CASE OF IMBRIOSCIA v. SWITZERLAND
No violation of Art. 6-1+6-3-c
R. Pekkanen
7. Mr Franco Imbrioscia, a commercial traveller of Italian nationality, resided at Barletta (Italy) at the material time. 8. On 2 February 1985 the applicant arrived at Zürich airport from Bangkok. The customs officers found 1.385 kg of heroin in the suitcase of another passenger on the same flight, M. When asked whether he had been travelling with someone else, the latter pointed out the applicant. Mr Imbrioscia explained that they were both part of a group; he was searched and, when nothing was found, released. 9. After further investigations, he was none the less suspected of being linked to M., as a result of which he was arrested on the same day at Lugano, on the train on which he was returning to Italy. 10. Mr Imbrioscia immediately sought the help of Mrs S. C., who contacted a lawyer, Ms B. G. 11. On Sunday 3 February the applicant was questioned by the Zürich district prosecutor (Bezirksanwalt) with the assistance of an interpreter. He stated that he had caught the plane at Zürich because it was the cheapest way of travelling to Bangkok. By pure coincidence another person had also bought a ticket at Barletta for the same flight, but they had never sat next to each other during the trip. In addition, he denied that he had been involved in importing drugs into Switzerland. When he was advised that he was being remanded in custody, he requested that a lawyer be assigned to him as he did not know any lawyers in Zürich. He remained in custody in the building of the Bülach district prosecutor’s department. 12. On 8 February Ms B. G. wrote to Mr Imbrioscia offering to represent him. He returned the necessary authority to act to her after signing it. 13. On 13 and 15 February the police interrogated him without his lawyer being present. On 18 February 1985 he was questioned by a Bülach district prosecutor and he asked to be confronted with M., in order to prove his innocence. 14. On 25 February Ms B.G. withdrew as the applicant’s lawyer. The available documents do not show to what extent she had participated in his defence, but it is apparent from the prison register that she never visited him. On the same day Mr Fischer was officially assigned to act for Mr Imbrioscia and on 27 February was given permission to visit him, which he did for the first time on 1 March 1985. On 4 March 1985 the case file that had been sent to him for inspection on 27 February was returned by him to the district prosecutor’s office . 15. Mr Imbrioscia was questioned again by the district prosecutor on 8 March. Mr Fischer had not been invited to attend the interview and does not seem to have asked to be present, but he received a transcript of it. On 15 March he visited the applicant. 16. On 2 and 3 April 1985 the district prosecutor and two police officers went to Barletta to examine several witnesses, including two travel agents. 17. On 9 April 1985 Mr Imbrioscia’s lawyer had a conversation with the district prosecutor, the subject of which is a matter of dispute. According to the judgment delivered by the Zürich Court of Appeal (Obergericht) on 17 January 1986 (see paragraphs 23-24 below), the district prosecutor told the lawyer that his client would be questioned again on 11 April. Mr Fischer denies this and claims that the discussion centred on the applicant’s detention. In any event, he was not present on 11 April when Mr Imbrioscia was questioned about the inconsistencies in his statements and disputed the findings of the inquiries made in Italy. 18. By a letter of 17 April 1985 Mr Fischer acknowledged receipt of the transcripts of the witnesses’ statements in Barletta and of the questioning on 11 April (see paragraphs 16 and 17 above), and complained that he had not been invited to attend. He visited Mr Imbrioscia the next day. 19. Mr Fischer was, on the other hand, present on 6 June 1985 when the applicant was informed that the preliminary investigation had been concluded and that he faced possible charges of heroin smuggling and forgery. Mr Imbrioscia stated that he had had nothing to do with the matters of which he was accused under the first head and that he had acted in good faith as regards the second. His lawyer remained silent. 20. On 10 June 1985 the district prosecutor’s office committed Mr Imbrioscia and M. for trial in the Bülach District Court (Bezirksgericht) for drug trafficking. On 13 June Mr Fischer visited his client in prison. 21. At the hearing on 26 June 1985 the two accused were again questioned about the facts, and their counsel made their submissions. Mr Fischer also examined M. The court convicted the applicant and his co-defendant of offences against the dangerous drugs legislation (Betäubungsmittelgesetz). It sentenced Mr Imbrioscia to seven years’ imprisonment and banned him from residing in Switzerland for fifteen years; his co-defendant was given a six-year prison sentence. The defendants were each ordered to pay half the costs of the proceedings. 22. The court noted that the applicant had contradicted himself on several occasions - as to whether he knew M.’s first name and surname, whether he had sat next to him in the aeroplane and so on. Having regard to these inconsistencies, it considered that the accused’s claim that he was innocent could no longer be taken seriously (nicht mehr ernstgenommen werden kann). M., who was illiterate, had also made such contradictory statements that there were doubts as to his mental capacity; he could not therefore be regarded as having been the organiser of the drug smuggling. On the last occasion he was questioned, on 15 May 1985, he had moreover stated that his co-defendant had been with him continuously and had told him when he should take delivery of the suitcase. Mr Imbrioscia’s role had therefore been to assist and supervise M. The court found that the applicant had knowingly and willingly participated in committing the offence. 23. On 17 January 1986, after a hearing during which Mr Imbrioscia was again questioned by the judges, in Mr Fischer’s presence, the Zürich Court of Appeal (Obergericht) dismissed his appeal (Berufung). It upheld the sentence imposed by the District Court (see paragraph 21 above) and in addition ordered the applicant to pay the costs of the appeal proceedings. 24. As regards his lawyer’s absence during the interviews it observed that the lawyer had been informed of the date of the one on 11 April 1985 but had not attended, and that he had not put any questions at the last interview on 6 June 1985, which he had attended (see paragraph 19 above). Nor had the appellant shown how his defence had been adversely affected. On the merits, the court followed the trial court’s reasoning; it considered it scarcely plausible that two people who did not know each other should have travelled together from Barletta to Bangkok and back via Zürich and have stayed in Thailand in the same hotel. 25. An application by Mr Imbrioscia to the Zürich Court of Cassation (Kassationsgericht) for a declaration of nullity (Nichtigkeitsbeschwerde) was dismissed on 8 October 1986. With regard to the complaint based on the fact that no lawyer was present at the interviews, the Court of Cassation referred to the case-law of the Federal Court (see paragraph 27 below). The applicant had not alleged that he had asked to have his lawyer present and that his request had been rejected on irrelevant grounds (unsachliche Gründe); his lawyer had, moreover, attended the interview on 6 June 1985 and the hearing on 26 June (see paragraphs 19 and 21 above). 26. On 5 November 1987 the Federal Court dismissed a public-law appeal by the applicant against the judgments of 17 January 1986 and 8 October 1986 (see paragraphs 23-25 above). The Federal Court referred to its case-law concerning Article 17 para. 2 of the Code of Criminal Procedure of the Canton of Zürich (see paragraph 27 below). It stressed that Mr Imbrioscia had not complained that a request to have his lawyer present had been arbitrarily rejected; the lawyer had attended the last questioning and had been sent the transcripts of the previous ones. There had therefore been no infringement of the defence rights guaranteed to Mr Imbrioscia under the Swiss Federal Constitution and the Convention. 27. At the material time Article 17 of the Code of Criminal Procedure of the Canton of Zürich was worded as follows: "During the investigation counsel for the defence must be granted access to the file in so far as the purposes of the investigation are not thereby jeopardised. He cannot be refused the right to inspect reports by experts or transcripts of interviews at which he is entitled to be present. The investigating law officer may give counsel leave to attend personal interviews with the person charged. Once the investigation is concluded, counsel for the defence shall have unrestricted access to the file." According to the Federal Court’s case-law, the second paragraph of this provision permits the prosecuting authorities to refuse to allow a lawyer to be present on the first occasion when a suspect is questioned without giving reasons, but requires them to give reasons if they intend to exclude the lawyer from subsequent interviews. The practice in Zürich is that the lawyer does not generally attend when his client is interrogated by the police, but he is usually sent the transcripts. 28. The first two paragraphs of the Article cited above were amended on 1 September 1991 and now provide: "During the investigation access to the file must be granted to the person charged and to his defence counsel on request, if and in so far as the purposes of the investigation are in no way thereby jeopardised. The right to inspect documents already communicated to the person charged as well as experts’ reports and the transcripts of investigation interviews which counsel for the defence has been given leave to attend cannot be refused. The investigating law officer must give counsel for the defence an opportunity to attend examinations of the person charged if the latter so wishes and if the purposes of the investigation are not likely to be jeopardised. Members of the cantonal Bar must be admitted to examinations once the person charged has made his first statement to the investigating law officer or if he has been in custody for fourteen days. A defence counsel who attends an examination must be able to put questions to the person charged that are likely to throw light on the case."