CASE OF S. v. SWITZERLAND
Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
8. S. is a mason and lives in Zürich. 9. In autumn 1980 a protest movement broke out in the town of Winterthur (Canton of Zürich) directed against the sale of nuclear power stations to a Latin American country then under a military regime. It continued in 1981 in the form of demonstrations against the holding of an international arms fair, and writing graffiti and occupying buildings as a protest against the housing shortage. In 1983 and 1984 there was a series of cases of arson and attacks using explosives, causing damage to several public and private buildings including the house of Mr Friedrich, who was then a Cabinet Minister (Bundesrat) and head of the Department of Justice and Police. On 20 July 1984 the Winterthur police set up a special unit with the task of co-ordinating the hunt for those responsible for these crimes. It shadowed the members, tapped the telephones and regularly emptied the dustbins of a commune which was thought to be sheltering the criminals. On 20 November, the police arrested twenty-seven persons and seized numerous documents at the same time. Ten of these persons were released again on the same day. The others were detained in solitary confinement, without being able to correspond freely with their lawyers, and each was the subject of a separate procedure. 10. S. was suspected of being involved in the above-mentioned crimes. He was arrested at his home in Geneva on 21 November 1984 but succeeded in escaping. He was arrested again on 30 March 1985 and charged with the use of explosives in connection with the attack on Mr Friedrich’s house. 11. On 2 and 4 April 1985 the Federal Public Prosecutor (Bundesanwalt) sent the Geneva authorities various documents implicating the applicant. On 10 April he was questioned by members of the Federal Public Prosecutor’s Office on the accusations against him, but exercised his right to silence. 12. The investigation became the responsibility of the Winterthur District Attorney’s Office (Bezirksanwaltschaft) on 22 May 1985, and S. was taken to Winterthur prison. After questioning him on 28 May 1985 the District Attorney (Bezirksanwalt) accused him of having caused an explosion at Mr Friedrich’s house and started a fire at a civil defence centre. He again remanded him in custody on the grounds of the risk of flight and of collusion with his co-accused. On 7 June 1985 he further accused him of arson at two rifle ranges, flooding business premises and criminal damage to property by means of graffiti. According to S.’s lawyer all these charges were based on graphological reports which had been drawn up on the basis of documents seized by the police on 20 November 1984 (see paragraph 9 above). 13. On 19 July 1985 the Geneva authorities sent the Winterthur District Attorney’s Office the results of their investigations. 14. In April 1985 the applicant had asked his mother to ask Mr Rambert, the lawyer representing one of the other accused, W., to take on his defence too. Mr Rambert declined to do this and on 1 May 1985 S. instructed Mr Garbade. On 10 June the President of the Indictments Division (Anklagekammer) of the Zürich Court of Appeal (Obergericht) designated him as court-appointed defence counsel with retrospective effect from 4 May. 15. On 8 May 1985, while still in custody in Bern, the applicant had been able to confer freely with Mr Garbade for about half an hour. From 15 May, on the other hand, visits took place under the supervision of a police official. Three of the applicant’s letters to his lawyer, dated 4, 6 and 21 May, were intercepted and were later used for the purpose of graphological reports. After being transferred to Winterthur prison S. continued to be subject to surveillance of his correspondence and his lawyer’s visits. He was, however, able on 29 May to have a meeting with no witness present with Mr H., a lawyer who had been approached by his mother to undertake his defence. 16. On 31 May 1985 the applicant spoke with Mr Garbade in the presence of a policeman who took notes and stopped the interview after an hour, on the grounds that they were no longer speaking about the case and he had other business to see to. 17. In a letter of 12 June 1985 the Winterthur District Attorney informed the Zürich Principal Public Prosecutor (Staatsanwalt) that he considered these measures necessary in view of the risk that the applicant’s lawyer might collude with other lawyers or other co-accused. He relied on the second paragraph of Article 18 of the Zürich Criminal Procedure Code (Strafprozessordnung), according to which: "An accused who is held in custody shall be permitted written and oral contact with defence counsel, in so far as the purpose of the investigation is not jeopardised. Once his detention has exceeded fourteen days, an accused must not be refused permission to consult defence counsel freely and without supervision, unless there are special reasons, in particular a danger of collusion. After the close of the investigation, an accused shall have this right without restriction. (...)." 18. The Indictments Division of the Zürich Court of Appeal gave S.’s lawyer permission on 27 June 1985 to examine three police reports and several transcripts of statements by the co-accused at the registry of the Court, but not to take copies of them. From that date until January 1986 (see paragraph 33 below) Mr Garbade did not have access to any other documents in the case-file. 19. There were numerous disputes between the lawyer and those carrying out the surveillance, notably on 23 August 1985 when the lawyer wanted to give his client several decisions and letters from the District Attorney and a copy of the memorial for the public-law appeal of 19 August 1985 (see paragraph 27 below). The latter document was seized by the officer and sent to the District Attorney. 