CASE OF SUTTER v. SWITZERLAND
No violation of Art. 6-1
C. Russo
10. At the time of the events giving rise to this case, Mr. Peter Sutter, a Swiss national born in 1949, was a student and resident in Basel. 11. During refresher courses (Wiederholungskurse) organised in 1974 and 1975 as part of ordinary military obligations, he was subjected to five and seven days’ strict arrest for refusing to comply with Article 203 bis of the service regulations, relating to hair-cuts. 12. Shortly before the beginning of the 1976 refresher course, the applicant received a registered letter from his unit commander instructing him to report for the course with a regulation hair-cut. He nevertheless presented himself on 28 August 1976 with his hair longer than authorised and refused to obey the officer’s verbal order to have it cut. 13. On 8 November 1976, the Military Prosecutor (auditeur militaire) drew up a "bill of indictment" (Anklageschrift) against Mr. Sutter, charging him with repeated insubordination and, subsidiarily, failure to observe service regulations (Articles 61 and 72 of the Military Criminal Code). 14. On 16 May 1977, at the close of a public hearing, Divisional Court no. 5 delivered in public a judgment sentencing the applicant to ten days’ imprisonment for the two offences. Mr. Sutter’s defence counsel had unsuccessfully requested the Divisional Court to decline jurisdiction on the ground that it lacked the independence and impartiality required by Article 6 (art. 6) of the Convention; he had also applied, in vain, for a supplementary enquiry into the futility, or indeed abusive nature, of the regulations on hair-cuts. A copy of the decision was sent to the applicant on 23 June 1977. 15. Having been duly informed by the grand juge (President of the Divisional Court) that he could appeal on points of law within twenty-four hours from delivery of the judgment, Mr. Sutter had immediately given notice of appeal to the Registrar (section 189 para. 2 of the Federal Army (Constitution of Courts and Criminal Procedure) Act of 28 June 1889 - "the 1889 Act"). On 2 July 1977, within the prescribed period of ten days from service of the judgment, the applicant filed a memorial containing a "final" statement (section 189 para. 3 of the 1889 Act) of his grounds of appeal. He submitted that the decision appealed against had infringed the law (section 188 para. 1, no. 1, of the 1889 Act) by applying regulations that were incompatible with Article 8 (art. 8) of the Convention; that the Divisional Court had not been composed in the manner prescribed by law (ibid., no. 2), four of the six judges being substitutes for the ordinary judges and the grand juge having been appointed by the Chief Military Prosecutor (auditeur en chef); that the Divisional Court had erred in not declining jurisdiction to hear the case on the merits (ibid., no. 3), since the military courts were not tribunals within the meaning of Article 6 (art. 6); and that the refusal to order a supplementary enquiry had prejudiced the defence on decisive points (ibid., no. 6) concerning the application of Article 8 (art. 8) and in particular paragraph 2 (art. 8-2) thereof. Mr. Sutter also drew the attention of the Military Court of Cassation to the fact that it was not consonant with Article 6 (art. 6) to conduct proceedings entirely in writing; he therefore requested it to hold at least one hearing and to pronounce its judgment publicly. 16. The grand juge transmitted the appeal to the Military Prosecutor, in his capacity as respondent; the latter was entitled to "submit his observations" within ten days (section 189 para. 3 of the 1889 Act), but chose not to do so. The grand juge afterwards sent the appeal and the papers in the case, without appending "his report on the matters in dispute" (ibid.), to the Chief Military Prosecutor. The latter forwarded the documents to the Military Court of Cassation. He could himself have filed observations if he had thought fit, but - like the Military Prosecutor and the grand juge - he confined himself to submitting that the appeal should be dismissed. 17. The President of the Military Court of Cassation requested a judge whom he had designated from amongst his colleagues to draft a report containing a reasoned proposal. This document was circulated, together with the papers in the case, amongst the other members. On 21 October 1977, the Court of Cassation deliberated on the matter in camera and dismissed the appeal. It thus did not rule on the merits of the case; according to the provisions then in force (section 194 of the 1889 Act), it could have done so only if the judgment had been quashed and the sole ground for the quashing had been misapplication of the law. This power the Military Court of Cassation no longer enjoys (see paragraph 19 below). The operative provisions of the judgment were immediately served on Mr. Sutter in writing. He received the full text on 24 January 1978 (section 197 of the 1889 Act). The reasons covered twenty pages and concerned mainly Mr. Sutter’s submissions as to the incompatibility of the 1889 Act with Articles 6 and 8 (art. 6, art. 8) of the Convention. As to the composition of the Divisional Court, the judgment stated that the substitute judges had the same legal status as the ordinary judges, and that the Chief Military Prosecutor had not infringed the law by appointing the grand juge - who had the status of an ordinary judge - to sit on the case, the ordinary president being unable to take part as he had had to deal with the matter at a previous stage as Military Prosecutor. 18. At the time of the facts giving rise to the present case, military criminal procedure was governed by the 1889 Act (see paragraph 15 above). As regards the public character of the proceedings, this Act drew a distinction according to the level of the court concerned. The Divisional Courts, which heard military-law cases at first instance, were required to give their decisions after holding public hearings and to pronounce their judgments in open court. On the other hand, proceedings before the Military Court of Cassation were conducted entirely in writing and its judgments were not delivered in public. Concerning the latter point, section 197 of the Act laid down merely that "an extract" of the judgment had to be communicated to the Chief Military Prosecutor, the accused and the grand juge. 19. The 1889 Act was repealed by the Federal Military Criminal Procedure Act of 23 March 1979 ("the 1979 Act"), which entered into force on 1 January 1980. The existing system was maintained for proceedings before the Divisional Courts, and was extended to the Courts of Appeal which were set up by the same statute. As regards the Military Court of Cassation, the 1979 Act provides that "There shall be no oral hearings" (section 189 para. 1). The Act did, however, make two innovations: in future, the Court of Cassation was to deliver judgment in open court (sections 48 para. 3 and 194 para. 1) and could in no circumstances itself rule on the merits of the case. 20. As was also the case in the past, the judgments of the Military Court of Cassation are collected together annually in a provisional form (roneotyped). Anyone who can establish an interest may consult or obtain a copy of the full text on application to the Chief Military Prosecutor or the military court registries. If judgments contain features that are novel or of importance for the interpretation of the law, they are subsequently published in printed form. The Sutter judgment of 21 October 1977 appeared in 1983 in volume 9 (covering the years 1973 to 1979) of the judgments of the Military Court of Cassation, under the number 136.