European Court of Human Rights

The Government filed their memorial on 30 October 1978. On 18 December, the Secretary to the Commission advised the Registrar that the Delegates would reply to the Government’s memorial during the oral hearings and transmitted to him a note setting out the observations of the applicant’s counsel on the Commission’s report.

There appeared before the Court:

- for the Government:

       Mr. J. VOYAME, Director

                            of the Federal Division of Justice,                              Agent,

       Mr. R. HAUSER, Professor

                            at Zürich University,

       Mr. O. JACOT-GUILLARMOD,

                            of the Federal Division of Justice,                          Counsel;

- for the Commission:

       Mr. J. FROWEIN,                                                       Principal Delegate,

       Mr. B. KIERNAN,                                                                       Delegate,

       Mr. E. SCHÖNENBERGER, who had represented

                            the applicant before the Commission, assisting the               

                            Delegates under Rule 29 para. 1, second sentence, of the    

                            Rules of Court.

The Court heard addresses by Mr. Voyame and Mr. Hauser for the Government and by Mr. Frowein, Mr. Kiernan and Mr. Schönenberger for the Commission, as well as their replies to questions put by the Court.

AS TO THE FACTS

1. Facts relating to the individual applicant

(a) Mr. Schiesser’s initial detention on remand

He was at once brought before the Winterthur District Attorney (Bezirksanwalt). The latter heard Mr. Schiesser without his lawyer being present and then, on the same day, made an order directing that Mr. Schiesser be placed in detention on remand (Untersuchungshaft). The District Attorney strongly suspected that the applicant had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence (Article 49, sub-paragraph a), of the Zürich Code of Criminal Procedure - Strafprozessordnung, hereinafter referred to as StPO).

By a judgment of 14 July 1976, the Federal Court (Public-Law Chamber) rejected the appeal. It accepted that there were reasons to believe that the applicant might suppress evidence if he were released. It also considered that, since the circumstances clearly gave rise to a suspicion that the applicant had committed thefts, there was no violation of Article 5 para. 1 (c) (art. 5-1-c). As regards Article 5 para. 3 (art. 5-3), the Federal Court, having noted that there was a difference of opinion amongst legal writers over the interpretation of this provision, stated:

"The main criterion for classifying a given activity as ‘judicial’ is the independence which the bodies acting in that capacity enjoy vis-à-vis other State authorities and other persons entrusted with functions relating to the administration of justice as well as vis-à-vis institutions and organisations in the public sector ...

However, the text of Article 5 para. 3 (art. 5-3) of the Convention demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers.... The only possible interpretation of this Article is that even bodies which are administrative by reason of their position meet the Convention’s requirements to the extent that they exercise judicial functions, that is act independently when giving decisions in that capacity. Thus, according to Article 5 para. 3 (art. 5-3) ..., what is above all decisive is not the place held in the organisation of the State but rather the function to be exercised. In other words, that provision does not in principle preclude the simultaneous exercise by one and the same person of different functions, namely functions relating to investigation as well as functions in other areas of the administration of criminal justice ..."

In support of this interpretation, the Federal Court pointed out that, unlike paragraph 3 (art. 5-3), paragraph 4 of Article 5 (art. 5-4) uses the word "court". A further argument was derived from Article 6 para. 1 (art. 6-1):

"There is good reason to suppose that, had the authors of the Convention wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent authority, they would have utilised in Article 5 para. 3 (art. 5-3) wording identical to that in Article 6 para. 1 (art. 6-1)", namely "an independent and impartial tribunal".

Turning to the powers of the District Attorney, the Federal Court noted that he is both an investigating authority (Ermittlungs- und Untersuchungsbehörde), under the supervision of the Public Prosecutor, and - in cases before a single judge or the District Court – a prosecuting authority. In the present case, the District Attorney had acted as an investigating authority in which capacity Article 31 stop required him to be equally thorough in gathering evidence in favour of and evidence against the accused. From this the Federal Court concluded:

"It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative authority by reason of his position in the organisation of the State .... At the investigation stage, he in fact fulfils a judicial function and exercises no administrative activity.... Moreover, the rule on the election of District Attorneys by the people ... shows that the legislature wished to secure for this body a measure of independence vis-à-vis the executive and the administration even as regards the procedure for appointment.

This view is not contradicted by the fact that, during the investigation, the District Attorney’s Office may receive from the Public Prosecutor’s Office directives concerning either the exercise of his activities in general or a specific case (opening, conduct and closure of the investigation) .... What is decisive is that, when acting as a supervisory body during the investigation, the Public Prosecutor’s Office as well is carrying out a judicial function of investigation; it is only if and when the case is sent for trial that that Office assumes its role of prosecutor and thereby becomes a party to the proceedings."

(b) The prolongation of Mr. Schiesser’s detention on remand

Mr. Schiesser’s detention on remand had in the meantime been prolonged pursuant to Article 51 StPO. He was eventually released on 12 July 1976.

