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Cite as: [1988] ECHR 4, (1988) 10 EHRR 466

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In the Belilos case*,

_______________

* Note by the Registrar: The case is numbered 20/1986/118/167. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

The European Court of Human Rights, taking its decision in plenary

session pursuant to Rule 50 of the Rules of Court and composed of the

following judges:

Mr. R. Ryssdal, President,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mrs. D. Bindschedler-Robert,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. R. Macdonald,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. A. Spielmann,

Mr. J. De Meyer,

Mr. N. Valticos,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 and 29 October 1987 and 22

and 23 March 1988,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Government of the Swiss

Confederation ("the Government") on 18 July and 22 September 1986

respectively, within the three-month period laid down in

Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention

for the Protection of Human Rights and Fundamental Freedoms ("the

Convention"). It originated in an application (no. 10328/83) against

Switzerland lodged with the Commission under Article 25 (art. 25) by

Mrs. Marlène Belilos, a Swiss national, on 24 March 1983.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) of the Convention and to the declaration whereby Switzerland

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46), and the Government's application referred to Articles 45,

47 and 48 (art. 45, art. 47, art. 48). Both sought a decision from

the Court as to whether the facts of the case disclosed a breach by

the respondent State of its obligations under Article 6 § 1

(art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicant stated that she

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent her (Rule 30).

3. The Chamber of seven judges to be constituted included ex

officio Mrs. D. Bindschedler-Robert, the elected judge of Swiss

nationality (Article 43 of the Convention) (art. 43), and

Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On

26 September 1986, in the presence of the Registrar, the President

drew by lot the names of the other five members, namely

Mr. L.-E. Pettiti, Mr. B. Walsh, Mr. R. Bernhardt, Mr. A. Spielmann

and Mr. N. Valticos (Article 43 in fine of the Convention

and Rule 21 § 4) (art. 43).

4. Mr. Ryssdal, who had assumed the office of President of the

Chamber (Rule 21 § 5), consulted - through the Registrar - the Agent

of the Government, the Delegate of the Commission and the lawyer of

the applicant on the need for a written procedure (Rule 37 § 1). In

accordance with his orders, the following documents were received by

the registry:

- the applicant's memorial, on 22 December 1986;

- the Government's memorial, on 24 February 1987;

- a supplementary memorial from the applicant, on 4 May; and

- a supplementary memorial from the Government, on 12 June.

In a letter received by the Registrar on 23 April 1987, the Secretary

to the Commission indicated that the Delegate would submit his

observations at the hearing.

5. On 21 May, the Chamber decided to relinquish jurisdiction

forthwith in favour of the plenary Court (Rule 50).

6. Having consulted - through the Registrar - the Agent of the

Government, the Delegate of the Commission and the lawyer for the

applicant, the President of the Court directed on 27 May that the oral

proceedings should commence on 26 October 1987 (Rule 38).

7. The hearing was held in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

- for the Government

Mr. J. Voyame, Director of the Federal Office

of Justice, Agent,

Mr. M. Krafft, Ambassador, Head of the Directorate

of International Law, Department

of Foreign Affairs,

Prof. L. Wildhaber, University of Basle,

Mr. P. Rossy, Department of Justice and

Legislation, Canton of Vaud,

Mr. O. Jacot-Guillarmod, Head of the

International Affairs Department,

Federal Office of Justice, Counsel;

- for the Commission

Mr. J.A. Frowein, Delegate;

- for the applicant

Mr. J. Lob, avocat, Counsel.

The Court heard addresses by Mr. Voyame, Mr. Krafft and

Prof. Wildhaber for the Government, by Mr. Frowein for the Commission

and by Mr. Lob for Mrs. Belilos, who also addressed the Court, as well

as their replies to its questions.

8. On 9 December, the applicant provided particulars of some of

her costs and expenses, as the Registrar had requested on 4 November

on behalf of the Court. The Government and the Delegate of the

Commission made observations on this matter, and these reached the

registry on 18 January and 25 February 1988 respectively.

AS TO THE FACTS

I. The circumstances of the case

9. Mrs. Marlène Belilos, who is a Swiss citizen, lives in

Lausanne and was a student there at the material time.

1. The Lausanne Police Board

10. In a report of 16 April 1981, the Lausanne police laid an

information against her for having contravened the municipality's

General Police Regulations by having taken part in a demonstration in

the streets of the city on 4 April for which permission had not been

sought in advance. The march had been organised by the "Lausanne

bouge" ("Lausanne on the move") movement, which on the preceding days

had distributed leaflets calling on people to join the demonstration,

and some 60 or 70 people had taken part; they were requesting that the

municipality should provide an autonomous youth centre.

At a sitting held on 29 May, the municipal Police Board, in the

applicant's absence, imposed on her a fine of 200 Swiss francs (CHF).

11. Mrs. Belilos lodged an application under sections 36 et seq.

of the Vaud Municipal Decisions Act of 17 November 1969 to have that

decision set aside, and the Police Board held an initial hearing on

14 July. After reading out the police report, it heard the defendant

and then the policemen who had laid the information. In view of the

applicant's explanations, the Board adjourned its investigation of the

case to a later date in order to be able to hear a witness. On

26 August, it gave Mrs. Belilos a further hearing, and also heard

evidence from her former husband as a witness. He stated that at the

material time he was with his ex-wife in a Lausanne café, where he had

handed over to her the maintenance payment for their child.

12. The Police Board gave its decision on 4 September "without the

interested parties being present". In the "As to the facts" part of

its decision, it described the convening, the course and the

consequences of the relevant demonstration; it went on to list the

allegations made by Mrs. Belilos, who inter alia challenged the

legitimacy of the body giving judgment and denied that she had taken

part in the demonstration; thirdly, it mentioned the evidence given by

the defendant's ex-husband; and, lastly, it noted that the policemen

had confirmed their report and categorically denied the applicant's

claim that she had not taken part.

In the "As to the law" part of its decision the Police Board noted

that its jurisdiction could not be disputed and it concluded that it

had "satisfied itself in the course of its inquiries that the

defendant [had] indeed participated in the demonstration on

4 April 1981". Having regard to the fact, on the one hand,

that Mrs. Belilos had not played an active role but, on the other

hand, that this was not a first offence, the Board reduced the fine to

120 CHF; it also ordered her to pay costs of 22 CHF.

The decision was notified to the applicant by registered letter

on 15 September.

2. The Criminal Cassation Division of the Vaud Cantonal Court

13. Mrs. Belilos applied to the Criminal Cassation Division of the

Vaud Cantonal Court to have that decision declared null and void. She

claimed principally that in view of the requirements of Article 6

(art. 6) of the Convention, the Police Board had no power to make a

determination of the disputed offence; and in any event, she asked the

court to hear her former husband and to redetermine the facts fully.

The Criminal Cassation Division dismissed the appeal on

25 November 1981, holding:

"(...)

The applicant argued that the decision was not compatible with Art. 6

(art. 6) of the European Convention on Human Rights (ECHR), which

enshrines the right to a hearing by an independent and impartial

tribunal established by law, and that the reservations made when

Switzerland acceded to the Convention did not allow an administrative

authority, a fortiori where it was an agency of the executive that was

judge in its own cause, to determine a criminal charge, the judicial

review by the Cassation Division being moreover inadequate.

In a judgment of 9 June 1980, in the case of Marlène Belilos and

Others, this court stated that by virtue of the reservations made by

Switzerland, proceedings before an administrative authority relating

to the determination of a criminal charge were not covered by the

obligation to provide a public hearing and to pronounce judgment

publicly (see also Cass.: Leonelli, 31 July/16 October 1981;

Christinat, 23 May/6 August 1981).

As regards Art. 6 para. 1 (art. 6-1) ECHR, Switzerland made the

following declaration (RS [Compendium of Federal Law] O.101, p. 25):

'The Swiss Federal Council considers that the guarantee of fair trial

in Art. 6, paragraph 1 (art. 6-1), of the Convention, in the

determination of ... any criminal charge against the person in

question is intended solely to ensure ultimate control by the

judiciary over the acts or decisions of the public authorities

relating to ... the determination of such a charge.'

