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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> QUARANTA v. SWITZERLAND - 12744/87 [1991] ECHR 33 (24 May 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/33.html
Cite as: [1991] ECHR 33
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In the Quaranta case*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and
the relevant provisions of the Rules of Court***, as a Chamber
composed of the following judges:
Mr R. Ryssdal, President,
Mrs D. Bindschedler-Robert,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr R. Bernhardt,
Mrs E. Palm,
Mr A.N. Loizou,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 January and 23 April
1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 23/1990/214/276. The first number is
the case's position on the list of cases referred to the
Court in the relevant year (second number). The last two
numbers indicate the case's position on the list of cases
referred to the Court since its creation and on the list of
the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which
came into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force
on 1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 6 April 1990 and
then by the Government of the Swiss Confederation ("the
Government") on 27 June 1990, within the three-month period laid
down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)
of the Convention. It originated in an application (no.
12744/87) against Switzerland lodged with the Commission under
Article 25 (art. 25) by an Italian national, Mr Claudio Quaranta,
on 18 December 1986. In the proceedings before the Commission
the applicant was identified by the initial "Q."; however, he
subsequently agreed to the disclosure of his identity.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Switzerland
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Articles 45,
47 and 48 (art. 45, art. 47, art. 48). The object of the request
and of the application was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of
its obligations under Article 6 para. 3 (c) (art. 6-3-c).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30). The Italian Government,
having been informed by the Registrar of their right to intervene
in the proceedings (Article 48 (b) of the Convention and Rule 33
para. 3 (b)) (art. 48-b), did not indicate any intention of so
doing.
3. The Chamber 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 para. 3 (b)). On 26
April 1990, in the presence of the Registrar, the President drew
by lot the names of the other seven members, namely Mr F.
Matscher, Mr. C. Russo, Mr R. Bernhardt, Mr N. Valticos, Mrs E.
Palm, Mr A.N. Loizou and Mr J.M. Morenilla (Article 43 in fine of
the Convention and Rule 21 para. 4) (art. 43). Subsequently Mr
L.-E. Pettiti, substitute judge, replaced Mr Valticos, who was
prevented from taking part in the further consideration of the
case (Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Government, the Delegate of the Commission and the
applicant's representative on the need for a written procedure
(Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the applicant's memorial on
16 August 1990 and that of the Government on 16 October.
On 2 January 1991 the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 6 July 1990
that the oral proceedings should open on 21 January 1991
(Rule 38).
On 21 November 1990 the Commission and the applicant lodged
various documents.
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Boillat, Head of the European Law and
International Affairs Section, Federal
Office of Justice, Agent,
Mr C. Vautier, a former Vaud cantonal judge,
Mr F. Schürmann, a member of the European Law and
International Affairs Section, Federal Office
of Justice, Counsel;
(b) for the Commission
Mr F. Martinez, Delegate;
(c) for the applicant
Mr J. Lob, avocat, Counsel.
The Court heard addresses by Mr Boillat and Mr Vautier for
the Government, by Mr Martinez for the Commission and by Mr Lob
for the applicant, as well as their replies to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
7. Mr Quaranta, who is an Italian national, was born in 1962 at
Scorrano (Lecce). He arrived in Switzerland at a very young age,
with his parents. He resides at Vevey in the Canton of Vaud,
where he pursues the occupation of assistant plumber.
8. Between 1975 and 1978 he was placed in various homes for
juveniles. In December 1978 he was made the subject of an
educational assistance order by decision of the President of the
Lausanne Juvenile Court. On his return to his parents' home, he
began, in August 1979, a plumber's apprenticeship but failed to
complete it. He subsequently worked for a number of local
companies.
On 5 March 1982 the Vevey District Criminal Court gave him a
suspended sentence of ten months' imprisonment, with three years
probation, for aggravated theft, robbery, criminal damage and
taking and driving away a motor vehicle without a driving
licence. The court decided to treat him on the same footing as
his accomplice and accepted his plea of diminished responsibility
(Article 11 of the Swiss Penal Code), but without ordering an
expert psychiatric opinion; it also took into consideration his
youth, the short duration of his criminal activity, his personal
situation at the time of the offences, particularly as regards
his emotional insecurity, and the lasting improvement observed in
his behaviour. This decision is not here in issue.
