour. This decision is not here in issue. 9. The applicant, who was suspected of an offence under the Federal Misuse of Drugs Act of 3 October 1951 ("the 1951 Act"), appeared on 10 March 1985 before the investigating judge ("juge informateur") of the Vevey-Lavaux district. In the course of this sole examination, he requested free legal assistance (Article 104 of the Vaud Code of Criminal Procedure - see paragraph 18 below). On 23 May 1985 the investigating judge communicated the application to the President of the Criminal Court who rejected it (Article 107 of the Vaud Code of Criminal Procedure - see paragraph 18 below) on 31 May on the grounds that "the needs of the defence [did] not require ... the provision of free legal assistance" and that "the case [did] not give rise to particular difficulties". Mr Quaranta was informed of this decision on 3 June and, although advised of his right to appeal against it within ten days to the indictments tribunal, he did not do so. On 5 June 1985 he went to the Criminal Court to reiterate his request. By a letter of 7 June the registrar informed him that he could not lodge such a request until his file had reached the court. 10. On 23 August 1985 the investigating judge committed the applicant for trial in the Vevey Criminal Court, charged with offences under Articles 19 para. 1, 3rd, 4th and 5th indents, and 19 (a) para. 1 of the 1951 Act (see paragraph 19 below). 11. On 17 October 1985 the applicant repeated his request for free legal assistance, but on 30 October the President of the Criminal Court refused it for the same reasons as on 31 May (see paragraph 9 above). 12. The hearing began on 12 November 1985 at 2.30 p.m.; it lasted only twenty-five minutes. The applicant appeared in person without the assistance of a lawyer. No representative of the public prosecutor’s office participated in the court proceedings. The main documents in the file were read out, including the committal order. Mr Quaranta answered the President’s questions and added a few words in his defence. The same day, after having deliberated, the court found the applicant guilty of taking drugs and drug trafficking and on this account sentenced him to six months’ imprisonment; the sentence was not suspended. In addition, having stressed the relative seriousness of the offences, committed while on probation under the 1982 decision, it revoked the suspension order (Article 41 para. 3 of the Swiss Criminal Code) and ordered the activation of the previous sentence (see paragraph 8 above), from which the five days that the accused had spent in detention on remand were to be deducted. In the grounds of the judgment the court noted that the applicant had taken hashish daily since 1975 and that from the summer of 1983 to spring 1985 he had bought, in small quantities, 2 kg of this drug, most of which he had sold. It considered that a heavy penalty was called for because of the large quantity of hashish involved and the applicant’s profit-making intention. However, in mitigation, it took into account his "very precarious" financial position during the period in question; he was unemployed and he lived, together with his family, on social security benefit. 13. Through a lawyer, whose services he paid for himself, Mr Quaranta appealed to the Court of Criminal Cassation of the Vaud Cantonal Court. He pleaded primarily that the court should quash the judgment of 12 November 1985. In his view, his youth, his lack of vocational training and his two previous convictions (see paragraph 8 above) had made the presence of a lawyer necessary for his defence. Furthermore, the contested decision was, he claimed, flawed by reason of the criminal court’s failure to state why it had considered that the subjective conditions for suspending the sentence were not satisfied. In the alternative the applicant asked the Court of Cassation to vary the decision. He argued that the trial court had misapplied Article 41 of the Swiss Criminal Code inasmuch as, on account of his age and the improvement observed in his behaviour, he should have been left a last chance and been given a further suspended sentence. 14. On 27 January 1986 the Criminal Court of Cassation dismissed the appeal on the following grounds: "Application to have the decision quashed (recours en nullité) ... In a judgment, Coindet, of 11 November 1983 ... the First Public-Law Chamber of the Federal Court laid down the following principles: The conditions set forth in Article 104 para. 2 CCP [Code of Criminal Procedure] - the needs of the defence in a criminal prosecution - are the same as those laid down in the case-law concerning the right to free legal assistance as it may be inferred from Article 4 of the Constitution. The accused must be provided with defence counsel where the sentence which he may expect on conviction cannot be suspended because of its length, or where there is a likelihood of an order confining him to a non-penal institution [mesure privative de liberté]; in other cases such a right may be recognised under Article 4 of the Constitution only where, in addition to the relative seriousness of the case, there are special difficulties from the point of view of the establishment of the facts or the legal issues raised; it is then necessary to take account of the accused’s capacities, his experience in the legal field and the measures which appear necessary, in the specific