In its communication of 4 March 1974 concerning the Convention for the

Protection of Human Rights and Fundamental Freedoms, the Federal

Council stated that where the decision taken by an administrative

authority could be referred to a court not for a ruling on the merits

but solely for review of its lawfulness (pourvoi en nullité), the

question arose whether that review procedure satisfied the

requirements of Art. 6 (art. 6) of the Convention.

It answered this question in the affirmative, as Art. 6 para. 1

(art. 6-1) was intended only to ensure ultimate control by the

judiciary, and the judicial element of a fair trial seemed to be

sufficiently ensured in Swiss law as the Federal Court had derived

from the right to a hearing rules on the administration of justice

which corresponded to those listed in Art. 6 (art. 6) of the

Convention (FF [Federal Gazette] 1974 I p. 1032, Communication).

The fact that appeal proceedings are in written form without any oral

argument or taking of evidence is not contrary to Art. 6 (art. 6) ECHR

(Cassation Division of the Federal Court: Risse, 14.9.1981).

The Cassation Division therefore carries out the ultimate control by

the judiciary required by the European Convention on Human Rights,

subject to the reservations made by Switzerland, even if it cannot

hear witnesses.

..."

3. The Federal Court

14. The applicant lodged a public-law appeal against this decision

with the Federal Court. In her submission, Switzerland's

interpretative declaration in respect of the Convention (see

paragraph 29 below) did not mean that an administrative authority

such as the Police Board was empowered to determine the merits of a

criminal charge. Such a jurisdiction was conceivable only if judicial

review was ultimately available. This was not so in the present case,

however, as the Criminal Cassation Division of the Vaud Cantonal Court

and the Federal Court had limited powers, which did not normally allow

them to review questions of fact (on which the Police Board's findings

were final), for example by examining witnesses. Furthermore, under

section 12 of the Vaud Municipal Decisions Act the municipality could

delegate its powers to a senior police official, who was an agent of

the executive; that being so, the Police Board was acting as judge in

its own cause.

15. On 2 November 1982, the Federal Court (1st Public-Law

Division) delivered a judgment dismissing the appeal on the following

grounds:

"...

2. The guarantee of a fair trial provided for in Article 6 § 1

(art. 6-1) ECHR [European Convention on Human Rights] lays down inter

alia that 'everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal established by law...'.

(a) The sole issue raised by the appellant's complaint is whether

Article 6 (art. 6) ECHR precludes proceedings whereby the facts are

established by a body such as the Police Board, which is not an

independent tribunal. Contrary to that Board's statement in its

ruling of 18 January 1982, the appellant did not claim, even by

implication, that the Police Board was in this case an

(administrative) body lacking impartiality. In any event, such a

complaint was not formulated in terms sufficiently clear with

regard to section 90(1)(b) OJ [Federal Judicature Act].

(b) The scope of Article 6 § 1 (art. 6-1) ECHR must be examined in

the light of Switzerland's interpretative declaration, according to

which: 'the Swiss Federal Council considers that the guarantee of fair

trial in Article 6 § 1 (art. 6-1) of the Convention, ... is intended

solely to ensure ultimate control by the judiciary over the acts or

decisions of the public authorities ...'. (Article 1 § 1 (a) of the

Federal Decree of 3 October 1974 approving the ECHR, RO [Official

Collection of Federal Statutes] 1974, 2149.) In its communication of

4 March 1974 to the Federal Assembly, the Federal Council noted that

this interpretative declaration was formulated precisely with a view

to 'cases in which the decision taken by an administrative authority

may be referred to a court not for a ruling on the merits but solely

for review of its lawfulness (pourvoi en nullité)', on the basis of

the interpretation of Article 6 § 1 (art. 6-1) given by the President

of the European Commission of Human Rights (FF 1974 I p. 1032). The

Federal Court finds no grounds for departing from that interpretative

declaration (ATF [Judgments of the Swiss Federal Court] 107 Ia 167),

even though its validity and its scope have been contested by academic

writers (D. Brandle, Vorbehalte und auslegende Erklärungen zur

europaïschen Menschenrechtskonvention, Zürich thesis 1978,

pp. 113-114). Moreover, the European Court of Human Rights has also

acknowledged that Article 6 § 1 (art. 6-1) is complied with in so far

as a decision of an administrative authority may be subject to

ultimate control by the judiciary, since the guarantee of a fair trial

must be assessed having regard to the entire procedure (ATF 98 Ia 238;

cf. J. Raymond, 'La Suisse devant les organes de la CEDH', in RDS

[Revue de droit suisse] 98/1979 II p. 67, and the decisions cited

therein; D. Poncet, La protection de l'accusé par la Convention

européenne des Droits de l'Homme, p. 29, no. 78).

3. The Vaud legislature used the right conferred on cantons by

Article 345 § 1(2) CC [Swiss Criminal Code] to allow certain minor

offences to be tried by the municipal authority (section 45 of the

Local Authorities Act of 28 February 1956; sections 1 et seq.

MDA [Municipal Decisions Act]). According to section 41 MDA,

judicial review of such municipal decisions is effected by the

Cassation Division of the Cantonal Court, which may determine both

whether the correct procedure has been followed (in the case of a

recours en nullité - section 43 MDA) and whether the law has

been properly applied (in the case of a recours en réforme -

section 44 MDA). It does not therefore have full competence to

re-examine the facts. However, that is not necessary

under Article 6 § 1 (art. 6-1) ECHR provided that appeal lies to a

judicial authority which not only reviews the correctness of the

procedure - including 'whether there are serious doubts as to the

facts found' (section 43 (e)) - but may also be called upon to

consider complaints of 'incorrect application of the law' and of

'misuse of discretion in the application of the law' (section 44).

The Cantonal Court therefore enjoys a much more extensive power of

review than the Federal Court in a public-law appeal, where

jurisdiction is restricted to ensuring that a decision is not

arbitrary (cf. Schubarth, Die Artikel 5 und 6 (art. 5, art. 6) der

Konvention, insbesondere im Hinblick auf das schweizerische

Strafprozessrecht, RDS 94/1975 I, p. 498, nos. 119-122), since the

appeal which lies is not 'a mere cassation procedure' (J. Raymond,

op. cit., pp. 68-69, no. 81). Moreover, where the Cantonal Cassation

Division quashes a decision because there are serious doubts as to the

facts found (section 43(e) MDA), it may request the municipal

authority, to which it remits the case (section 52 MDA), to carry out

additional investigative measures. That in itself is sufficient to

show that the ultimate control by the judiciary of municipal decisions

in the Canton of Vaud is in conformity with Article 6 § 1 (art. 6-1)

ECHR, as interpreted in accordance with the declaration made by

Switzerland. The view advanced by P. Bischofberger, who appears to

argue that ultimate judicial control should cover both the law and the

facts (Die Verfahrensgarantien der Europaïschen Konvention zum Schutze

der Menschenrechte und Grundfreiheiten (Art. 5 und 6) (art. 5, art. 6)

in ihrer Einwirkung auf das schweizerische Strafprozessrecht, Zürich

thesis 1972, pp. 50-51), is not justified in view of the meaning of

the Federal Council's interpretative declaration, although it would be

desirable for offences of the kind at issue to be tried by a criminal

court.

Moreover, the appellant did not claim that the judicial review

of the instant case by the Cassation Division of the Cantonal

Court was open to criticism regarding its examination of the

lawfulness of the Police Board's decision of 4 September 1981."

(Judgments of the Swiss Federal Court, vol. 108, Ia, pp. 313-316)

II. The Police Board in Vaud cantonal law

16. In the Canton of Vaud, municipalities can delegate

responsibility for prosecuting and punishing minor offences to one or

three municipal councillors or, where the population is over ten

thousand, to a specialist civil servant or a senior police officer

(section 12 of the Municipal Decisions Act of 17 November 1969 - "the

1969 Act").

17. In Lausanne the Police Board consists of a single municipal

civil servant. He is a sworn official and as such "must discharge his

duties in person, diligently, conscientiously and loyally"

(Regulation 10 of the Local Government Staff Regulations). He can

withdraw from the case of his own accord or be challenged

(section 12 of the 1969 Act).