A. The proceedings before the Vevey District Criminal Court
9. The applicant, who was suspected of an offence under the
Federal Misuse of Drugs Act of 3 October 1951 ("the 1951 Act"),
appeared on 10 March 1985 before the investigating judge ("juge
informateur") of the Vevey-Lavaux district. In the course of
this sole examination, he requested free legal assistance
(Article 104 of the Vaud Code of Criminal Procedure - see
paragraph 18 below).
On 23 May 1985 the investigating judge communicated the
application to the President of the Criminal Court who rejected
it (Article 107 of the Vaud Code of Criminal Procedure - see
paragraph 18 below) on 31 May on the grounds that "the needs of
the defence [did] not require ... the provision of free legal
assistance" and that "the case [did] not give rise to particular
difficulties". Mr Quaranta was informed of this decision on 3
June and, although advised of his right to appeal against it
within ten days to the indictments tribunal, he did not do so.
On 5 June 1985 he went to the Criminal Court to reiterate
his request. By a letter of 7 June the registrar informed him
that he could not lodge such a request until his file had reached
the court.
10. On 23 August 1985 the investigating judge committed the
applicant for trial in the Vevey Criminal Court, charged with
offences under Articles 19 para. 1, 3rd, 4th and 5th indents, and
19 (a) para. 1 of the 1951 Act (see paragraph 19 below).
11. On 17 October 1985 the applicant repeated his request for
free legal assistance, but on 30 October the President of the
Criminal Court refused it for the same reasons as on 31 May
(see paragraph 9 above).
12. The hearing began on 12 November 1985 at 2.30 p.m.; it
lasted only twenty-five minutes. The applicant appeared in
person without the assistance of a lawyer. No representative of
the public prosecutor's office participated in the court
proceedings. The main documents in the file were read out,
including the committal order. Mr Quaranta answered the
President's questions and added a few words in his defence.
The same day, after having deliberated, the court found the
applicant guilty of taking drugs and drug trafficking and on this
account sentenced him to six months' imprisonment; the sentence
was not suspended. In addition, having stressed the relative
seriousness of the offences, committed while on probation under
the 1982 decision, it revoked the suspension order (Article 41
para. 3 of the Swiss Criminal Code) and ordered the activation of
the previous sentence (see paragraph 8 above), from which the
five days that the accused had spent in detention on remand were
to be deducted.
In the grounds of the judgment the court noted that the
applicant had taken hashish daily since 1975 and that from the
summer of 1983 to spring 1985 he had bought, in small quantities,
2 kg of this drug, most of which he had sold. It considered that
a heavy penalty was called for because of the large quantity of
hashish involved and the applicant's profit-making intention.
However, in mitigation, it took into account his "very
precarious" financial position during the period in question; he
was unemployed and he lived, together with his family, on social
security benefit.
B. The proceedings in the Criminal Court of Cassation of the
Vaud Cantonal Court
13. Through a lawyer, whose services he paid for himself, Mr
Quaranta appealed to the Court of Criminal Cassation of the Vaud
Cantonal Court.
He pleaded primarily that the court should quash the
judgment of 12 November 1985. In his view, his youth, his lack
of vocational training and his two previous convictions (see
paragraph 8 above) had made the presence of a lawyer necessary
for his defence. Furthermore, the contested decision was, he
claimed, flawed by reason of the criminal court's failure to
state why it had considered that the subjective conditions for
suspending the sentence were not satisfied.
In the alternative the applicant asked the Court of
Cassation to vary the decision. He argued that the trial court
had misapplied Article 41 of the Swiss Criminal Code inasmuch as,
on account of his age and the improvement observed in his
behaviour, he should have been left a last chance and been given
a further suspended sentence.
14. On 27 January 1986 the Criminal Court of Cassation dismissed
the appeal on the following grounds:
"Application to have the decision quashed (recours en
nullité)
...
In a judgment, Coindet, of 11 November 1983 ... the First
Public-Law Chamber of the Federal Court laid down the
following principles:
The conditions set forth in Article 104 para. 2 CCP [Code
of Criminal Procedure] - the needs of the defence in a
criminal prosecution - are the same as those laid down in
the case-law concerning the right to free legal assistance
as it may be inferred from Article 4 of the Constitution.