20. On application by the Winterthur District Attorney’s Office the President of the Indictments Division of the Zürich Court of Appeal extended the applicant’s detention on remand until 12 September 1986, in order to prevent him colluding with his co-accused, who had meanwhile been released, and tampering with evidence. 21. In October 1985 Mr Garbade saw some extracts from the final police report of 8 August 1985, but he did not have access to the case-file until January 1986. 22. On 3 June 1985 the applicant appealed to the Indictments Division of the Zürich Court of Appeal, complaining of the surveillance of the interview of 31 May (see paragraph 16 above), and supplemented the appeal on 14 June following other visits on 7 and 14 June. 23. The Indictments Division dismissed S.’s appeal on 27 June. It pointed out that he was suspected of having committed the crimes in question and said that in view of the complexity and extent of the authorities’ investigation there was a serious risk of collusion; because the accused had refused to make a statement, it would have been easy for him to tamper with the evidence, as his co-accused had been released, apart from W. He had also kept in close contact with them, and was accused of serious offences which had constituted attacks on public and social order. There was also a risk of unintentional collusion on the part of Mr Garbade in view of his contacts with the lawyers representing the other accused, especially counsel for W. As for the conduct of the policeman responsible for surveillance of the interview of 31 May 1985 (see paragraph 16 above), this could be justified. 24. The applicant appealed against this decision to the Civil Division of the Zürich Court of Appeal; on 26 July 1985 that court upheld the decision. The court found that a danger that the applicant would collude with his co-accused followed from his refusal to make a statement, and it could be supposed that he would use every effort to make their respective statements agree with each other (abstimmen). Mr H. had indeed been able to confer freely with him, but the Civil Division did not find credible Mr Garbade’s assertions that his contacts with the lawyers representing the other accused were no closer than Mr H.’s; further, counsel for W. had advised the District Attorney’s Office that the lawyers had all agreed to co-ordinate their strategy. The court added: "Acting in such a way is not inadmissible, but it must, however, be compatible with the duty to ascertain the material truth (Gebot der materiellen Wahrheitsfindung). As the accused represented by Mr Garbade and Mr Rambert are exercising their right to refuse to make any statements, one cannot ignore the risk that defence counsel will not only co-ordinate their tactical and legal way of proceeding but may also, intentionally or not, adversely affect the ascertainment of the material truth. In these circumstances, precisely in the case of offences of this type which must be regarded as attacks on public and social order, there are sufficient indications pointing to a danger of collusion in the person of defence counsel." 25. On 10 June 1985 the applicant had also challenged a decision by the President of the Indictments Division extending his detention on remand. He complained that he had not been able to examine all the documents in the case-file, and that the proceedings had been entirely written. On 18 July 1985 the Indictments Division dismissed the appeal and confirmed the further remand until 12 September 1985, on the grounds that there was still a danger of collusion and flight. 26. S. then brought two public-law appeals before the Federal Court on 19 and 27 August. 27. In the first appeal, which was directed against the decision of 18 July 1985 (see paragraph 25 above), he relied on Article 6 para. 3 (b) in conjunction with Article 5 para. 4 (art. 6-3-b, art. 5-4) of the Convention. He alleged that the surveillance of the interviews made his right to take proceedings within the meaning of Article 5 para. 4 (art. 5-4) illusory, and that his right to a fair hearing was deprived of substance as regards the review of the lawfulness of his detention on remand; in particular, the aforesaid surveillance prevented any confidential conversation with his lawyer aimed at refuting the evidence collected during the investigation. Further, he did not have access to the case-file and his lawyer was unable to take a copy of it. The second appeal challenged the decisions of 27 June and 26 July 1985 (see paragraphs 23 and 24 above) and put forward essentially the same complaints. 28. On 15 October 1985 the Federal Court dismissed the appeal of 19 August (see paragraph 27 above). It found inter alia that Mr Garbade, whose task it was to draw up the application for release from detention, had had access to the case file, so that the applicant’s rights in the proceedings on the extention of his pre-trial detention had not been infringed. The court added that counsel would, at the preparation for trial at the latest, have the right to a copy of the case-file for his client if he asked for this. 29. The appeal of 27 August 1985 (see paragraph 27 above) suffered the same fate on 4 December. The Federal Court held that only Article 4 of the Federal Constitution and Article 6 para. 3 (c) (art. 6-3-c) of the Convention (as interpreted by the European Commission of Human Rights) were relevant, and not Article 6 para. 3 (b) (art. 6-3-b), as the surveillance had not prejudiced preparation for the trial. The authorities had not been arbitrary in describing the offences in question as systematic attacks on public and social order. The accused appeared to be extremely dangerous and it was reasonable to suppose that they would have resorted to illegal methods even during the judicial proceedings. Consequently, regardless of Mr Garbade’s personal qualities, surveillance of his contacts with his client was in accordance with the Constitution and the European Convention. In the event of irregular actions on the part of a lawyer, it was in the first place up to the disciplinary authorities to impose penalties on him. A lawyer could intentionally or unintentionally become the accomplice of an accused. This was the case in particular with Mr Garbade, who was in close contact with Mr Rambert, whose client W. had been allowed to communicate freely with him. However, the applicant could not claim to be the victim of discrimination, as W. had been in custody for much longer and was accused of additional offences. 