1. Powers

18. The Police Board can only impose fines (section 5 of the

1969 Act), and these cannot exceed 200 CHF for a first offence or

500 CHF for a subsequent offence. It is empowered to order the

offender ("dénoncé") to pay expenses (sections 5 and 34) but has no

power to award damages or costs against him (section 5).

19. In 1986, the Lausanne Police Board decided 22,761 individual

cases. Traffic offences - mainly parking offences - accounted for 91%

of these.

2. Procedure

20. If the Police Board considers that the facts have been

established and that the available information about the personal

situation of the offender is sufficient, it may take its decision

without summoning the person concerned to appear before it

(section 24 of the 1969 Act).

Where a hearing is held, the offender is entitled to consult the file

beforehand (section 23). He normally appears in person at the hearing

but may send a representative if he is expressly exempted from

attending in person (section 29).

21. The procedure for inquiring into the facts is laid down in

section 30, which reads as follows:

"The municipal authority shall hear the offender and, where

appropriate, the person who has laid the information against him.

Such parts of the police report as concern the offender shall be

made known to him or to the person representing or assisting him.

If the facts are disputed, the municipal authority shall carry out

the necessary verification, in particular by taking evidence from

witnesses it has summoned or sends for or whom the offender brings

before it; it may visit the locus.

Where necessary, it shall call upon the services of an interpreter.

For the rest, the municipal authority shall reach its own

conclusion as to the accuracy of the facts set out in the report."

22. The Police Board's decision is delivered immediately; if

convicted, the offender is informed of his right of appeal

(section 31), and the Board's decision is subsequently notified to

him in writing.

23. A convicted offender may apply to have the conviction set

aside (opposition) if, as in the instant case, he was not summoned to

appear at a hearing or was tried in absentia (section 36). In such

cases the original decision ceases to have validity (section 39) and

the Police Board reopens the proceedings by summoning the person

concerned to a hearing.

3. Forms of appeal

24. Criminal law in the Canton of Vaud does not allow for an

ordinary appeal (appel) against Police Board decisions but does make

provision for two types of application to the Cassation Division of

the Cantonal Court, in addition to the possibility of applying to have

the decision set aside.

The first type - of which Mrs. Belilos availed herself (see

paragraph 13 above) - is provided for in section 43 of the 1969 Act:

"An application for a declaration of nullity (recours en nullité)

may be made on grounds of the following procedural irregularities:

(a) where the municipal authority has made a determination of fact

in respect of which it had no statutory competence by reason of

territorial jurisdiction or the subject-matter;

(b) where process has not been properly served on the offender;

(c) where some other vital procedural rule has been disregarded in

such a way as to affect the impugned decision;

(d) where the decision being challenged discloses omissions or

inconsistencies such that the Cassation Division is unable to

determine the ground of appeal;

(e) where there are serious doubts as to the facts found."

In cases which come under paragraph (a) and in which prosecution of

the offence is mandatory, the Cassation Division refers the case to

the public prosecutor's office (section 51, first paragraph); it

declares the impugned decision to be null and void without referring

the case "where prosecution of the offence is not mandatory or is

clearly time-barred" (section 51, second paragraph). In the other

eventualities it "shall remit the case to the municipal authority for

a fresh decision" (section 52).

Section 44 provides for a second type of application, not made in the

instant case, namely an appeal on points of law (recours en réforme)

"on grounds of incorrect application of the law or of misuse of

discretionary powers in the application of the law". If it allows the

appeal, "the Cassation Division shall substitute its own decision

taken on the basis of the facts established at first instance, save

for any manifest errors, which it shall rectify of its own motion"

(section 53).

25. When such an application or appeal is made, the Police Board

forwards it without delay to the Cantonal Court together with the case

file. The file must (under section 46) contain: the police report(s);

a copy of the summons, together, if necessary, with the

acknowledgement of receipt of it; a copy of the decision; the envelope

containing the application or appeal, if it was sent by post; possibly

the other documents relating to the offence in question; and a copy of

the municipal regulations applied or a copy of the administrative

decision which has not been complied with. The Board may enclose

"determinations" on the applications.

26. In 1986, the Vaud Cantonal Court registered twenty-eight such

applications and appeals against decisions of the Lausanne Police

Board. By 31 December of that year, it had rejected three of them in

limine, dismissed sixteen and allowed one, remitting the case to the

Police Board; the other eight were still pending.

27. A public-law appeal lies to the Federal Court against

judgments of the Criminal Cassation Division of the Cantonal Court,

and on such an appeal the Federal Court's power of review is

restricted to ensuring that there has been no arbitrariness (see

paragraph 15 above).

Five such appeals relating to decisions by the Lausanne Police Board

were heard in 1986; the Federal Court declared all of them

inadmissible.

III. Switzerland's declaration on the interpretation of

Article 6 § 1 (art. 6-1) of the Convention

1. Wording

28. On 28 November 1974, the Head of the Federal Political

Department - which has since become the Federal Department of Foreign

Affairs - deposited the instrument of ratification of the Convention

with the Secretary General of the Council of Europe (pursuant to

Article 66 § 1, third sentence) (art. 66-1). The instrument

reproduced, mutatis mutandis, the wording traditionally used by

Switzerland in such cases:

"The Swiss Federal Council, having seen and considered the

Convention for the Protection of Human Rights and Fundamental

Freedoms of 4 November 1950, ... which was approved by the Federal

Houses on 3 October 1974, declares that the Convention aforesaid is

ratified, with the following reservations and interpretative

declarations ...".

The reservations were made in respect of Articles 5 and 6 (art. 5,

art. 6) - the first one was withdrawn in 1982 -, while the

declarations related to paragraphs 1 and 3 (c) and (e) of Article 6

(art. 6-1, art. 6-3-c, art. 6-3-e).

29. Only the declaration on the interpretation of Article 6 § 1

(art. 6-1) is at issue in the instant case; it reads:

"The Swiss Federal Council considers that the guarantee of fair

trial in Article 6, paragraph 1 (art. 6-1) of the Convention, in the

determination of civil rights and obligations or any criminal

charge against the person in question is intended solely to ensure

ultimate control by the judiciary over the acts or decisions of the

public authorities relating to such rights or obligations or the

determination of such a charge."

2. Preparatory work

(a) The Federal Council's report of 9 December 1968 to the Federal

Assembly

30. On 9 December 1968, the Federal Council submitted to the

Federal Assembly a detailed report on the Convention (Federal Gazette,

1968, vol. II, pp. 1069-1198). In it the Federal Council stressed

the need to make several reservations and also a declaration on the

interpretation of Article 6 § 3 (c) and (e) (art. 6-3-c, art. 6-3-e);

it did not, however, mention any need for a similar declaration in

respect of Article 6 § 1 (art. 6-1).

(b) The Federal Council's supplementary report of 23 February 1972 to

the Federal Assembly

31. In a supplementary report which it sent to the Federal

Assembly on 23 February 1972, the Federal Council returned to the

question of reservations and interpretative declarations:

"...

6. In our report of 9 December 1968 we recognised that when

ratifying the Convention, Switzerland should make, in addition to

the aforementioned five reservations, a declaration on the

interpretation of Article 6 § 3 (c) and (e) (art. 6-3-c,

art. 6-3-e), which relate to free legal assistance and the free

assistance of an interpreter (FF 1868 II 1121)....

7. Since the publication of our previous report, a fresh

difficulty has arisen which might lead Switzerland to make an

additional reservation when ratifying the Convention. In its

judgment of 16 July 1971 in the Ringeisen case, the European

Court of Human Rights gave its interpretation of the concept of

'the determination of ... civil rights and obligations' in

Article 6 § 1 (art. 6-1)....

The Court's tendency to give a broad meaning to the word 'civil'

raises tricky problems for Switzerland, where administrative

authorities determine civil-law disputes and intervene in private-law

relations. In order to ensure that a wide conception of civil

disputes (la contestation de caractère civil) does not have

repercussions on the organisation of public administration and of the

courts in the cantons, it will probably be necessary to make a

reservation concerning the scope of Article 6 (art. 6) when ratifying

the Convention. The wording of such a reservation will depend partly

on the outcome of studies yet to be made of the subject and partly on

any developments in the case-law of the Commission or the Court. We

shall have an opportunity of determining our attitude to the subject

in the communication we shall be sending you in due course concerning

ratification of the Convention.