The accused must be provided with defence counsel where the
sentence which he may expect on conviction cannot be
suspended because of its length, or where there is a
likelihood of an order confining him to a non-penal
institution [mesure privative de liberté]; in other cases
such a right may be recognised under Article 4 of the
Constitution only where, in addition to the relative
seriousness of the case, there are special difficulties from
the point of view of the establishment of the facts or the
legal issues raised; it is then necessary to take account of
the accused's capacities, his experience in the legal field
and the measures which appear necessary, in the specific
case, to provide for his defence, in particular as regards
the evidence which he will have to produce.
...
In this instance, the length of the term of imprisonment
did not in itself rule out the possibility of a suspended
sentence. Moreover, the appellant does not claim that free
legal assistance was necessary because he expected to
receive a sentence which could not be suspended by reason of
its length; there was no difficulty in the establishment of
the facts, which, as the appellant states in his memorial,
'are admitted in their large majority'; nor does the
appellant rely on legal difficulties, and he is correct in
not doing so; as regards the reasons relating to the
accused's personal situation, the fact that he is a young
adult within the meaning of Articles 100-100 ter of the
Criminal Code, and has already been convicted, cannot be
regarded as constituting a particular difficulty.
The submission is therefore unfounded and must fail.
...
In so far as the appellant seeks to show that the decision
was flawed with regard to points of fact which constituted
the basis of the reasoning of the first-instance court in
its refusal to suspend the sentence, it may be accepted that
this submission raises a question of nullity. But it is
unfounded. In fact, in order to establish whether the
subjective conditions for suspending a sentence are
satisfied, the trial judge must determine whether there are
prospects for the defendant's lasting improvement, having
regard to his past history and his character (Arrêts du
Tribunal fédéral, [ATF, official reports of the judgments of
the Swiss Federal Court] 101 IV 258, ground 1; Federal
Court: Meyer, 29.11.1983, ad Cass. : 7.10.1983). In this
instance the trial court noted the appellant's past history
and found that he took and trafficked in drugs. As regards
his character, it described his curriculum vitae, his family
situation, his reputation and his financial position. The
trial court therefore gathered together all the necessary
information to make a prognosis. Consequently, the
complaint that the decision was flawed in this respect is
unfounded and the application to have the decision quashed
must fail.
...
3. Application to have the decision varied (recours en
réforme)
...
According to the Federal Court, to determine whether the
past history and character of the accused and the
circumstances of the case make it possible to foresee an
improvement in his behaviour is essentially a matter of
assessment and the appellate authority can intervene in this
area only if the trial court based its decision on
questionable legal argument or exceeded its power of
assessment (Journal des Tribunaux [JT, Courts' Gazette] 1980
I 460 no. 58, and the judgments mentioned therein). The
same principles have been laid down by this Court: the
appellate body should intervene only where the trial court
misuses its power of assessment or where it has failed to
give expressly or impliedly the grounds for its decision
(see CCP with annotations, Article 415, p. 285).
In this instance, the grounds for refusing to suspend the
sentence were stated by implication and did not constitute
misuse of the power of assessment. The quantity of drugs
involved was large and the appellant's criminal activity
continued over a long period, while he was on probation
under another sentence. The profit-making purpose is clear.
Not even his precarious financial position excuses engaging
in such traffic. The information obtained regarding the
appellant is not wholly positive. The first-instance court
was therefore correct in taking the view that his past
history and his character and the circumstances of the case
were not such as to warrant a favourable prognosis and
therefore in refusing to suspend the sentence. The refusal
to suspend the sentence is therefore justified and the
application to have the decision varied must therefore also
fail."
C. Proceedings in the Federal Court
15. The applicant then lodged a public-law appeal with the
Federal Court, complaining of the arbitrary application of
Article 104 of the Vaud Code of Criminal Procedure and of
violations of Article 4 of the Constitution and Article 6 para. 3
(c) (art. 6-3-c) of the Convention. He also sought free legal
assistance in the proceedings before the Federal Court.