On 11 May 1978, the Court of Appeal imposed on Mr. Schiesser a sentence, suspended for four years, of seventeen months’ imprisonment for professional theft as a member of a gang (Article 137 of the Swiss Criminal Code).

2. Status and powers of the District Attorney

In addition, the Chief Public Prosecutor (erster Staatsanwalt) carries out inspections twice every year; their sole purpose is the expedition of proceedings.

For more than thirty years now, District Attorneys in practice receive no special orders or instructions from the Public Prosecutor concerning their powers of placing individuals in detention.

Once the investigation is closed, any District Attorney contemplating the release of an accused must so inform the Public Prosecutor if the prosecution falls within the latter’s competence (Directive no. 171).

PROCEEDINGS BEFORE THE COMMISSION

- by nine votes to five, that there has not been a breach of Article 5 para. 3 (art. 5-3) of the Convention;

- by eleven votes to one, with two abstentions, that it is not called upon to express an opinion on the merits of the claim concerning Article 5 para. 4 (art. 5-4) since the applicant has not exhausted domestic remedies within the meaning of Article 26 (art. 26).

The report contains a joint dissenting opinion by five members of the Commission.

CONCLUDING SUBMISSIONS MADE TO THE COURT

"1. to hold that Article 5 para. 3 (art. 5-3) of the Convention has not been violated in the instant case;

2. to hold that the applicant’s allegation of a violation of Article 5 para. 4 (art. 5-4) of the Convention, formulated after the Commission’s admissibility decision, is incompatible with the obligation derived from Article 26 (art. 26) of the Convention".

The Agent of the Government repeated these submissions at the hearings on 23 January 1979.

AS TO THE LAW

I. ON THE ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) (art. 5-1-c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

Mr. Schiesser contends that the Winterthur District Attorney cannot be regarded as an "officer authorised by law to exercise judicial power".

The Commission and the Government, when referring the case to the Court, requested it to decide whether the applicant’s detention on remand violated the right guaranteed by the above-cited provision.

The second component ("authorised by law to exercise") does not give rise to any difficulty: the Winterthur District Attorney exercised in the instant case powers conferred on him by Cantonal law (see paragraphs 7, 12 and 15-17 above); this is contested neither by the Commission, nor by the Government, nor by the applicant.

The first and third components ("officer", "judicial power") have to be considered together.

Again, the exercise of "judicial power" is not necessarily confined to adjudicating on legal disputes. In many Contracting States, officers (magistrats) and even judges exercise such power without adjudicating, for example members of the prosecuting authorities and investigating judges.

A literal analysis thus suggests that Article 5 para. 3 (art. 5-3) includes officials in public prosecutors’ departments as well as judges sitting in court (les magistrats du parquet comme ceux du siège).

The Court shares this opinion but wishes to emphasise the limits of the distinction which it establishes.

Since paragraph 1 (c) forms a whole with paragraph 3 (art. 5-1-c, art. 5-3), "competent legal authority" is a synonym, of abbreviated form, for "judge or other officer authorised by law to exercise judicial power" (Lawless judgment of 1 July 1961, Series A no. 3, p. 52; Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 75, para. 199).

In the present case, greater assistance can be gained from a comparison of paragraphs 3 and 4 (art. 5-3, art. 5-4): unlike paragraph 3, paragraph 4 requires the intervention of a "court". Before a body can properly be regarded as a "court", it must, inter alia, be independent of the executive and of the parties (Neumeister judgment of 27 June 1968, Series A no. 8, p. 44; De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 41, para. 78), but this also holds good for the "officer" mentioned in paragraph 3 (art. 5-3): while the "judicial power" he is to exercise, unlike the duties set out in paragraph 4 (art. 5-4), may not take the form of adjudicating on legal disputes ("un caractère juridictionnel"), nonetheless judicial power is likewise inconceivable if the person empowered does not enjoy independence (see paragraph 31 below).

According to the Government, the purpose of Article 5 para. 3 (art. 5-3) is to guarantee the impartiality and objectivity of the person before whom the individual concerned will be brought. In addition, the Government see the appearance before a judge or other officer as calculated to protect everyone against any unjustified arrest and detention.

For the Commission, the object of the provision under consideration is to afford to individuals deprived of their liberty a special guarantee: recourse not to a specific institution, namely a court, but to a procedure of a judicial nature.

The Court views Article 5 (art. 5) as designed to ensure that no one should be arbitrarily dispossessed of his liberty (see the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 16, para. 37). This overall purpose entails, in the area covered by paragraph 4 (art. 5-4), the necessity of following a procedure that has a "judicial character" and gives "guarantees appropriate to the kind of deprivation of liberty in question", without which it would be impossible to speak of a "court" (above-mentioned De Wilde, Ooms and Versyp judgment, pp. 40-41, para. 76). The "officer" referred to in paragraph 3 (art. 5-3) must, for his part, offer guarantees befitting the "judicial" power conferred on him by law.