..." (Federal Gazette, 1972, vol. I, pp. 995-996).

The Federal Political Department communicated the supplementary report

officially to the Council of Europe's Directorate of Legal Affairs.

(c) The Federal Council's communication of 4 March 1974 to the

Federal Assembly

32. The communication foreshadowed in 1972 reached the Assembly on

4 March 1974. In it the Federal Council dealt, among other things,

with the "effects on the system of public administration and of the

courts in the cantons of the guarantee of a right of access to the

courts in Article 6 (art. 6) of the Convention":

"In our supplementary report of 23 February 1972 we noted among other

things that when the Convention was being ratified, it would probably

be necessary to make a reservation concerning the scope of the first

sentence of Article 6 § 1 (art. 6-1), whereby ... We reserved the

right to study this problem in greater detail, however, and to

determine our attitude to the matter in this communication.

In its judgment of 16 July 1971 in the Ringeisen case the European

Court of Human Rights stated that for Article 6 § 1 (art. 6-1) of the

Convention to be applicable to a case it was not necessary that both

parties to the proceedings should be private persons. The wording of

Article 6 § 1 (art. 6-1) was far wider. The French expression

'contestations sur des droits et obligations de caractère civil'

covered all proceedings the outcome of which was decisive for private

rights and obligations. The English text, 'determination of ... civil

rights and obligations', confirmed this interpretation. In the

Court's opinion, the character of the legislation which governed how

the matter was to be determined (civil, commercial, administrative

law, etc.) or of the authority which was invested with jurisdiction in

the matter (ordinary court, administrative body, etc.) was therefore

of little consequence.

In order to assess the exact scope of this provision, it has to be

asked at what stage of the domestic proceedings the requirements of

Article 6 § 1 (art. 6-1) have to be satisfied. Valuable clues are

given in the address one of the delegates of the European Commission

of Human Rights made to the Court in the Ringeisen case. According to

Mr. Fawcett, Article 6 (art. 6) of the Convention is designed only to

secure ultimate judicial control of actions or decisions of public

authority which affect, in particular, civil rights and obligations.

This judicial control is furthermore limited: the relevant provision

calls only for a fair hearing and not for a determination of the

merits. In other words, it is not necessary that the administrative

authorities themselves should comply with the requirements of

Article 6 (art. 6). But where their decisions have the effect of

confirming, modifying or annulling civil rights or obligations, there

must in the whole process be a judicial element of fair hearing.

...

Lastly, in criminal law, Article 345 § 1(2) of the Swiss Criminal Code

provides that minor offences can be tried by an administrative

authority. Furthermore, Article 369 of the same Code empowers the

cantons to appoint an administrative body to try offences committed by

children or adolescents. In our report of 9 December 1968 on the

Convention we said that, despite these departures from the principle

of separation of powers, independence and impartiality are guaranteed

in the aforementioned cases in other ways. In several cantons, for

instance, the administrative authorities called upon to exercise

judicial functions are elected by the people and are independent of

the executive. In those circumstances they can be equated with a

'tribunal' within the meaning of Article 6 § 1 (art. 6-1) of the

European Convention on Human Rights. Moreover, a member of the public

who is not satisfied with an administrative decision can very often

ask to have his case heard by a court under ordinary procedure. The

court then gives judgment on the merits of the charge and acquits or

convicts. Where, on the other hand, the decision taken by an

administrative authority can be referred to a court not for a ruling

on the merits but solely for review of its lawfulness (pourvoi en

nullité), the question arises whether this review procedure satisfies

the requirements of Article 6 (art. 6) of the Convention.

Following the interpretation given to Article 6 § 1 (art. 6-1) by the

current President of the European Commission of Human Rights, we

consider that that provision is intended only to ensure ultimate

control by the judiciary over the acts or decisions of the public

authorities. Moreover, it requires only a fair hearing and not a

decision on the merits. ..." (Federal Gazette, 1974, vol. I,

pp. 1030-1033).

The Federal Political Department forwarded the communication

officially to the Council of Europe's Directorate of Legal Affairs.

(d) Federal Decree of 3 October 1974

33. The Federal Assembly approved the Convention - and, at the

same time, the reservations and interpretative declarations - on

3 October 1974. The Federal Decree recording the fact is worded as

follows:

"The Federal Assembly of the Swiss Confederation,

Having regard to Article 8 of the Constitution;

Having regard to the Federal Council's communication of 4 March 1974,

Hereby decrees:

Article 1

The following are approved:

(a) The Convention for the Protection of Human Rights and Fundamental

Freedoms of 4 November 1950, as amended by Protocol No. 3 (P3)

of 6 May 1963, amending Articles 29, 30 and 34 (art. 29, art. 30,

art. 34) of the Convention, and by Protocol No. 5 (P5) of

20 January 1966, amending Articles 22 and 40 (art. 22, art. 40) of the

Convention, with the following reservations and declarations:

...

- Declaration on the interpretation of Article 6 § 1 (art. 6-1):

[see paragraph 29 above]

..." (Official Collection of Federal Statutes, 1974, pp. 2148-2149).

PROCEEDINGS BEFORE THE COMMISSION

34. Mrs. Belilos applied to the Commission on 24 March 1983

(application no. 10328/83). She complained that she had not been

tried by an independent and impartial tribunal within the meaning of

Article 6 § 1 (art. 6-1) of the Convention, with full jurisdiction to

determine questions both of law and of fact.

35. The Commission declared the application admissible on

8 July 1985. In its report of 7 May 1986 (made under Article 31)

(art. 31), it expressed the unanimous opinion that there had been a

breach of Article 6 § 1 (art. 6-1).

The full text of the Commission's opinion is reproduced as an annex to

this judgment.

FINAL SUBMISSIONS TO THE COURT

36. In her supplementary memorial of 4 May 1987, the applicant

requested the Court to make the following ruling:

"I. Official notice is given that the applicant has in this

instance been the victim of a violation of Article 6 § 1

(art. 6-1) of the Convention on the grounds that her dispute was not

judicially decided.

II. Switzerland is called upon to take all necessary measures

to cancel the fine imposed upon the applicant in the decision taken

by the Lausanne Police Board on 4 September 1981 and to repay

the applicant the sum of 120 CHF paid by her.

III. Switzerland is invited to take all necessary measures to

ensure that police boards no longer have the power to make the

final findings of fact in proceedings resulting in the imposition

of a fine and to amend the Vaud Municipal Decisions Act of

17 November 1969 to that effect.

IV. Switzerland is to pay Marlène Belilos the sum of 3,250 CHF

as costs for the Vaud cantonal proceedings and the Swiss national

proceedings, and 30,000 CHF as costs for the European

proceedings."

37. At the hearing the Government maintained the final submissions

in their memorial of 24 February 1987, in which they requested the

Court:

"A. As regards admissibility, to allow the preliminary

objection and declare that, by reason of the incompatibility of

the application with the international undertakings entered into by

Switzerland under Article 6 § 1 (art. 6-1) of the Convention, the

Court has no jurisdiction to consider the merits of the case;

B. As regards the merits, to declare that Switzerland's

interpretative declaration concerning Article 6 § 1 (art. 6-1) of the

Convention produces the legal effects of a validly adopted reservation

and that accordingly there has been no infringement of that provision

as it is applicable to Switzerland."

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

38. By way of a preliminary objection, the Government argued that

Mrs. Belilos's application was incompatible with the international

undertakings entered into by Switzerland under Article 6 § 1

(art. 6-1) of the Convention. They relied on the interpretative

declaration made when the instrument of ratification was deposited,

which is worded as follows:

"The Swiss Federal Council considers that the guarantee of fair

trial in Article 6, paragraph 1 (art. 6-1) of the Convention, in the

determination of civil rights and obligations or any criminal

charge against the person in question is intended solely to ensure

ultimate control by the judiciary over the acts or decisions of the

public authorities relating to such rights or obligations or the

determination of such a charge."

In their submission, the Commission should have declined to exercise

jurisdiction as the application related to a right that was not

recognised by the Confederation.