On 5 December 1986 the Federal Court allowed his request for
free legal assistance, but dismissed the appeal in the following
terms:
"1. The appellant states that the submissions on which he
relies ... overlap for the most part and he gives no
specific grounds, as required under Article 90 para. 1 (b)
OJ [Federal Act on the organisation of the courts of 16
December 1943], concerning the complaint of a violation of
the European Convention on Human Rights. Moreover, the
guarantees secured by the provisions of Article 6 (art. 6)
of the European Convention are in part already contained in
Article 4 of the Constitution. They do not therefore in
this case have separate effect (ATF 105 Ia 305, ground f,
103 Ia 5, ground 2). The present appeal can consequently be
examined only from the point of view of domestic law.
...
... In other words provision of free legal assistance is
indispensable where the case in question is of some gravity
and gives rise to difficulties as to the facts or to the law
of a kind that the accused is not in a position to deal with
(ATF 111 Ia 82 s., ground 2 c, 102 Ia 89 et seq.). In order
to ascertain whether the minimum requirements of Article 4
of the Constitution are satisfied, it is necessary in each
case to assess all the specific circumstances (ATF 102 Ia
90).
4. (a) As far as the length of the likely sentence is
concerned (an order of confinement in a non-penal
institution not being relevant to the present case), the
appellant does not claim that he risked, in the given
circumstances and for the only offences of which he was
accused, a sentence whose length was in excess of a sentence
which might be suspended. Clearly the risk of the
activation of the previous suspended sentence (which was
here for a term of ten months' imprisonment) has to be taken
into account (see the Coindet judgment, cited above, ground
2 b). But the appellant does not maintain that, in view of
this possibility, he in fact risked a custodial sentence of
more than eighteen months. On the contrary, he relied on
the total of sixteen months' imprisonment imposed on him in
order to argue that free legal assistance might have made it
possible for him to obtain a more lenient sentence. It must
therefore be recognised that the overall sentence which he
actually risked did not exceed eighteen months and therefore
did not entail the obligation to grant him free legal
assistance.
(b) Evidently, the appellant's case must be regarded in
itself as relatively serious, for the reasons set out in the
judgments of the Cantonal Court and the Criminal Court.
However, various considerations which the case-law has
identified as militating in favour of according free legal
assistance did not apply: Quaranta was not in detention on
remand for a long time, which would have been an impediment
to his defence; he was released on the very day on which he
had been arrested (ATF 101 Ia 91, ground 3 e, 100 Ia
187/188); the prosecution case was not argued, at the trial
hearing on 12 November 1985, by a representative of the
public prosecutor's office (ATF 106 Ia 183, ground 2 b, 103
Ia 5 i. f.); despite a certain instability, the appellant
did not appear to be a man of diminished capacity either
physically or mentally, as can be inferred from the
attestation and the statements of his employer, as well as
those of the social worker questioned by the police. In
addition, his case did not give rise to any difficulty as to
the facts, since the investigation concerning him consisted
merely of a single interview by the investigating judge.
Moreover, he immediately admitted the facts in respect of
which he was accused, and which are not in any case
contested in the appeal (ATF 111 Ia 85/86, 101 Ia 92).
...
(aa) As regards the possibility of diminished criminal
responsibility, the appellant relies, in the first place, on
the extract from the contested judgment in which it is
stated that 'from 1975 until spring 1985, and with greater
frequency since 1983, the accused has taken hashish on a
daily basis', an extract reproduced verbatim from the
first-instance judgment of 12 November 1985. Secondly, he
relies on the Conconi judgment (ATF 102 IV 74 et seq.). It
appears, however, from the file of the investigating judge
of the Vevey-Lavaux district that the above-mentioned
statement of fact is not accurate. Questioned on 10 March
1985 by the police, the appellant stated: 'I have been
smoking hash for about ten years. For two years I have
smoked every day'. The same day, he answered the
investigating judge as follows: 'I first came into contact
with hashish at the age of thirteen ... . Since then I have
smoked it from time to time; it is really only over the last
two years that I have been smoking hashish almost daily'.