case, to provide for his defence, in particular as regards the evidence which he will have to produce. ... In this instance, the length of the term of imprisonment did not in itself rule out the possibility of a suspended sentence. Moreover, the appellant does not claim that free legal assistance was necessary because he expected to receive a sentence which could not be suspended by reason of its length; there was no difficulty in the establishment of the facts, which, as the appellant states in his memorial, ‘are admitted in their large majority’; nor does the appellant rely on legal difficulties, and he is correct in not doing so; as regards the reasons relating to the accused’s personal situation, the fact that he is a young adult within the meaning of Articles 100-100 ter of the Criminal Code, and has already been convicted, cannot be regarded as constituting a particular difficulty. The submission is therefore unfounded and must fail. ... In so far as the appellant seeks to show that the decision was flawed with regard to points of fact which constituted the basis of the reasoning of the first-instance court in its refusal to suspend the sentence, it may be accepted that this submission raises a question of nullity. But it is unfounded. In fact, in order to establish whether the subjective conditions for suspending a sentence are satisfied, the trial judge must determine whether there are prospects for the defendant’s lasting improvement, having regard to his past history and his character (Arrêts du Tribunal fédéral, [ATF, official reports of the judgments of the Swiss Federal Court] 101 IV 258, ground 1; Federal Court: Meyer, 29.11.1983, ad Cass. : 7.10.1983). In this instance the trial court noted the appellant’s past history and found that he took and trafficked in drugs. As regards his character, it described his curriculum vitae, his family situation, his reputation and his financial position. The trial court therefore gathered together all the necessary information to make a prognosis. Consequently, the complaint that the decision was flawed in this respect is unfounded and the application to have the decision quashed must fail. ... 3. Application to have the decision varied (recours en réforme) ... Tribunaux [JT, Courts’ Gazette] 1980 I 460 no. 58, and the judgments mentioned therein). The same principles have been laid down by this Court: the appellate body should intervene only where the trial court misuses its power of assessment or where it has failed to give expressly or impliedly the grounds for its decision (see CCP with annotations, Article 415, p. 285). In this instance, the grounds for refusing to suspend the sentence were stated by implication and did not constitute misuse of the power of assessment. The quantity of drugs involved was large and the appellant’s criminal activity continued over a long period, while he was on probation under another sentence. The profit-making purpose is clear. Not even his precarious financial position excuses engaging in such traffic. The information obtained regarding the appellant is not wholly positive. The refusal to suspend the sentence is therefore justified and the application to have the decision varied must therefore also fail." 15. The applicant then lodged a public-law appeal with the Federal Court, complaining of the arbitrary application of Article 104 of the Vaud Code of Criminal Procedure and of violations of Article 4 of the Constitution and Article 6 para. 3 (c) (art. 6-3-c) of the Convention. He also sought free legal assistance in the proceedings before the Federal Court. On 5 December 1986 the Federal Court allowed his request for free legal assistance, but dismissed the appeal in the following terms: "1. The appellant states that the submissions on which he relies ... overlap for the most part and he gives no specific grounds, as required under Article 90 para. 1 (b) OJ [Federal Act on the organisation of the courts of 16 December 1943], concerning the complaint of a violation of the European Convention on Human Rights. Moreover, the guarantees secured by the provisions of Article 6 (art. 6) of the European Convention are in part already contained in Article 4 of the Constitution. They do not therefore in this case have separate effect (ATF 105 Ia 305, ground f, 103 Ia 5, ground 2). The present appeal can consequently be examined only from the point of view of domestic law. ... ... In other words provision of free legal assistance is indispensable where the case in question is of some gravity and gives rise to difficulties as to the facts or to the law of a kind that the accused is not in a position to deal with (ATF 111 Ia 82 s., ground 2 c, 102 Ia 89 et seq.). In order to ascertain whether the minimum requirements of Article 4 of the Constitution are satisfied, it is necessary in each case to assess all the specific circumstances (ATF 102 Ia 90). 