39. The Court will examine the nature of the declaration in issue

and then, if appropriate, its validity for the purposes of Article 64

(art. 64) of the Convention, which reads as follows:

"1. Any State may, when signing the Convention or when depositing its

instrument of ratification, make a reservation in respect of any

particular provision of the Convention to the extent that any law then

in force in its territory is not in conformity with the provision.

Reservations of a general character shall not be permitted under this

Article (art. 64).

2. Any reservation made under this Article (art. 64) shall contain a

brief statement of the law concerned."

A. The nature of the declaration

40. The applicant contended that the declaration could not be

equated with a reservation. When ratifying the Convention,

Switzerland had made two "reservations" and two "interpretative

declarations"; in so doing, it had adopted a terminology that had been

chosen quite deliberately. A reservation resulted in the Convention's

being inapplicable in respect of a particular point, whereas a

declaration on the other hand was only provisional in nature, pending

a decision of the Strasbourg organs. Mrs. Belilos further argued that

when in 1982 the Federal Department of Foreign Affairs had announced

the withdrawal of the reservation in respect of Article 5 (art. 5) it,

had stated that only one reservation remained, the one in respect of

the rule that hearings are to be held in public and judgments

pronounced publicly. Having made the distinction in full knowledge of

the circumstances, Switzerland could not now depart from it.

41. The Commission likewise reached the conclusion that the

declaration was a mere interpretative declaration which did not have

the effect of a reservation (see its report, § 102); it based its view

both on the wording of the declaration and on the preparatory work.

The latter showed that Switzerland's intention had been to deal with

the situation arising as a result of the Court's judgment of

16 July 1971 in the Ringeisen case (Series A no. 13), i.e. in respect

of administrative proceedings relating to civil rights; it did not, on

the other hand, provide any indication of how the declaration might be

applied as a reservation in the case of criminal proceedings. More

generally, the Commission considered that if a State made both

reservations and interpretative declarations at the same time, the

latter could only exceptionally be equated with the former.

42. In the Government's submission, on the other hand, the

declaration was a "qualified" interpretative declaration. It

consequently was in the nature of a reservation within the meaning of

Article 2 § 1 (d) of the Vienna Convention on the Law of Treaties of

23 May 1969, which provides:

"'Reservation' means a unilateral statement, however phrased or named,

made by a State, when signing, ratifying, accepting, approving or

acceding to a treaty, whereby it purports to exclude or to modify the

legal effect of certain provisions of the treaty in their application

to that State."

43. The first of the considerations relied on by the Government

was the purpose of the declaration. They claimed that it was to

preserve proceedings which, while coming within the "civil" or

"criminal" ambit of Article 6 § 1 (art. 6-1), initially took place

before administrative authorities, in such a way that the court or

courts to which appeal lay did not - or did not fully - review the

facts. The declaration thus reflected the wish to respect the

cantons' distinctive features, recognised in the Federal Constitution,

with regard to procedure and the administration of justice. At the

same time, the declaration was a "reaction" to the Ringeisen judgment

previously cited.

This argument is closely related to the one based on the preparatory

work, which the Court will consider below (see paragraph 48).

44. Another factor, in the Government's submission, was the

wording used in the declaration which clearly had a restrictive

character.

The Court acknowledges that the wording of the original French text of

the declaration, though not altogether clear, can be understood as

constituting a reservation.

45. In order to demonstrate that the declaration amounted to a

reservation, the Government further relied on the fact that

Switzerland's reservations and interpretative declarations went

through identical processes with regard to establishing the grounds

for their adoption, to their formulation and to their inclusion in the

federal decree approving the Convention, which was adopted on

3 October 1974 by the Federal Assembly (see paragraph 33 above). The

same procedure had been followed when the instrument of ratification

was deposited (see paragraph 28 above).

The Court does not find this argument convincing. The fact that the

making of interpretative declarations coincides with the making of

reservations, that is to say takes place when the Convention is signed

or when the instrument of ratification is deposited (Article 64)

(art. 64), reflects normal practice. It is therefore not surprising

that the two sets of texts, even if they differed in their legal

character, should have been incorporated in a single parliamentary

instrument and subsequently in a single instrument of ratification.

46. The Government also prayed in aid the Swiss practice in

respect of reservations and interpretative declarations under which

the criteria for distinguishing between the two concepts were not

absolute. In the event of doubt as to the real meaning of a clause in

a convention (for example where there was no established case-law on a

point), the Federal Council would recommend making an interpretative

declaration in order, where appropriate, to change the legal effect of

the clause concerned. In the instant case, Switzerland's two

declarations had the same effect as reservations; they amounted to

qualified declarations and not mere declarations.

Varying terminology was, the Government continued, a characteristic of

the practice followed in the Convention system too. Nor, they said,

was there anything surprising about that situation: international

treaties had not - at least until recently - made any specific

provision for the making of declarations; even today, the generic

concept of a "reservation" in international law still embraced any

unilateral declaration designed to preclude or modify the legal effect

of certain treaty provisions in respect of the State making the

reservation.

The Court cannot see how a lack of uniformity of this kind - even

though it illustrates the relativity of the distinction - could in

itself justify describing the declaration in issue as a reservation.

47. The Government derived an additional argument from the fact

that there had been no reaction from the Secretary General of the

Council of Europe or from the States Parties to the Convention.

The Secretary General had made no comment when he notified the Council

of Europe member States of the reservations and interpretative

declarations contained in Switzerland's instrument of ratification.

Yet, so the Government maintained, it was open to him as the

depositary, who had important prerogatives, to ask for clarifications

and to make observations on the instruments he received, as he had

shown in the case of the declaration made under Article 25 (art. 25)

by the Turkish Government on 28 January 1987. As far as the

reservations and interpretative declarations of Switzerland were

concerned, it had, when they were in the process of formulation, made

extensive enquiries of the Council of Europe's Legal Affairs

Directorate so as to ensure that there was no objection from the

Secretary General.

As to the States Parties, they did not deem it necessary to ask

Switzerland for explanations regarding the declaration in question and

had therefore considered it acceptable as a reservation under

Article 64 (art. 64) or under general international law. The Swiss

Government inferred that it could in good faith take the declaration

as having been tacitly accepted for the purposes of Article 64

(art. 64).

The Court does not agree with that analysis. The silence of the

depositary and the Contracting States does not deprive the Convention

institutions of the power to make their own assessment.

48. Lastly, the Government laid great emphasis on the preparatory

work done on the declaration. They saw it as being of decisive

importance, just as, they claimed, the Commission and the Committee of

Ministers had done in connection with the Temeltasch application

against Switzerland (no. 9116/80, report of 5 May 1982 and

Resolution DH (83) 6, Decisions and Reports no. 31, pp. 138-153).

They referred in particular to two documents which the Federal Council

had sent to the Federal Assembly and which related to the Convention:

the supplementary report of 23 February 1972 and the communication of

4 March 1974 (see paragraphs 31-32 above).

Like the Commission and the Government, the Court recognises that it

is necessary to ascertain the original intention of those who drafted

the declaration. In its view, the documents show that Switzerland

originally contemplated making a formal reservation but subsequently

opted for the term "declaration". Although the documents do not make

the reasons for the change of nomenclature entirely clear, they do

show that the Federal Council has always been concerned to avoid the

consequences which a broad view of the right of access to the courts

- a view taken in the Ringeisen judgment - would have for the system of

public administration and of justice in the cantons and consequently

to put forward the declaration as qualifying Switzerland's consent to

be bound by the Convention.

49. The question whether a declaration described as

"interpretative" must be regarded as a "reservation" is a difficult

one, particularly - in the instant case - because the Swiss Government

have made both "reservations" and "interpretative declarations" in the

same instrument of ratification. More generally, the Court recognises

the great importance, rightly emphasised by the Government, of the

legal rules applicable to reservations and interpretative declarations

made by States Parties to the Convention. Only reservations are

mentioned in the Convention, but several States have also (or only)

made interpretative declarations, without always making a clear

distinction between the two.

In order to establish the legal character of such a declaration, one

must look behind the title given to it and seek to determine the

substantive content. In the present case, it appears that Switzerland

meant to remove certain categories of proceedings from the ambit of

Article 6 § 1 (art. 6-1) and to secure itself against an

interpretation of that Article (art. 6-1) which it considered to be

too broad. However, the Court must see to it that the obligations

arising under the Convention are not subject to restrictions which

would not satisfy the requirements of Article 64 (art. 64) as regards

reservations. Accordingly, it will examine the validity of the

interpretative declaration in question, as in the case of a

reservation, in the context of this provision.