The police report of 10 April 1985 notes that Quaranta
'stated that he had been smoking hashish for about ten years
and more regularly for two years'. There is no evidence to
the effect that, contrary to his statements, the appellant
smoked hashish on a daily basis 'from 1975 onwards', or
indeed that he has in fact smoked every day since 1983.
Moreover, the same evidence makes clear that he only used
hashish, and not 'hard' drugs. In any event the committal
order and the criminal court's judgment of 12 November 1985
concerned solely hashish.
On issues of law it was unnecessary to appoint a lawyer
to act for the appellant in order to draw the Court's
attention to the fact that, in accordance with the Conconi
judgment, 'the court has a duty, where consumption of
narcotics is involved, to consider whether the circumstances
cast doubt on the accused's responsibility'. Quaranta
appeared in no way disturbed and, unlike Conconi, he had
never used 'hard' drugs. The cantonal courts, which
inquired into the accused's character and expressed their
views in this respect, therefore clearly considered that
there were no grounds for doubting his mental state.
Whether or not they were under an obligation to say so
expressly in their judgments, as would seem to be a possible
inference from the Conconi judgment, is immaterial in
relation to an alleged obligation to accord free legal
assistance.
(bb) The question whether the reason for the refusal to
suspend the new sentence also necessarily entailed the
activation of the previous suspended sentence (cf. ATF 107
IV 92/93) was not in itself a complex legal issue which
required the granting of free legal assistance. Given the
appellant's previous history and the nature and the dates of
the new offences, there is no evidence that the provision of
legal assistance - which Quaranta moreover received for his
appeal to the Criminal Court of Cassation - would have been
necessary for the protection of his rights.
... ."
16. On 21 July 1987 Mr Quaranta went to the prison of
Bellechasse (Fribourg) to serve his sentence, but the High
Council of the Canton of Vaud accorded him a partial pardon by a
decree of 18 November 1987 which was worded as follows:
"The enforcement of the sentences of ten months'
imprisonment, less five days of detention on remand, and six
months' imprisonment to which Quaranta was sentenced by the
Vevey District Criminal Court respectively on 5 March 1982
and 12 November 1985 shall be suspended as from 24 December
1987 for a probationary period of three years from the date
of suspension."
II. Relevant domestic law
A. The Federal Constitution
17. According to the first paragraph of Article 4 of the Federal
Constitution,
"All Swiss nationals shall be equal before the law. In
Switzerland there shall be no vassals; and there shall be no
privileges attaching to a place, birth, persons or
families."
B. Free legal assistance
18. The two provisions of the Vaud Code of Criminal Procedure
relied on or applied in the present case are as follows:
Article 104
"The accused must be provided with defence counsel in all
cases in which a representative of the public prosecutor's
office participates in the court proceedings.
In other cases, he may be provided with defence counsel,
even against his will, when the needs of the defence so
require, in particular for reasons relating to his
personality or because of the particular difficulties of the
case."
Article 107
"At any time until the opening of the trial, the accused
may request free legal assistance. He shall make such a
request to the investigating judge, who shall transmit it
forthwith, with his preliminary opinion, to the President of
the competent court; when the case has already been referred
to the court, the accused shall submit his request directly
to the President.
The President shall take his decision promptly; ... ."
C. The anti-drugs legislation
1. The Federal Misuse of Drugs Act of 3 October 1951
19. Sections 19 para. 1 and 19 (a) para. 1 provide inter alia:
Section 19 para. 1
"Any person who unlawfully cultivates alkaloid or hemp
plants with a view to producing narcotics,
any person who unlawfully manufactures, extracts,
transforms or prepares narcotics,
any person who unlawfully stocks, dispatches, transports,
imports, exports or carries them in transit,
any person who unlawfully offers, distributes, sells,
deals in, procures, prescribes, markets or transfers them,
any person who unlawfully possesses, holds, purchases or
otherwise acquires them,
any person who takes steps to pursue these ends,
any person who finances illegal traffic in narcotics or who
serves as intermediary for such financing, and
any person who publicly encourages the consumption of
drugs or reveals how to obtain or consume them,
shall be liable, if he has acted intentionally, to
imprisonment or a fine. In serious cases the sentence may
be imprisonment (réclusion or emprisonnement) for at least
one year; such a sentence may be accompanied by the
imposition of a fine of up to one million Swiss francs.