The first of such conditions is independence of the executive and of the parties (see, mutatis mutandis, the above-mentioned Neumeister judgment, p. 44). This does not mean that the "officer" may not be to some extent subordinate to other judges or officers provided that they themselves enjoy similar independence.

In addition, under Article 5 para. 3 (art. 5-3), there is both a procedural and a substantive requirement. The procedural requirement places the "officer" under the obligation of hearing himself the individual brought before him (see, mutatis mutandis, the above-mentioned Winterwerp judgment, p. 24, para. 60); the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons (above-mentioned Ireland v. the United Kingdom judgment, p. 76, para. 199).

In verifying whether these various conditions are satisfied, the Court does not have to deal with questions that do not arise in the instant case, for example whether an officer is fitted, by reason of his training or experience, to exercise judicial power.

Two preliminary remarks appear necessary.

In the first place, the status of the District Attorney and his powers in the matter of detention on remand are laid down in detail in the Constitution of the Courts Act of 29 January 1911 (GVG), the Code of Criminal Procedure of 4 May 1919 (StPO) and the Collection of Circulars from the Public Prosecutor’s Office to the District Attorneys’ Offices, 1968 (see paragraphs 12 to 18 above). In particular, the StPO sets out clearly the reasons and procedure for placing someone in detention and, in the present case, the Attorney’s decision was based on that Code (see paragraph 7 above).

In the second place, the applicant is not alleging any failure to comply with Cantonal law. As the Commission notes, he does not claim that the Winterthur District Attorney did not act independently or did not take into account, as is required by Article 31 StPO, each of the items telling for or against a measure involving deprivation of liberty. Neither does Mr. Schiesser contend that that officer failed to indicate the grounds for the warrant for arrest as is stipulated by a 1956 Circular from the Public Prosecutor’s Office. Accordingly, it is the Zürich law as such which the applicant is calling in question.

In this latter connection, the Court recalls its established case-law: being seised of a case originating in an application lodged under Article 25 (art. 25) of the Convention, the Court must not undertake an abstract review of rules but must, as far as possible, confine its examination to the manner in which the Zürich law has been applied in the particular circumstances (see, inter alia, the Marckx judgment of 13 June 1979, Series A no. 31, p. 13, para. 27).

This argument, whose validity the Court accepts in view of its Delcourt judgment of 17 January 1970 (Series A no. 11, pp. 17-18, para. 32, second sub-paragraph), corresponds to the realities of the situation. Indeed, the Winterthur District Attorney proves to have received no advice or instructions from the Department of Justice or the Government of the Canton of Zürich or, for that matter, from the Public Prosecutor before ordering the applicant’s detention on remand. Besides, the applicant does not contest this. What is more, when hearing Mr. Schiesser the District Attorney acted alone, that is without the Public Prosecutor’s assistance or supervision. Since he had neither to submit to outside interference nor to consult another authority, the District Attorney exercised the personal discretion conferred on him by law. In these conditions, the Court considers that in the present case he offered guarantees of independence that are sufficient for the purposes of Article 5 para. 3 (art. 5-3); it attaches no real importance to the Government’s additional argument which is derived from the procedure for this officer’s appointment, namely election by universal suffrage.

The applicant complains that his lawyer was not allowed to attend the interrogation. This fact was confirmed by one of the Government counsel and the Commission’s Principal Delegate and is consistent with the practice followed in the Canton of Zürich but the Court does not consider it to be incompatible with Article 5 para. 3 (art. 5-3) of the Convention, which does not make a lawyer’s presence obligatory.

II. ON THE ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

In fact, he claimed to have been deprived of such an entitlement since during the fourteen days following his arrest he could, under the Zürich Code of Criminal Procedure, appeal only to the Public Prosecutor.

When referring the case to the Court, the Commission and subsequently the Government requested the Court to decide whether the applicant could nevertheless invoke Article 5 para. 4 (art. 5-4). At the hearings, the Principal Delegate invited the Court, on account of the failure to comply with Article 26 (art. 26), to decline jurisdiction to rule on the merits of the complaint relating to Article 5 para. 4 (art. 5-4). The Agent of the Government, for his part, confirmed the argument appearing in their memorial; he asked the Court to hold "that the applicant’s allegation of a violation of Article 5 para. 4 (art. 5-4) ..., formulated after the Commission’s admissibility decision, is incompatible with the obligation derived from Article 26 (art. 26) ...".

FOR THESE REASONS, THE COURT

1. Holds by five votes to two that there has been no breach of Article 5 para. 3 (art. 5-3);

2. Holds unanimously that it does not have jurisdiction to take cognisance of the complaint relating to Article 5 para. 4 (art. 5-4).

Done in English and French, the French text being authentic, at the Human Rights Building, Strasbourg, this fourth day of December, one thousand nine hundred and seventy-nine.

For the President

Rolv RYSSDAL

Judge

Marc-André EISSEN

Registrar

The separate opinions of Judges Ryssdal and Evrigenis, dissenting from the present judgment, are annexed hereto in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court.

R. R.

M.-A. E.