B. The validity of the declaration

1. The Court's jurisdiction

50. The Court's competence to determine the validity under

Article 64 (art. 64) of the Convention of a reservation or, where

appropriate, of an interpretative declaration has not given rise to

dispute in the instant case. That the Court has jurisdiction is

apparent from Articles 45 and 49 (art. 45, art. 49) of the Convention,

which were cited by the Government, and from Article 19 (art. 19) and

the Court's case-law (see, as the most recent authority, the Ettl and

Others judgment of 23 April 1987, Series A no. 117, p. 19, § 42).

2. Compliance with Article 64 (art. 64) of the Convention

51. The Court must accordingly ascertain whether the relevant

declaration by Switzerland satisfied the requirements of

Article 64 (art. 64) of the Convention.

(a) Article 64 § 1 (art. 64-1)

52. Before the Commission the applicant conceded that the

interpretative declaration was not a reservation of a general

character, but before the Court she submitted the opposite. She now

maintained that the declaration sought to remove all civil and

criminal cases from the judiciary and transfer them to the executive,

in disregard of a principle that was vital to any democratic society,

namely the separation of powers. As "ultimate control by the

judiciary" was a pretence if it did not cover the facts, such a

system, she claimed, had the effect of excluding the guarantee of a

fair trial, which was a cardinal rule of the Convention.

Switzerland's declaration accordingly did not satisfy the basic

requirements of Article 64 (art. 64), which expressly prohibited

reservations of a general character and prohibited by implication

those which were incompatible with the Convention.

53. The Government relied on the two criteria set forth by the

Commission in its report of 5 May 1982 in the Temeltasch case and

asserted that Switzerland's declaration was not of a general

character.

They argued, in the first place, that it referred expressly to a

specific provision of the Convention, paragraph 1 of Article 6

(art. 6-1), even if it inevitably had consequences for paragraphs 2

and 3 (art. 6-2, art. 6-3), which contained guarantees that were

"constituent elements, among others, of the general notion of a fair

trial" (see the Colozza judgment of 12 February 1985, Series A no. 89,

p. 14, § 26).

In the second place, they argued that it was worded in a way that made

it possible to determine its scope clearly and that was sufficiently

precise for other States Parties and for the Convention institutions.

The Federal Council's intention had been to limit the extent of the

guarantee of a fair trial, in particular in cases in which an

administrative authority determined a criminal charge. It had in good

faith chosen the expression "ultimate control by the judiciary" to

denote a review of the cassation type, initiated by means of an

application for a declaration of nullity (pourvoi en nullité) and

confined to questions of law, i.e. examination of the propriety of the

public authority's decision from the point of view of its conformity

with the law. It had thus faithfully paraphrased - and extended to

the criminal aspect of Article 6 (art. 6) - the argument put forward

by Mr. Fawcett on behalf of the Commission minority in the Ringeisen

case. It was, moreover, the Government continued, wrong to criticise

the declaration - some fifteen years after it had been made - for

being general and vague, on the basis primarily of the case-law

subsequently developed by the Convention institutions, especially by

the Court in its judgment of 10 February 1983 in the Albert

and Le Compte case (Series A no. 58). Lastly, the concept of

"ultimate control by the judiciary" was not unknown to international

human-rights law, as was shown by France's reservation to Article 2 of

Protocol No. 7 (P7-2) to the Convention.

At the hearing before the Court the Government mentioned a third

point: compatibility with the object and purpose of the Convention.

They considered such compatibility to be beyond doubt in the instant

case, as the declaration related only to a particular aspect - not the

substance - of the right to a fair trial.

54. The Commission recognised that it was necessary to take

account of two circumstances: firstly, the preparatory work which

preceded ratification, from which it emerged that Switzerland wanted

to restrict the concept of a fair trial to a judicial review which did

not entail a full determination on the merits; secondly, the stage of

development of the case-law of the Convention institutions in 1974 -

the Court had not yet stated that Article 6 § 1 (art. 6-1) guaranteed

the "'right to a court' ... and [to] a determination by a tribunal of

the matters in dispute ..., both for questions of fact and for

questions of law" (see the Albert and Le Compte judgment previously

cited, Series A no. 58, p. 16, § 29).

However, the Commission continued, the words "ultimate control by the

judiciary" were ambiguous and imprecise. They created great

uncertainty as to the effects of the declaration concerned on the

application of paragraphs 2 and 3 of Article 6 (art. 6-2, art. 6-3),

particularly as regards decisions in criminal matters by

administrative authorities. In the Commission's view, the declaration

appeared to have the consequence that anyone "charged with a criminal

offence" was almost entirely deprived of the protection of the

Convention, although there was nothing to show that this had been

Switzerland's intention. At least in respect of criminal proceedings,

therefore, the declaration had general, unlimited scope.

55. The Court has reached the same conclusion. By "reservation of

a general character" in Article 64 (art. 64) is meant in particular a

reservation couched in terms that are too vague or broad for it to be

possible to determine their exact meaning and scope. While the

preparatory work and the Government's explanations clearly show what

the respondent State's concern was at the time of ratification, they

cannot obscure the objective reality of the actual wording of the

declaration. The words "ultimate control by the judiciary over the

acts or decisions of the public authorities relating to [civil] rights

or obligations or the determination of [a criminal] charge" do not

make it possible for the scope of the undertaking by Switzerland to be

ascertained exactly, in particular as to which categories of dispute

are included and as to whether or not the "ultimate control by the

judiciary" takes in the facts of the case. They can therefore be

interpreted in different ways, whereas Article 64 § 1 (art. 64-1)

requires precision and clarity. In short, they fall foul of the rule

that reservations must not be of a general character.

(b) Article 64 § 2 (art. 64-2)

56. In the applicant's submission, the interpretative declaration

did not comply with Article 64 § 2 (art. 64-2) either, as it did not

contain "a brief statement of the law concerned". No doubt the

Government would have encountered practical difficulties in drawing up

a list of the cantonal and federal laws which were not compatible with

Article 6 § 1 (art. 6-1) at the time, but that did not justify

disregarding an express condition of the Convention.

57. The Government conceded that the interpretative declaration

was not accompanied by a "brief statement of the law concerned", but

they maintained that the failure to comply with that formality could

not be of any consequence. They pointed to the very flexible practice

in the matter which they claimed had evolved with the tacit consent of

the depositary and of the other Contracting States, and they referred

to the cases of Ireland (reservation in respect of Article 6 § 3 (c)

(art. 6-3-c)) and Malta (declaration of interpretation of

Article 6 § 2 (art. 6-2)). Above all, they argued that Article 64 § 2

(art. 64-2) did not take account of the specific problems which faced

federal States and which could prove virtually insuperable. In order

to fulfil the obligation, Switzerland would have had to mention most

of the provisions in the twenty-six cantonal codes of criminal

procedure and in the twenty-six cantonal codes of civil procedure, and

even hundreds of municipal laws and regulations. This laborious

exercise would have confused the situation instead of clarifying it.

In sum, compliance with the letter of Article 64 § 2 (art. 64-2) would

have entailed more drawbacks than advantages and might even have given

rise to serious misunderstandings about the scope of Switzerland's

international undertaking. In any case, the references to the Swiss

Criminal Code in the Federal Council's supplementary report of

23 February 1972 to the Federal Assembly satisfied the requirement of

Article 64 § 2 (art. 64-2) at least indirectly.

58. In the Commission's view, the undeniable practical

difficulties put forward by the Government could not justify the

failure to comply with paragraph 2 of Article 64 (art. 64-2). The

latter applied to all the States Parties without any distinction,

whether they were unitary or federal and whether or not they had a

unified body of procedural law. Referring to its report of 5 May 1982

in the Temeltasch case, the Commission emphasised two points.

Firstly, paragraph 2 of Article 64 (art. 64-2) had, in its opinion, to

be read in the light of paragraph 1 (art. 64-1), which applied only to

a "law then in force" and prohibited reservations of a general

character; the details that the States concerned were asked to provide

helped to prevent acceptance of such reservations. Secondly, the

obligation to append to the reservation a brief statement of the laws

that a State wished to retain enabled the other Contracting Parties,

the Convention institutions and any other interested party to acquaint

themselves with such legislation. That feature was of not

inconsiderable value. The scope of the rule whose application the

State wished to prevent by means of a reservation or interpretative

declaration was a relevant factor here, because the wider the rule's

scope, the greater was the need to include a statement of the law.

59. The Court concurs on the whole with the Commission's view on

this point. It would add that the "brief statement of the law

concerned" both constitutes an evidential factor and contributes to

legal certainty. The purpose of Article 64 § 2 (art. 64-2) is to

provide a guarantee - in particular for the other Contracting Parties

and the Convention institutions - that a reservation does not go

beyond the provisions expressly excluded by the State concerned. This

is not a purely formal requirement but a condition of substance. The

omission in the instant case therefore cannot be justified even by

important practical difficulties.

C. Conclusion

60. In short, the declaration in question does not satisfy two of

the requirements of Article 64 (art. 64) of the Convention, with the

result that it must be held to be invalid. At the same time, it is

beyond doubt that Switzerland is, and regards itself as, bound by the

Convention irrespective of the validity of the declaration. Moreover,

the Swiss Government recognised the Court's competence to determine

the latter issue, which they argued before it. The Government's

preliminary objection must therefore be rejected.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

61. The applicant claimed to be the victim of a violation of

Article 6 § 1 (art. 6-1) of the Convention, which reads:

"In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law. Judgment shall be pronounced publicly

but the press and public may be excluded from all or part of the trial

in the interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the protection

of the private life of the parties so require, or to the extent

strictly necessary in the opinion of the court in special

circumstances where publicity would prejudice the interests of

justice."

In her view, the Lausanne Police Board was not an "independent and

impartial tribunal"; furthermore, neither the Criminal Cassation

Division of the Vaud Cantonal Court nor the Federal Court had provided

sufficiently extensive "ultimate control by the judiciary", as they

were unable to reconsider the findings of fact which had been made by

a purely administrative body, the Police Board.

62. The Court notes that those appearing before it did not dispute

the applicability of Article 6 § 1 (art. 6-1) in the instant case,

apart from the effect of Switzerland's interpretative declaration. On

the basis of the criteria which have been established in its case-law,

it likewise considers that the offence of which the applicant was

accused was a "criminal" one (see, mutatis mutandis, the Öztürk

judgment of 21 February 1984, Series A no. 73, pp. 18-21, §§ 50-54).

1. The Lausanne Police Board

63. Mrs. Belilos complained that the Police Board was subordinate

to the police authorities: consisting as it did of a single police

official, it could not but take the police authorities' side.

The Commission noted in its opinion merely that the applicant had been

fined by an administrative authority which made the final findings of

fact.

The Government did not challenge that but argued that the applicant

nonetheless received a fair trial. In the first place, the municipal

official had in practice a large measure of independence in the

execution of his duties, and Mrs. Belilos had never claimed, even by

implication, that he was not impartial. Furthermore, the proceedings

before him satisfied the essential requirements of Article 6 § 1

(art. 6-1): a defendant could ask for inquiries to be made into the

facts, and Mrs. Belilos had successfully availed herself of that

possibility; the Board always considered the evidence and had only

limited powers of punishment. Lastly, its decisions were not entered

in the criminal records.

64. According to the Court's case-law, a "tribunal" is

characterised in the substantive sense of the term by its judicial

function, that is to say determining matters within its competence on

the basis of rules of law and after proceedings conducted in a

prescribed manner (see, as the most recent authority, the judgment of

30 November 1987 in the case of H v Belgium, Series A no. 127, p. 34,

§ 50). It must also satisfy a series of further requirements

- independence, in particular of the executive; impartiality; duration

of its members' terms of office; guarantees afforded by its procedure -

several of which appear in the text of Article 6 § 1 (art. 6-1)

itself (see, inter alia, the Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 43, p. 24, § 55).

65. The 1969 Act describes the Police Board as a "municipal

authority". As to the Federal Court, its judgment of 2 November 1982

mentions "administrative authorities" (see paragraph 15 above), an

expression the Government adopted before the European Commission of

Human Rights. Even if such terms do not appear to be decisive, they

provide an important indication as to the nature of the body in

question.

66. However, the Police Board is given a judicial function in Vaud

law and the proceedings before it are such as to enable the accused to

present his defence. Its single member is appointed by the

municipality, but that is not sufficient to cast doubt on the

independence and impartiality of the person concerned, especially as

in many Contracting States it is the executive which appoints judges.

The appointed member, who is a lawyer from police headquarters, is a

municipal civil servant but sits in a personal capacity and is not

subject to orders in the exercise of his powers; he takes a different

oath from the one taken by policemen, although the requirement of

independence does not appear in the text of it; in principle he cannot

be dismissed during his term of office, which lasts four years.

Moreover, his personal impartiality has not been called into question

in the instant case.

67. Nonetheless, a number of considerations relating to the

functions exercised and to internal organisation are relevant too;

even appearances may be important (see, mutatis mutandis, the

De Cubber judgment of 26 October 1984, Series A no. 86, p. 14, § 26).

In Lausanne the member of the Police Board is a senior civil servant

who is liable to return to other departmental duties. The ordinary

citizen will tend to see him as a member of the police force

subordinate to his superiors and loyal to his colleagues. A situation

of this kind may undermine the confidence which must be inspired by

the courts in a democratic society.

In short, the applicant could legitimately have doubts as to the

independence and organisational impartiality of the Police Board,

which accordingly did not satisfy the requirements of Article 6 § 1

(art. 6-1) in this respect.

2. Available forms of appeal

68. In its judgment of 21 February 1984 in the Öztürk case, the

Court held:

"Having regard to the large number of minor offences, notably in the

sphere of road traffic, a Contracting State may have good cause for

relieving its courts of the task of their prosecution and punishment.

Conferring the prosecution and punishment of minor offences on

administrative authorities is not inconsistent with the Convention

provided that the person concerned is enabled to take any decision

thus made against him before a tribunal that does offer the guarantees

of Article 6 (art. 6)." (Series A no. 73, pp. 21-22, § 58; see also

the Lutz judgment of 25 August 1987, Series A no. 123, p. 24, § 57)

These considerations apply in the instant case too. That being so,

the Court must satisfy itself that the available forms of appeal made

it possible to remedy the deficiencies noted in the proceedings at

first instance.

(a) The Criminal Cassation Division of the Vaud Cantonal Court

69. Mrs. Belilos applied to the Criminal Cassation Division of the

Vaud Cantonal Court for a declaration of nullity under section 43 of

the 1969 Act (see paragraph 13 above) but she claimed that she had not

been able to bring her case before a court with unlimited jurisdiction

and, in particular, with power to review the facts and hear witnesses.

The Commission took the same view.

In the Government's submission, however, the judicial safeguards at

cantonal level, looked at as a whole, went appreciably beyond mere

review of the cassation type, notwithstanding that there was no

straightforward transfer of jurisdiction over questions of fact; they

were tantamount in practice to those afforded by a full-scale appeal.

Firstly, the applicant had not availed herself of the appeal on points

of law (recours en réforme) that she could have lodged "on grounds of

incorrect application of the law or of misuse of discretionary powers

in the application of the law" (section 44 of the 1969 Act - see

paragraph 24 above). From this the Government inferred that she had

not had any ground for complaint against the Police Board. Further,

the Criminal Cassation Division was empowered - and even obliged, if

there were "serious doubts" as to the facts (such as the applicant's

participation in the unauthorised demonstration) - to refer the case

back to the Police Board with a request that it should make further

investigations (sections 43 and 52 of the 1969 Act - see paragraph 24

above).

70. The remedy of an appeal on points of law is not relevant,

since, as the Government noted, it was not available for complaints

such as the applicant's.

As to the Criminal Cassation Division, regard must be had to its

judgment of 25 November 1981 (see paragraph 13 above). In it the

court cited the Federal Council's communication of 4 March 1974 to the

Federal Assembly, which referred to the case where "the decision taken

by an administrative authority can be referred to a court not for a

ruling on the merits but solely for review of its lawfulness (pourvoi

en nullité)". It also acknowledged that the proceedings before it

included neither oral argument nor the taking of evidence by, for

example, hearing witnesses. As was moreover indicated by the Federal

Court in its judgment of 2 November 1982, "It does not ... have full

competence to re-examine the facts" (see paragraph 15 above). These

various factors lead to the conclusion that the jurisdiction of the

Criminal Cassation Division of the Vaud Cantonal Court was not in the

instant case sufficient for the purposes of Article 6 § 1 (art. 6-1)

(see, inter alia, the Albert and Le Compte judgment previously cited,

Series A no. 58, p. 16, § 29).

(b) The Federal Court

71. In the applicant's view, the Federal Court could not remedy

the deficiency at the municipal and cantonal levels, because when

hearing a public-law appeal (the only one available in the instant

case), it did not re-examine the questions of fact or of law, as its

power was limited to ensuring that there had been no arbitrariness.

The Government recognised that Mrs. Belilos had not had full judicial

review of the issues of fact at this stage either. The Commission

shared that view.

72. The Court has reached the same conclusion. In this

connection, it takes account of the judgment given in the instant case

on 2 November 1982 by the Federal Court (see paragraph 15 above).

That court noted, after recapitulating the powers which the Cassation

Division of the Vaud Cantonal Court has under sections 43 (e) and 44

of the 1969 Act (see paragraph 24 above): "The Cantonal Court ...

enjoys a much more extensive power of review than the Federal Court in

a public-law appeal, where jurisdiction is restricted to ensuring that

a decision is not arbitrary." The Court has already noted, however,

that the review provided at the level of the Cantonal Court was

inadequate; so it was not possible subsequently to remedy the

shortcomings found at the level of the Police Board.

73. In conclusion, there was a violation of Article 6 § 1

(art. 6-1).

III. APPLICATION OF ARTICLE 50 (art. 50)

74. By Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

In her claims under this provision the applicant sought cancellation

and refund of the fine, amendment of the Vaud Municipal Decisions Act

and reimbursement of costs and expenses.

A. Cancellation and refund of the fine

75. Mrs. Belilos sought in the first place an order that

Switzerland should take "all the necessary measures to cancel the fine

imposed ... on 4 September 1981 by the Police Board of the

Municipality of Lausanne" and to reimburse her the relevant amount,

that is to say 120 CHF.

The Delegate of the Commission considered that restitution should be

ordered. As for the Government, they noted that the Court's judgments

did not have the effect of quashing the decisions of domestic courts,

and added that the correctness of the facts and the reasonableness of

the fine were not in issue before the Convention institutions.

76. The Court notes that the Convention does not give it

jurisdiction to direct the Swiss State - even supposing that the

latter could itself comply with such a direction - to cancel the

applicant's conviction and sentence (see, mutatis mutandis,

the Le Compte, Van Leuven and De Meyere judgment of 18 October 1982,

Series A no. 54, p. 7, § 13).

Furthermore, it cannot speculate as to what the outcome of the

proceedings in question would have been had the violation of the

Convention not occurred.

B. Legislative amendment

77. The applicant also requested the Court to ask Switzerland to

"take all the necessary measures to ensure that the police boards no

longer have the competence to make a final determination of the facts

in proceedings resulting in the imposition of a fine, the Vaud

Municipal Decisions Act of 17 November 1969 being altered to that

effect".

Neither the Agent of the Government nor the Delegate of the Commission

made any observations on this matter.

78. The Court notes that the Convention does not empower it to

order Switzerland to alter its legislation; the Court's judgment

leaves to the State the choice of the means to be used in its domestic

legal system to give effect to its obligation under Article 53

(art. 53) (see, mutatis mutandis, the Marckx judgment of 13 June 1979,

Series A no. 31, p. 25, § 58, and the F v. Switzerland judgment of

18 December 1987, Series A no. 128, p. 19, § 43).

C. Costs and expenses

79. Lastly, Mrs. Belilos claimed reimbursement of costs and

expenses incurred in the proceedings before the Swiss courts and

lawyer's fees and expenses in respect of the proceedings before the

Convention institutions.

An award may be made under Article 50 (art. 50) in respect of costs

and expenses that (a) were actually and necessarily incurred by the

injured party in order to seek, through the domestic legal system,

prevention or rectification of a violation, to have the same

established by the Commission and later by the Court and to obtain

redress therefor; and (b) are reasonable as to quantum (see, among

other authorities, the Olsson judgment of 24 March 1988, Series A

no. 130, p. 43, § 104).

1. Costs incurred in the national proceedings

80. The applicant's claim related to court fees which the domestic

courts required her to pay and to lawyer's fees, a total of 3,250 CHF.

As the Government made no objection and the Delegate of the Commission

did not make any comment, Switzerland should reimburse the applicant

3,250 CHF.

2. Costs incurred in the European proceedings

81. Mrs. Belilos claimed 25,000 CHF in expenses for her lawyer in

respect of the European proceedings. She said that this claim was

warranted by the importance of the case and the research he had had to

undertake.

The Government objected that she had not provided any concrete

evidence that such an amount had actually been incurred; they also

considered the sum to be too large, in view of the circumstances in

which the proceedings took place. They agreed, however, to an award

of a "lump sum" of 8,000 CHF, from which the sums received in legal

aid would fall to be deducted.

The Court notes, like the Delegate of the Commission, that the

applicant did not produce details, with supporting documents, of the

expenses not covered by legal aid. For this reason and having regard

to the Government's observations, the Court awards Mrs. Belilos the

uncontested sum of 8,000 CHF, less the 8,822 FF paid by the Council of

Europe.

82. The applicant put the amount of her own expenses not covered

by legal aid (travel within Switzerland, telephone and photocopies) at

3,000 CHF.

The Government challenged the accuracy of this figure, as it was

unsupported by any further particulars. They said, however, that in a

spirit of conciliation they were willing to pay 300 CHF.

The Delegate of the Commission did not express any opinion.

The Court considers it to be equitable that Switzerland should pay the

applicant 500 CHF for her own out-of-pocket expenses.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Rejects the Government's preliminary objection;

2. Holds that there has been a breach of Article 6 § 1 (art. 6-1)

of the Convention;

3. Holds that the respondent State is to pay the applicant in

respect of costs and expenses the sum of 11.750 (eleven thousand seven

hundred and fifty) Swiss francs, less 8,822 (eight thousand eight

hundred and twenty-two) French francs to be converted into Swiss

francs at the rate applicable on the day on which this judgment is

delivered;

4. Rejects the remainder of the claim for just satisfaction.

Done in English and in French and delivered at a public hearing in the

Human Rights Building, Strasbourg, on 29 April 1988.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and

Rule 52 § 2 of the Rules of Court, the separate concurring opinions of

Mr. Pinheiro Farinha and Mr. De Meyer are annexed to this judgment.

Initialled: R. R.

Initialled: M.-A. E.

CONCURRING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1. I concur in the result.

2. I cannot endorse the view that Switzerland's declaration of

interpretation of Article 6 (art. 6) of the Convention "can be

understood as constituting a reservation".

Switzerland deposited reservations and declarations on the same day,

in a single instrument of ratification. I do not think that it wished

to give the same weight and intent to both categories. It did two

different things.

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

I should like briefly to explain my vote as regards the preliminary

objection, which I, like all my colleagues, reject.

The object and purpose of the European Convention on Human Rights is

not to create, but to recognise, rights which must be respected and

protected even in the absence of any instrument of positive law.

It is difficult to see how reservations can be accepted in respect of

provisions recognising rights of this kind. It may even be thought

that such reservations, and the provisions permitting them, are

incompatible with the ius cogens and therefore null and void, unless

they relate only to arrangements for implementation, without impairing

the actual substance of the rights in question.

This is the only spirit in which Article 64 (art. 64) of the

Convention should be interpreted and applied; at most, that Article

(art. 64) may allow a State to give itself, as a purely temporary

measure, "at the time of" the signature or ratification of the

Convention, a brief space in which to bring into line any laws "then

in force in its territory" which do not yet sufficiently respect and

protect the fundamental rights recognised in the Convention.

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