... ."
Section 19 (a) para. 1
"Any person who unlawfully and intentionally consumes
narcotics or any person committing an infringement of
Article 19 in order to provide for his own consumption shall
be liable to detention or a fine.
... ."
2. The Swiss Criminal Code
20. The term of imprisonment (emprisonnement) is laid down in
Article 36 of the Criminal Code:
"The term of imprisonment (emprisonnement) shall be not
less than three days and, except as expressly provided to
the contrary by statute, shall not exceed three years."
21. The rules governing the suspension of sentence are set out
in Article 41, which is worded as follows:
"1. Where a custodial sentence of not more than eighteen
months or an accessory penalty is imposed, the court may
suspend the enforcement of the sentence, if the record and
character of the convicted person suggest that this measure
will deter him from committing further offences and if he
has made reparations, to the extent which might reasonably
be expected of him, for damage as assessed by the court or
by agreement with the injured party.
The sentence may not be suspended where the convicted
person has undergone, in respect of an intentional offence
(crime or délit), more than three months' imprisonment
(réclusion or emprisonnement) within the five years
preceding the commission of the offence. Foreign
convictions are to be taken into account in so far as they
are not contrary to Swiss public policy.
In suspending the sentence, the court shall accord the
convicted person a probationary period of from two to five
years.
Where more than one sentence is involved, the judge may
limit the effect of the suspension to certain of them.
... ."
22. In the case of abnormal offenders, alcoholics and drug
addicts, the court may order the following measures and
treatment:
Article 43 para. 1
"Where the mental state of an offender who has committed,
by reason of this state, an offence punishable by
imprisonment (réclusion or emprisonnement) under the present
Code requires medical treatment or special care intended to
remove or reduce the danger of the offender's committing
other such offences, the court may order that he be sent to
a hospital or an asylum. It may order out-patient treatment
if the offender does not represent a danger for other
persons."
...
Where out-patient treatment is ordered, the court may
suspend the sentence imposed if that sentence is not
compatible with the treatment. In such circumstances, it
may order the convicted person to comply with rules of
conduct under Article 41 (2) and, if necessary, place him
under court supervision.
... ."
Article 44
"1. If the offender is an alcoholic and he has committed
the offence in question by reason of this state, the court
may commit him to an establishment for alcoholics or if
necessary to a hospital in order to prevent new offences.
The court may also order out-patient treatment. Article 43
(2) is applicable by analogy.
The court shall order if necessary an expert opinion on
the physical and mental state of the offender and on the
appropriateness of the treatment.
...
6. This Article applies by analogy to drug addicts.
... ."
PROCEEDINGS BEFORE THE COMMISSION
23. In his application (no. 12744/87) lodged with the Commission
on 18 December 1986, Mr Quaranta claimed to be the victim of a
violation of Article 6 para. 3 (c) (art. 6-3-c) of the
Convention. He maintained that he had not had the means to pay a
lawyer of his choice and that, in view of the nature of the case,
a lawyer should have been appointed to represent him during the
investigation and subsequently at the hearing before the Vevey
Criminal Court.
24. The Commission found the application admissible on 6 July
1988. In its report of 12 February 1990 (Article 31) (art. 31),
it expressed the unanimous opinion that there had been a
violation of Article 6 para. 3 (c) (art. 6-3-c). The full text
of its opinion is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 205
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS SUBMITTED TO THE COURT BY THE GOVERNMERNT
25. At the hearing the Government confirmed the submissions set
out in their memorial, in which they requested the Court to hold
that "Switzerland has not infringed the European Convention on
Human Rights in respect of the facts which gave rise to the
application lodged by Mr Quaranta".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 para. 3 (c) (art. 6-3-c)
26. The applicant complained that the President of the Vevey
District Criminal Court had twice refused his application for
free legal assistance in the proceedings before that court. He
relied on Article 6 para. 3 (c) (art. 6-3-c) of the Convention,
which is worded as follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;
... . "
27. The Court points out that the right of an accused to be
given, in certain circumstances, free legal assistance
constitutes one aspect of the notion of a fair trial in criminal
proceedings (see the Artico judgment of 13 May 1980, Series A
no. 37, p. 15, para. 32). Sub-paragraph (c) of Article 6 para. 3
(art. 6-3-c) attaches two conditions to this right. The first,
lack of "sufficient means to pay for legal assistance", is not in
dispute in the present case. On the other hand, it is necessary
to determine whether the "interests of justice" required that the
applicant be granted such assistance.