4. (a) As far as the length of the likely sentence is concerned (an order of confinement in a non-penal institution not being relevant to the present case), the appellant does not claim that he risked, in the given circumstances and for the only offences of which he was accused, a sentence whose length was in excess of a sentence which might be suspended. Clearly the risk of the activation of the previous suspended sentence (which was here for a term of ten months’ imprisonment) has to be taken into account (see the Coindet judgment, cited above, ground 2 b). But the appellant does not maintain that, in view of this possibility, he in fact risked a custodial sentence of more than eighteen months. On the contrary, he relied on the total of sixteen months’ imprisonment imposed on him in order to argue that free legal assistance might have made it possible for him to obtain a more lenient sentence. It must therefore be recognised that the overall sentence which he actually risked did not exceed eighteen months and therefore did not entail the obligation to grant him free legal assistance. (b) Evidently, the appellant’s case must be regarded in itself as relatively serious, for the reasons set out in the judgments of the Cantonal Court and the Criminal Court. However, various considerations which the case-law has identified as militating in favour of according free legal assistance did not apply: Quaranta was not in detention on remand for a long time, which would have been an impediment to his defence; he was released on the very day on which he had been arrested (ATF 101 Ia 91, ground 3 e, 100 Ia 187/188); the prosecution case was not argued, at the trial hearing on 12 November 1985, by a representative of the public prosecutor’s office (ATF 106 Ia 183, ground 2 b, 103 Ia 5 i. f.); despite a certain instability, the appellant did not appear to be a man of diminished capacity either physically or mentally, as can be inferred from the attestation and the statements of his employer, as well as those of the social worker questioned by the police. In addition, his case did not give rise to any difficulty as to the facts, since the investigation concerning him consisted merely of a single interview by the investigating judge. Moreover, he immediately admitted the facts in respect of which he was accused, and which are not in any case contested in the appeal (ATF 111 Ia 85/86, 101 Ia 92). ... (aa) As regards the possibility of diminished criminal responsibility, the appellant relies, in the first place, on the extract from the contested judgment in which it is stated that ‘from 1975 until spring 1985, and with greater frequency since 1983, the accused has taken hashish on a daily basis’, an extract reproduced verbatim from the first-instance judgment of 12 November 1985. Secondly, he relies on the Conconi judgment (ATF 102 IV 74 et seq.). It appears, however, from the file of the investigating judge of the Vevey-Lavaux district that the above-mentioned statement of fact is not accurate. Questioned on 10 March 1985 by the police, the appellant stated: ‘I have been smoking hash for about ten years. For two years I have smoked every day’. The same day, he answered the investigating judge as follows: ‘I first came into contact with hashish at the age of thirteen ... . Since then I have smoked it from time to time; it is really only over the last two years that I have been smoking hashish almost daily’. The police report of 10 April 1985 notes that Quaranta ‘stated that he had been smoking hashish for about ten years and more regularly for two years’. There is no evidence to the effect that, contrary to his statements, the appellant smoked hashish on a daily basis ‘from 1975 onwards’, or indeed that he has in fact smoked every day since 1983. Moreover, the same evidence makes clear that he only used hashish, and not ‘hard’ drugs. In any event the committal order and the criminal court’s judgment of 12 November 1985 concerned solely hashish. On issues of law it was unnecessary to appoint a lawyer to act for the appellant in order to draw the Court’s attention to the fact that, in accordance with the Conconi judgment, ‘the court has a duty, where consumption of narcotics is involved, to consider whether the circumstances cast doubt on the accused’s responsibility’. Quaranta appeared in no way disturbed and, unlike Conconi, he had never used ‘hard’ drugs. The cantonal courts, which inquired into the accused’s character and expressed their views in this respect, therefore clearly considered that there were no grounds for doubting his mental state. Whether or not they were under an obligation to say so expressly in their judgments, as would seem to be a possible inference from the Conconi judgment, is immaterial in relation to an alleged obligation to accord free legal assistance. (bb) The question whether the reason for the refusal to suspend the new sentence also necessarily entailed the activation of the previous suspended sentence (cf. ATF 107 IV 92/93) was not in itself a complex legal issue which required the granting of free legal assistance. Given the appellant’s previous history and the nature and the dates of the new offences, there is no evidence that the provision of legal assistance - which Quaranta moreover received for his appeal to the Criminal Court of Cassation - would have been necessary for the protection of his rights. ... ." 16. On 21 July 1987 Mr Quaranta went to the prison of Bellechasse (Fribourg) to serve his sentence, but the High Council of the Canton of Vaud accorded him a partial pardon by a decree of 18 November 1987 which was worded as follows: "The enforcement of the sentences of ten months’ imprisonment, less five days of detention on remand, and six months’ imprisonment to which Quaranta was sentenced by the Vevey District Criminal Court respectively on 5 March 1982 and 12 November 1985 shall be suspended as from 24 December 1987 for a probationary period of three years from the date of suspension." 17. According to the first paragraph of Article 4 of the Federal Constitution, "All Swiss nationals shall be equal before the law. In Switzerland there shall be no vassals; and there shall be no privileges attaching to a place, birth, persons or families." 18. The two provisions of the Vaud Code of Criminal Procedure relied on or applied in the present case are as follows: "The accused must be provided with defence counsel in all cases in which a representative of the public prosecutor’s office participates in the court proceedings. In other cases, he may be provided with defence counsel, even against his will, when the needs of the defence so require, in particular for reasons relating to his personality or because of the particular difficulties of the case." "At any time until the opening of the trial, the accused may request free legal assistance. He shall make such a request to the investigating judge, who shall transmit it forthwith, with his preliminary opinion, to the President of the competent court; when the case has already been referred to the court, the accused shall submit his request directly to the President. The President shall take his decision promptly; ... ." 19. Sections 19 para. 1 and 19 (a) para. 1 provide inter alia: "Any person who unlawfully cultivates alkaloid or hemp plants with a view to producing narcotics, any person who unlawfully manufactures, extracts, transforms or prepares narcotics, any person who unlawfully stocks, dispatches, transports, imports, exports or carries them in transit, any person who unlawfully offers, distributes, sells, deals in, procures, prescribes, markets or transfers them, any person who unlawfully possesses, holds, purchases or otherwise acquires them, any person who takes steps to pursue these ends, any person who finances illegal traffic in narcotics or who serves as intermediary for such financing, and any person who publicly encourages the consumption of drugs or reveals how to obtain or consume them, shall be liable, if he has acted intentionally, to imprisonment or a fine. In serious cases the sentence may be imprisonment (réclusion or emprisonnement) for at least one year; such a sentence may be accompanied by the imposition of a fine of up to one million Swiss francs. ... ." "Any person who unlawfully and intentionally consumes narcotics or any person committing an infringement of Article 19 in order to provide for his own consumption shall be liable to detention or a fine. ... ." 20. The term of imprisonment (emprisonnement) is laid down in Article 36 of the Criminal Code: "The term of imprisonment (emprisonnement) shall be not less than three days and, except as expressly provided to the contrary by statute, shall not exceed three years." 21. The rules governing the suspension of sentence are set out in Article 41, which is worded as follows: "1. Where a custodial sentence of not more than eighteen months or an accessory penalty is imposed, the court may suspend the enforcement of the sentence, if the record and character of the convicted person suggest that this measure will deter him from committing further offences and if he has made reparations, to the extent which might reasonably be expected of him, for damage as assessed by the court or by agreement with the injured party. The sentence may not be suspended where the convicted person has undergone, in respect of an intentional offence (crime or délit), more than three months’ imprisonment (réclusion or emprisonnement) within the five years preceding the commission of the offence. Foreign convictions are to be taken into account in so far as they are not contrary to Swiss public policy. In suspending the sentence, the court shall accord the convicted person a probationary period of from two to five years. Where more than one sentence is involved, the judge may limit the effect of the suspension to certain of them. ... ." 22. In the case of abnormal offenders, alcoholics and drug addicts, the court may order the following measures and treatment: "Where the mental state of an offender who has committed, by reason of this state, an offence punishable by imprisonment (réclusion or emprisonnement) under the present Code requires medical treatment or special care intended to remove or reduce the danger of the offender’s committing other such offences, the court may order that he be sent to a hospital or an asylum. It may order out-patient treatment if the offender does not represent a danger for other persons." ... Where out-patient treatment is ordered, the court may suspend the sentence imposed if that sentence is not compatible with the treatment. In such circumstances, it may order the convicted person to comply with rules of conduct under Article 41 (2) and, if necessary, place him under court supervision. ... ." "1. If the offender is an alcoholic and he has committed the offence in question by reason of this state, the court may commit him to an establishment for alcoholics or if necessary to a hospital in order to prevent new offences. The court may also order out-patient treatment. Article 43 (2) is applicable by analogy. The court shall order if necessary an expert opinion on the physical and mental state of the offender and on the appropriateness of the treatment. ... 6. This Article applies by analogy to drug addicts. ... ."