30. The surveillance had not been relaxed in the meantime. The police officer in charge of it had drawn up reports on 23 August, 11 October, 21 October and 18 December; these were subsequently added to the case-file. It was apparent from the first report that Mr Garbade had had to show him the documents he was studying with his client. 31. In a letter of 15 October 1985 the Winterthur District Attorney’s Office had informed the Principal Public Prosecutor that the surveillance was aimed at eliminating all risk of collusion; he considered, however, that it was unlikely that a conversation listened to could be used in evidence against S. in any way. 32. On 21 October 1985 the Winterthur District Attorney notified Mr Garbade that he would end the surveillance as soon as he had heard the applicant’s statement on the accusations brought against him. Mr Garbade replied that S. would refuse to make any statement as long as the surveillance continued. 33. The surveillance of visits and correspondence was ended on 10 January 1986 following an interrogation lasting a day and a half. On that occasion the District Attorney asked the applicant to make a statement, but he exercised his right to silence. After this he was able to confer with his counsel in the prison library with no glass screen or any other restriction. 34. On 20 December 1985 the applicant had brought an appeal inter alia against the surveillance of visits and the fact that he was not allowed to consult the case-file. On 8 January 1986 the Indictments Division of the Zürich Court of Appeal had adjourned a decision on the first point, on the grounds that the District Attorney’s Office was about to discontinue the surveillance. On the second point the court had found that S. was still suspected of the offences in question and the length of the investigation was caused by his insistence on remaining silent. On 10 July 1986 the court found that the complaint on which it had adjourned a decision on 8 January was no longer a live issue now that the surveillance measures had ended (see paragraph 33 above). In order to decide whether the applicant was liable for costs or was entitled to damages, it assessed what chances of success the appeal would have had if the surveillance had continued. It noted that the circumstances referred to in the Federal Court’s decision of 4 December 1985 (see paragraph 29 above) had not changed by 20 December, the date of the appeal, and the restrictions on free communication between the applicant and his lawyer thus remained justified; it therefore did not award him any pecuniary compensation. 35. S. appealed against this decision to the Civil Division of the Zürich Court of Appeal, which upheld the decision on 19 January 1987, again on the grounds that the appeal of 20 December 1985 would probably have failed. 36. S. finally brought a public-law appeal on 27 February 1987. The Federal Court dismissed it on 30 November 1987. Restricting itself to examining whether the refusal to award compensation was tainted by arbitrariness, it found that there had been a danger of collusion and in essence approved the findings of the Indictments Division (see paragraph 34 above). 37. In a report drawn up for the Winterthur District Attorney’s Office on 26 March 1986, the Zürich police had expressed the opinion that some of the anonymous letters which had been sent shortly after the offences in question undoubtedly came from the applicant. 38. The final interrogation took place on 28 July 1986. According to the record, S. refused to answer the accusations brought against him, and his lawyer attributed those accusations to the fact that his client was thought to have anarchist opinions. 39. The Winterthur District Attorney’s Office’s final report (Schlussbericht) of 21 August 1986, comprising 235 pages, accused the applicant of nineteen offences and attempted offences of arson, participation in three attacks with explosives, various thefts and offences of criminal damage, including damage to a railway line; the damage amounted to approximately 7,670,000 Swiss francs. The report was forwarded to the Zürich Public Prosecutor’s Office. 40. On 12 September, 6 October and 22 December 1986 the applicant made unsuccessful requests to the Public Prosecutor’s Office to reopen the investigation. He applied again on 1 April 1987. 41. In accordance with paragraph 3 (c) of Article 198 a of the Zürich Criminal Procedure Code he left it to the Indictments Division to decide which court would try him. The Division decided to commit him for trial by the Court of Appeal rather than the Court of Assizes (Geschworenengericht), as it considered that his interests would be better protected in that way, especially with regard to his youth. 42. The trial was due to start on 14 January 1988 but the applicant did not appear. The Court of Appeal therefore adjourned the hearing. A fresh hearing took place on 11 December 1989, in the absence, for which no reason had been given, of S. who had been provisionally released on 15 September 1988. The Court of Appeal found him guilty inter alia of manufacturing explosives, arson, theft and criminal damage and sentenced him to seven years’ imprisonment - the 1,291 days spent in custody on remand being deducted - and to payment of costs and expenses. The applicant appealed. A new trial took place on 8 February 1990, again in his absence. After hearing his counsel and the representative of the Zürich Principal Public Prosecutor, the Court of Appeal upheld its judgment of 11 December 1989. He appealed to the Court of Cassation of the Canton of Zürich, and enforcement of the judgment was suspended by the appeal.