28. The Commission observed that even if the refusal of the
President of the Criminal Court, during the investigation (see
paragraph 9 above) and then prior to the hearing (see
paragraph 11 above), was in conformity with Swiss law and
practice, it did not necessarily follow that the criteria applied
by the national authorities were decisive for the purposes of the
Convention; it considered that in the present case the "interests
of justice" required that the applicant be accorded free legal
assistance both during the investigation and before the Vevey
District Criminal Court.
29. The Government disputed that view. In their contention
Article 6 para. 3 (c) (art. 6-3-c) does not provide a higher
level of protection than the guarantees which the Federal Court
has inferred from Article 4 of the Federal Constitution. They
argued that the right to free legal assistance was not absolute,
but depended on the assessment of all the circumstances of the
case and was subject to a number of conditions which were
substantially the same in federal law and in the law of the
various cantons. The Vaud legislation provided for the right to
free legal assistance in criminal proceedings and made the grant
of such assistance subject to certain conditions; Article 104,
2nd paragraph, of the Vaud Code of Criminal Procedure recognised
such a right, inter alia, "when the needs of the defence so
require" (see paragraph 18 above). The Government stressed that
sub-paragraph (c) of Article 6 para. 3 (art. 6-3-c) of the
Convention was drafted in similar terms. They considered
nevertheless that the Court had had few opportunities to define
the notion of "interests of justice" and that its case-law in
this field lacked clarity. Should the Court confirm the
Commission's opinion, the Government invited it to specify
expressly in what way the judicial authorities had infringed
Article 6 para. 3 (c) (art. 6-3-c).
30. On several occasions the Court has observed that the
Contracting States enjoy considerable freedom in the choice of
the means of ensuring that their legal system satisfies the
requirements of Article 6 (art. 6). Its task is to determine
whether the method chosen by them in this connection leads to
results which, in the cases which come before it, are consistent
with the requirements of the Convention.
31. As the Government emphasised, in rejecting Mr Quaranta's
application the cantonal and federal authorities relied on
specific considerations such as the fact that there were no
special difficulties arising from the case, the fact that no
representative of the prosecuting authority attended the
first-instance hearing, the applicant's character, the shortness
of his detention on remand and the penalty which he risked
incurring.
32. In order to determine whether the "interests of justice"
required that the applicant receive free legal assistance, the
Court will have regard to various criteria. To a large extent
they correspond to those put forward by the Government. However,
the way in which the Swiss authorities appear to apply them may
differ - and in the present case did differ - from the Court's
approach.
33. In the first place, consideration should be given to the
seriousness of the offence of which Mr Quaranta was accused and
the severity of the sentence which he risked. He was accused of
use of and traffic in narcotics and was liable to "imprisonment
or a fine" (section 19 para. 1 of the 1951 Act - see paragraph 19
above).
According to the Government, there was nothing in the file
to indicate that the Criminal Court was likely to impose a
sentence exceeding eighteen months, the maximum for a suspended
sentence. By sentencing the applicant to six months'
imprisonment, the court did not reach this limit, even if the
sentence imposed in 1982 is taken into account (see paragraph 8
above).
The Court notes however that this was no more than an
estimation; the imposition of a more severe sentence was not a
legal impossibility. Under section 19 para. 1 of the Federal
Misuse of Drugs Act, in conjunction with Article 36 of the Swiss
Criminal Code, the maximum sentence was three years' imprisonment
(see paragraph 20 above). In the present case, free legal
assistance should have been afforded by reason of the mere fact
that so much was at stake.
34. An additional factor is the complexity of the case. The
Court agrees with the Government that the case did not raise
special difficulties as regards the establishment of the facts,
which the applicant had moreover admitted immediately at his only
examination by the investigating judge. However, the outcome of
the trial was of considerable importance for the applicant since
the alleged offence had occurred during the probationary period
to which he was made subject in 1982 (see paragraph 8 above).
The Criminal Court therefore had both to rule on the possibility
of activating the suspended sentence and to decide on a new
sentence. The participation of a lawyer at the trial would have
created the best conditions for the accused's defence, in
particular in view of the fact that a wide range of measures was
available to the Court.
35. Such questions, which are complicated in themselves, were
even more so for Mr Quaranta on account of his personal
situation: a young adult of foreign origin from an
underprivileged background, he had no real occupational training
and had a long criminal record. He had taken drugs since 1975,
almost daily since 1983, and, at the material time, was living
with his family on social security benefit.
36. In the circumstances of the case, his appearance in person
before the investigating judge, and then before the Criminal
Court, without the assistance of a lawyer, did not therefore
enable him to present his case in an adequate manner.
37. This defect was not cured either in the Criminal Court of
Cassation of the Canton of Vaud, despite the presence of a lawyer
paid by the applicant, or in the Federal Court, although he was
accorded free legal assistance before that court, because of the
limits on the scope of the review which may be carried out by
those two courts (see, as the most recent authority, mutatis
mutandis, the Weber judgment of 22 May 1990, Series A no. 177,
p. 20, para. 39).
38. In conclusion, there has been a violation of Article 6
para. 3 (c) (art. 6-3-c).
II. APPLICATION OF ARTICLE 50 (art. 50)
39. Article 50 (art. 50) of the Convention provides as follows:
"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."
Under this provision Mr Quaranta claimed compensation for
damage and the reimbursement of costs and expenses.
A. Damage
40. The applicant conceded that he had been accorded a partial
pardon on 18 November 1987. He claimed, however, that he had
sustained pecuniary damage on account of his imprisonment, which
had lasted more than six months, from 21 July to 24 December 1987
(see paragraph 16 above). He also alleged non-pecuniary damage
inasmuch as, in view of the fact that he had been deprived of an
effective defence for a long period, he had experienced a
distressing feeling of isolation, confusion and abandonment.
Under these two heads he sought compensation which could be
"assessed on an equitable basis" at 10,000 Swiss francs.
41. In the Government's contention, there are no grounds for
asserting that the outcome of the trial would have been more
favourable to the applicant if he had received free legal
assistance. The claim in respect of pecuniary damage should
therefore be dismissed. As regards non-pecuniary damage, they
argued, on the basis of the Neumeister judgment of 7 May 1974
(Series A no. 17), that a pardon, without repairing all the
consequences of a violation, played an important role in this
connection so that a finding of a violation would in the present
case constitute sufficient satisfaction.
42. In the opinion of the Commission's Delegate, the experience
of being judged without the assistance of counsel left
Mr Quaranta with a feeling of anxiety and bitterness which
deserved compensation.
43. The Court does not perceive any causal connection between
the breach of Article 6 (art. 6) and the alleged pecuniary
damage. On the other hand, the violation found must have caused
the applicant non-pecuniary damage justifying the award, assessed
on an equitable basis, of 3,000 Swiss francs.
B. Costs and expenses
44. In respect of his costs and expenses the applicant claimed
10,000 Swiss francs, namely 2,000 for the proceedings before the
Criminal Court of Cassation, 2,000 for the application for a
pardon and 6,000 for the "European proceedings properly so
called".
45. The Court considers, in agreement with the Government, that
only the costs incurred in the Criminal Court of Cassation can be
reimbursed, and not those referable to the application for a
pardon. Mr Quaranta failed to provide any details concerning the
costs relating to the proceedings in Strasbourg. Making an
assessment on an equitable basis, the Court awards him a total of
7,000 Swiss francs, less the 10,441 French francs paid by the
Council of Europe as legal aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6
para. 3 (c) (art. 6-3-c) of the Convention;
2. Holds that the respondent State is to pay to the applicant,
for non-pecuniary damage, 3,000 (three thousand) Swiss
francs and, for costs and expenses, 7,000 (seven thousand)
Swiss francs less 10,441 (ten thousand four hundred and
forty one) French francs, to be converted into Swiss francs
at the exchange rate applicable on the day of delivery of
the present judgment;
3. Dismisses 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 24 May 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar