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You are here: BAILII >> Databases >> European Court of Human Rights >> S. v. SWITZERLAND - 12629/87;13965/88 [1991] ECHR 54 (28 November 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/54.html
Cite as: [1991] ECHR 54
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In the case of S. v. Switzerland*,
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 J. Cremona, President,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr B. Walsh,
Mr R. Bernhardt,
Mr J. De Meyer,
Mrs E. Palm,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 June and 25 October 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 48/1990/239/309-310. 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 8 October 1990 and by the
Government of the Swiss Confederation ("the Government") on
12 December 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 two applications (nos. 12629/87 and
13965/88) against Switzerland lodged with the Commission under
Article 25 (art. 25) by S., a Swiss national, on 18 November 1986
and 28 May 1988. The applicant requested the Court not to disclose
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 the requirements
of Article 6 para. 3 (b) and (c) and Article 5 para. 4 (art. 6-3-b,
art. 6-3-c, art. 5-4).
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).
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 October 1990,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr J. Cremona,
Mr Thór Vilhjálmsson, Mr F. Matscher, Mr B. Walsh,
Sir Vincent Evans, Mr J. De Meyer and Mrs E. Palm (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
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 lawyer
for the applicant 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 and
the Government's memorial on 30 April 1991. On 10 June the
Secretary to the Commission informed him 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 had directed on
11 February 1991 that the oral proceedings should open on
24 June 1991 (Rule 38).
6. Mr Ryssdal and Sir Vincent Evans were subsequently unable to
take part in the further consideration of the case; the former was
therefore replaced as President of the Chamber by Mr Cremona,
Vice-President of the Court, the latter by Mr F. Gölcüklü,
substitute judge. Mr Cremona was himself replaced as a member of
the Chamber by Mr R. Bernhardt, also a substitute judge
(Rule 21 para. 3 (b) and para. 5 and Rules 22 para. 1
and 24 para. 1).
7. 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 O. Jacot-Guillarmod, Assistant Director of the Federal
Office of Justice, Head
of the International Affairs Division, Agent,
Mr R. Hauser, Professor Emeritus of Criminal
Law at the University of Zürich,
Mr F. Schürmann, Technical Assistant
in the Federal Office of Justice, Counsel;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr J.-P. Garbade, avocat, Counsel,
Mr M.-P. Honegger, avocat, Adviser.
The Court heard addresses by Mr Jacot-Guillarmod for the
Government, Mr Trechsel for the Commission and Mr Garbade for the
applicant, as well as their replies to its questions.
AS TO THE FACTS
8. S. is a mason and lives in Zürich.
9. In autumn 1980 a protest movement broke out in the town of
Winterthur (Canton of Zürich) directed against the sale of nuclear
power stations to a Latin American country then under a military
regime. It continued in 1981 in the form of demonstrations against
the holding of an international arms fair, and writing graffiti and
occupying buildings as a protest against the housing shortage. In
1983 and 1984 there was a series of cases of arson and attacks
using explosives, causing damage to several public and private
buildings including the house of Mr Friedrich, who was then a
Cabinet Minister (Bundesrat) and head of the Department of Justice
and Police.
On 20 July 1984 the Winterthur police set up a special unit with
the task of co-ordinating the hunt for those responsible for these
crimes. It shadowed the members, tapped the telephones and
regularly emptied the dustbins of a commune which was thought to be
sheltering the criminals.
On 20 November, the police arrested twenty-seven persons and seized
numerous documents at the same time. Ten of these persons were
released again on the same day. The others were detained in
solitary confinement, without being able to correspond freely with
their lawyers, and each was the subject of a separate procedure.
10. S. was suspected of being involved in the above-mentioned
crimes. He was arrested at his home in Geneva on 21 November 1984
but succeeded in escaping. He was arrested again on 30 March 1985
and charged with the use of explosives in connection with the
attack on Mr Friedrich's house.
11. On 2 and 4 April 1985 the Federal Public Prosecutor
(Bundesanwalt) sent the Geneva authorities various documents
implicating the applicant. On 10 April he was questioned by
members of the Federal Public Prosecutor's Office on the
accusations against him, but exercised his right to silence.
A. The investigative stage
12. The investigation became the responsibility of the Winterthur
District Attorney's Office (Bezirksanwaltschaft) on 22 May 1985,
and S. was taken to Winterthur prison.
After questioning him on 28 May 1985 the District Attorney
(Bezirksanwalt) accused him of having caused an explosion at
Mr Friedrich's house and started a fire at a civil defence centre.
He again remanded him in custody on the grounds of the risk of
flight and of collusion with his co-accused. On 7 June 1985 he
further accused him of arson at two rifle ranges, flooding business
premises and criminal damage to property by means of graffiti.
According to S.'s lawyer all these charges were based on
graphological reports which had been drawn up on the basis of
documents seized by the police on 20 November 1984 (see
paragraph 9 above).
13. On 19 July 1985 the Geneva authorities sent the Winterthur
District Attorney's Office the results of their investigations.
1. The surveillance of the applicant's contacts and
correspondence with his lawyer
14. In April 1985 the applicant had asked his mother to ask
Mr Rambert, the lawyer representing one of the other accused, W.,
to take on his defence too. Mr Rambert declined to do this and on
1 May 1985 S. instructed Mr Garbade. On 10 June the President of
the Indictments Division (Anklagekammer) of the Zürich Court of
Appeal (Obergericht) designated him as court-appointed defence
counsel with retrospective effect from 4 May.
15. On 8 May 1985, while still in custody in Bern, the applicant
had been able to confer freely with Mr Garbade for about half an
hour. From 15 May, on the other hand, visits took place under the
supervision of a police official. Three of the applicant's letters
to his lawyer, dated 4, 6 and 21 May, were intercepted and were
later used for the purpose of graphological reports.
After being transferred to Winterthur prison S. continued to be
subject to surveillance of his correspondence and his lawyer's
visits. He was, however, able on 29 May to have a meeting with no
witness present with Mr H., a lawyer who had been approached by his
mother to undertake his defence.
16. On 31 May 1985 the applicant spoke with Mr Garbade in the
presence of a policeman who took notes and stopped the interview
after an hour, on the grounds that they were no longer speaking
about the case and he had other business to see to.
17. In a letter of 12 June 1985 the Winterthur District Attorney
informed the Zürich Principal Public Prosecutor (Staatsanwalt) that
he considered these measures necessary in view of the risk that the
applicant's lawyer might collude with other lawyers or
other co-accused. He relied on the second paragraph of Article 18
of the Zürich Criminal Procedure Code (Strafprozessordnung),
according to which:
"An accused who is held in custody shall be permitted written and
oral contact with defence counsel, in so far as the purpose of the
investigation is not jeopardised.
Once his detention has exceeded fourteen days, an accused must not
be refused permission to consult defence counsel freely and without
supervision, unless there are special reasons, in particular a
danger of collusion. After the close of the investigation, an
accused shall have this right without restriction.
(...)."
18. The Indictments Division of the Zürich Court of Appeal gave
S.'s lawyer permission on 27 June 1985 to examine three police
reports and several transcripts of statements by the co-accused at
the registry of the Court, but not to take copies of them. From
that date until January 1986 (see paragraph 33 below) Mr Garbade
did not have access to any other documents in the case-file.
19. There were numerous disputes between the lawyer and those
carrying out the surveillance, notably on 23 August 1985 when the
lawyer wanted to give his client several decisions and letters from
the District Attorney and a copy of the memorial for the public-law
appeal of 19 August 1985 (see paragraph 27 below). The latter
document was seized by the officer and sent to the District
Attorney.
20. On application by the Winterthur District Attorney's Office
the President of the Indictments Division of the Zürich Court of
Appeal extended the applicant's detention on remand until
12 September 1986, in order to prevent him colluding with his
co-accused, who had meanwhile been released, and tampering with
evidence.
21. In October 1985 Mr Garbade saw some extracts from the final
police report of 8 August 1985, but he did not have access to the
case-file until January 1986.
2. The first series of appeals against the surveillance measures
22. On 3 June 1985 the applicant appealed to the Indictments
Division of the Zürich Court of Appeal, complaining of the
surveillance of the interview of 31 May (see paragraph 16 above),
and supplemented the appeal on 14 June following other visits on
7 and 14 June.
23. The Indictments Division dismissed S.'s appeal on 27 June. It
pointed out that he was suspected of having committed the crimes in
question and said that in view of the complexity and extent of the
authorities' investigation there was a serious risk of collusion;
because the accused had refused to make a statement, it would have
been easy for him to tamper with the evidence, as his
co-accused had been released, apart from W. He had also kept in
close contact with them, and was accused of serious offences which
had constituted attacks on public and social order. There was also
a risk of unintentional collusion on the part of Mr Garbade
in view of his contacts with the lawyers representing the other
accused, especially counsel for W. As for the conduct of the
policeman responsible for surveillance of the interview of
31 May 1985 (see paragraph 16 above), this could be justified.
24. The applicant appealed against this decision to the Civil
Division of the Zürich Court of Appeal; on 26 July 1985 that court
upheld the decision. The court found that a danger that the
applicant would collude with his co-accused followed from his
refusal to make a statement, and it could be supposed that he would
use every effort to make their respective statements agree with
each other (abstimmen). Mr H. had indeed been able to confer
freely with him, but the Civil Division did not find credible
Mr Garbade's assertions that his contacts with the lawyers
representing the other accused were no closer than Mr H.'s;
further, counsel for W. had advised the District Attorney's Office
that the lawyers had all agreed to co-ordinate their strategy.
The court added:
"Acting in such a way is not inadmissible, but it must, however, be
compatible with the duty to ascertain the material truth (Gebot der
materiellen Wahrheitsfindung). As the accused represented by
Mr Garbade and Mr Rambert are exercising their right to refuse to
make any statements, one cannot ignore the risk that defence
counsel will not only co-ordinate their tactical and legal way of
proceeding but may also, intentionally or not, adversely affect the
ascertainment of the material truth. In these circumstances,
precisely in the case of offences of this type which must be
regarded as attacks on public and social order, there are
sufficient indications pointing to a danger of collusion in the
person of defence counsel."
25. On 10 June 1985 the applicant had also challenged a decision
by the President of the Indictments Division extending his
detention on remand. He complained that he had not been able to
examine all the documents in the case-file, and that the
proceedings had been entirely written. On 18 July 1985 the
Indictments Division dismissed the appeal and confirmed the further
remand until 12 September 1985, on the grounds that there was still
a danger of collusion and flight.
26. S. then brought two public-law appeals before the Federal
Court on 19 and 27 August.
27. In the first appeal, which was directed against the decision
of 18 July 1985 (see paragraph 25 above), he relied on
Article 6 para. 3 (b) in conjunction with Article 5 para. 4
(art. 6-3-b, art. 5-4) of the Convention. He alleged that the
surveillance of the interviews made his right to take proceedings
within the meaning of Article 5 para. 4 (art. 5-4) illusory, and
that his right to a fair hearing was deprived of substance as
regards the review of the lawfulness of his detention on remand; in
particular, the aforesaid surveillance prevented any confidential
conversation with his lawyer aimed at refuting the evidence
collected during the investigation. Further, he did not have
access to the case-file and his lawyer was unable to take a copy of
it.
The second appeal challenged the decisions of 27 June and
26 July 1985 (see paragraphs 23 and 24 above) and put forward
essentially the same complaints.
28. On 15 October 1985 the Federal Court dismissed the appeal of
19 August (see paragraph 27 above). It found inter alia that
Mr Garbade, whose task it was to draw up the application for
release from detention, had had access to the case file, so that
the applicant's rights in the proceedings on the extention of his
pre-trial detention had not been infringed. The court added that
counsel would, at the preparation for trial at the latest, have the
right to a copy of the case-file for his client if he asked for
this.
29. The appeal of 27 August 1985 (see paragraph 27 above) suffered
the same fate on 4 December. The Federal Court held that only
Article 4 of the Federal Constitution and Article 6 para. 3 (c)
(art. 6-3-c) of the Convention (as interpreted by the European
Commission of Human Rights) were relevant, and not
Article 6 para. 3 (b) (art. 6-3-b), as the surveillance had not
prejudiced preparation for the trial.
The authorities had not been arbitrary in describing the offences
in question as systematic attacks on public and social order. The
accused appeared to be extremely dangerous and it was reasonable to
suppose that they would have resorted to illegal methods even
during the judicial proceedings. Consequently, regardless of
Mr Garbade's personal qualities, surveillance of his contacts with
his client was in accordance with the Constitution and the European
Convention.
In the event of irregular actions on the part of a lawyer, it was
in the first place up to the disciplinary authorities to impose
penalties on him. A lawyer could intentionally or unintentionally
become the accomplice of an accused. This was the case in
particular with Mr Garbade, who was in close contact with
Mr Rambert, whose client W. had been allowed to communicate freely
with him. However, the applicant could not claim to be the victim
of discrimination, as W. had been in custody for much longer and
was accused of additional offences.
3. The second series of appeals against the surveillance measures
30. The surveillance had not been relaxed in the meantime. The
police officer in charge of it had drawn up reports on 23 August,
11 October, 21 October and 18 December; these were subsequently
added to the case-file. It was apparent from the first report that
Mr Garbade had had to show him the documents he was studying with
his client.
31. In a letter of 15 October 1985 the Winterthur District
Attorney's Office had informed the Principal Public Prosecutor that
the surveillance was aimed at eliminating all risk of collusion; he
considered, however, that it was unlikely that a conversation
listened to could be used in evidence against S. in any way.
32. On 21 October 1985 the Winterthur District Attorney notified
Mr Garbade that he would end the surveillance as soon as he had
heard the applicant's statement on the accusations brought against
him. Mr Garbade replied that S. would refuse to make any statement
as long as the surveillance continued.
33. The surveillance of visits and correspondence was ended on
10 January 1986 following an interrogation lasting a day and a
half. On that occasion the District Attorney asked the applicant
to make a statement, but he exercised his right to silence. After
this he was able to confer with his counsel in the prison library
with no glass screen or any other restriction.
34. On 20 December 1985 the applicant had brought an appeal inter
alia against the surveillance of visits and the fact that he was
not allowed to consult the case-file.
On 8 January 1986 the Indictments Division of the Zürich Court of
Appeal had adjourned a decision on the first point, on the grounds
that the District Attorney's Office was about to discontinue the
surveillance. On the second point the court had found that S. was
still suspected of the offences in question and the length of the
investigation was caused by his insistence on remaining silent.
On 10 July 1986 the court found that the complaint on which it had
adjourned a decision on 8 January was no longer a live issue now
that the surveillance measures had ended (see paragraph 33 above).
In order to decide whether the applicant was liable for costs or
was entitled to damages, it assessed what chances of success the
appeal would have had if the surveillance had continued. It noted
that the circumstances referred to in the Federal Court's decision
of 4 December 1985 (see paragraph 29 above) had not changed
by 20 December, the date of the appeal, and the restrictions on
free communication between the applicant and his lawyer thus
remained justified; it therefore did not award him any pecuniary
compensation.
35. S. appealed against this decision to the Civil Division of the
Zürich Court of Appeal, which upheld the decision on
19 January 1987, again on the grounds that the appeal of
20 December 1985 would probably have failed.
36. S. finally brought a public-law appeal on 27 February 1987.
The Federal Court dismissed it on 30 November 1987. Restricting
itself to examining whether the refusal to award compensation was
tainted by arbitrariness, it found that there had been a danger of
collusion and in essence approved the findings of the Indictments
Division (see paragraph 34 above).
B. The indictment and the proceedings in the Zürich Court of
Appeal
37. In a report drawn up for the Winterthur District Attorney's
Office on 26 March 1986, the Zürich police had expressed the
opinion that some of the anonymous letters which had been sent
shortly after the offences in question undoubtedly came from the
applicant.
38. The final interrogation took place on 28 July 1986. According
to the record, S. refused to answer the accusations brought against
him, and his lawyer attributed those accusations to the fact that
his client was thought to have anarchist opinions.
39. The Winterthur District Attorney's Office's final report
(Schlussbericht) of 21 August 1986, comprising 235 pages, accused
the applicant of nineteen offences and attempted offences of arson,
participation in three attacks with explosives, various thefts and
offences of criminal damage, including damage to a railway line;
the damage amounted to approximately 7,670,000 Swiss francs. The
report was forwarded to the Zürich Public Prosecutor's Office.
40. On 12 September, 6 October and 22 December 1986 the applicant
made unsuccessful requests to the Public Prosecutor's Office to
reopen the investigation. He applied again on 1 April 1987.
41. In accordance with paragraph 3 (c) of Article 198 a of the
Zürich Criminal Procedure Code he left it to the Indictments
Division to decide which court would try him. The Division decided
to commit him for trial by the Court of Appeal rather than the
Court of Assizes (Geschworenengericht), as it considered that his
interests would be better protected in that way, especially with
regard to his youth.
42. The trial was due to start on 14 January 1988 but the
applicant did not appear. The Court of Appeal therefore adjourned
the hearing.
A fresh hearing took place on 11 December 1989, in the absence, for
which no reason had been given, of S. who had been provisionally
released on 15 September 1988. The Court of Appeal found him
guilty inter alia of manufacturing explosives, arson, theft and
criminal damage and sentenced him to seven years' imprisonment
- the 1,291 days spent in custody on remand being deducted - and to
payment of costs and expenses.
The applicant appealed. A new trial took place on 8 February 1990,
again in his absence. After hearing his counsel and the
representative of the Zürich Principal Public Prosecutor, the Court
of Appeal upheld its judgment of 11 December 1989. He appealed to
the Court of Cassation of the Canton of Zürich, and enforcement of
the judgment was suspended by the appeal.
PROCEEDINGS BEFORE THE COMMISSION
43. In his applications of 18 November 1986 (no. 12629/87) and
28 May 1988 (no. 13965/88) S. complained that he had not been
allowed to communicate with his lawyer freely and without
supervision; in this respect he relied on Article 6 para. 3 (b) and
(c) (art. 6-3-b, art. 6-3-c) of the Convention. He also claimed
that the surveillance in question had made his right to bring
proceedings before a Court within the meaning of Article 5 para. 4
(art. 5-4) illusory. Finally, he alleged that there had been a
violation of Article 13 (art. 13), on the grounds that the Federal
Court had restricted itself to examining whether the Zürich courts
had acted arbitrarily in deciding that the appeal of
20 December 1985 would have been dismissed (see paragraph 34
above).
44. On 12 December 1988 the Commission ordered the applications to
be joined, pursuant to Rule 29 of its Rules of Procedure.
On 9 November 1989 it declared the complaint based on Article 13
(art. 13) inadmissible as being manifestly ill-founded but found
the complaints relating to Article 5 para. 4 and
Article 6 para. 3 (b) and (c) (art. 5-4, art. 6-3-b, art. 6-3-c)
admissible. In its report of 12 July 1990 (made under Article 31)
(art. 31) it concluded that:
(a) there had been a violation of Article 6 para. 3 (c)
(art. 6-3-c) in that the applicant had from 31 May 1985
to 10 January 1986 been unable to converse freely with his lawyer
(fourteen votes to one);
(b) no separate issue was raised with reference to
Article 6 para. 3 (b) (art. 6-3-b) (fourteen votes to one) and
Article 5 para. 4 (art. 5-4) (unanimously).
The full text of the Commission's opinion and of the dissenting
opinion contained in the report 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 220
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
45. In their memorial the Government asked the Court "to hold that
Switzerland [had] not violated the European Convention on Human
Rights on account of the circumstances which gave rise to the two
applications lodged by S.".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 3 (c) (art. 6-3-c)
46. S. claimed that there had been a violation of
Article 6 para. 3 (c) (art. 6-3-c), which reads as follows:
"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 ..."
He criticized the Swiss authorities for having exercised
surveillance of his meetings with Mr Garbade and for having
authorised Mr Garbade to consult only a minute fraction of the
case-file, with the alleged effect that it had been difficult for
him to challenge the decisions by which his detention on remand was
extended. The Government apparently failed to recognize the
purpose of the guarantees provided in the Convention and confused
the protected rights' efficacy with their successful exercise. Now
these rights - in particular the right to legal assistance - were
not exclusive to those who knew how to benefit from them or enjoyed
the services of a good lawyer; they were intended to ensure
equality of arms. Free communication between a lawyer and his
detained client was a fundamental right which was essential in a
democratic society, above all in the most serious cases. There was
thus a contradiction between naming a court-appointed defence
counsel at the start of an investigation because of the seriousness
of the alleged offences and preventing him from carrying out his
task freely.
47. The Government, praying in aid the Commission's report,
pointed out that an accused's right to communicate with his counsel
without hindrance, insofar as it was implicitly guaranteed by
Article 6 para. 3 (c) (art. 6-3-c), might call for such regulation
as to restrict the exercise of the right in certain cases.
The "particularly drastic" restriction imposed in this case was
justified, according to the Government, by the exceptional
circumstances of the case. The grounds for the decisions of the
Swiss courts, which were best in a position to assess the
situation, provided two decisive arguments in support of the "very
unusual" length of the surveillance: firstly, the "extraordinarily
dangerous" character of the accused, whose methods had features in
common with those of terrorists, and the existence of systematic
offences against public and social order, and secondly the risk of
collusion between Mr Garbade and the co-accused. As the
Indictments Division of the Zürich Court of Appeal stated
on 27 June 1985, such a risk was increased when a defendant
exercised his right to silence, as the applicant did. Finally, S.
had not in any way shown that the surveillance complained of by him
had adversely affected his defence.
48. The Court notes that, unlike some national laws and unlike
Article 8 para. 2 (d) of the American Convention on Human Rights,
the European Convention does not expressly guarantee the right of
a person charged with a criminal offence to communicate with
defence counsel without hindrance. That right is set forth,
however, within the Council of Europe, in Article 93 of the
Standard Minimum Rules for the Treatment of Prisoners (annexed to
Resolution (73) 5 of the Committee of Ministers), which states
that:
"An untried prisoner shall be entitled, as soon as he is
imprisoned, to choose his legal representative, or shall be allowed
to apply for free legal aid where such aid is available, and to
receive visits from his legal adviser with a view to his defence
and to prepare and hand to him, and to receive, confidential
instructions. At his request he shall be given all necessary
facilities for this purpose. In particular, he shall be given the
free assistance of an interpreter for all essential contacts with
the administration and for his defence. Interviews between the
prisoner and his legal adviser may be within sight but not within
hearing, either direct or indirect, of a police or institution
official."
In another context, the European Agreement Relating to Persons
Participating in Proceedings of the European Commission and Court
of Human Rights, which is binding on no less than twenty member
States, including Switzerland from 1974, provides in
Article 3 para. 2:
"As regards persons under detention, the exercise of this right
[the right 'to correspond freely with the Commission and the Court'
- see paragraph 1 of the Article] shall in particular imply that:
...
c. such persons shall have the right to correspond, and consult out
of hearing of other persons, with a lawyer qualified to appear
before the courts of the country where they are detained in regard
to an application to the Commission, or any proceedings resulting
therefrom."
The Court considers that an accused's right to communicate with his
advocate out of hearing of a third person is part of the basic
requirements of a fair trial in a democratic society and follows
from Article 6 para. 3 (c) (art. 6-3-c) of the Convention. If a
lawyer were unable to confer with his client and receive
confidential instructions from him without such surveillance, his
assistance would lose much of its usefulness, whereas the
Convention is intended to guarantee rights that are practical and
effective (see inter alia the Artico judgment of 13 May 1980,
series A no. 37, p. 16, para. 33).
49. The risk of "collusion" relied on by the Government does,
however, merit consideration.
Accordingly to the Swiss courts there were "indications pointing
to" such a risk "in the person of defence counsel"; there was
reason to fear that Mr Garbade would collaborate with W.'s counsel
Mr Rambert, who had informed the Winterthur District Attorney's
Office that all the lawyers proposed to co-ordinate their defence
strategy (see paragraph 24 above).
Such a possibility, however, notwithstanding the seriousness of the
charges against the applicant, cannot in the Court's opinion
justify the restriction in issue and no other reason has been
adduced cogent enough to do so. There is nothing extraordinary in
a number of defence counsel collaborating with a view to
co-ordinating their defence strategy. Moreover, neither the
professional ethics of Mr Garbade, who had been designated as
court-appointed defence counsel by the President of the Indictments
Division of the Zürich Court of Appeal (see paragraph 14 above),
nor the lawfulness of his conduct were at any time called into
question in this case. Furthermore, the restriction in issue
lasted for over seven months (31 May 1985 to 10 January 1986).
50. The argument that the applicant was not prejudiced by the
measures in question as he was in fact able to make several
applications for provisional release must also be dismissed. A
violation of the Convention does not necessarily imply the
existence of damage (see, among many other authorities, the Alimena
judgment of 19 February 1991, series A no. 195-D, p. 56, para. 20).
51. There has therefore been a violation of Article 6 para. 3 (c)
(art. 6-3-c).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 3 (b) (art. 6-3-b)
52. S. originally also prayed in aid paragraph (b) of
Article 6 para. 3 (art. 6-3-b), claiming that the surveillance of
his conferences with his lawyer had deprived him of his right "to
have adequate time and facilities for the preparation of his
defence". However, he no longer relied on this provision before
the Court and there is no need for the Court to consider the
question of its own motion.
III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)
53. As an alternative complaint the applicant alleged that the
impossibility of conferring freely with his defence counsel had
rendered illusory his right to challenge the extension of his
detention, thereby entailing a breach of the requirements of
Article 5 para. 4 (art. 5-4), which reads as follows:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful."
Having regard to the conclusion in paragraph 51 above, the Court
sees no need to consider the matter from the point of view of
Article 5 para. 4 (art. 5-4).
IV. APPLICATION OF ARTICLE 50 (art. 50)
54. Under Article 50 (art. 50),
"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."
A. Damage
55. The applicant firstly claimed compensation for non-pecuniary
damage, and left it to the Court to assess the amount. This was to
compensate for the feeling of frustration and the deterioration of
his health which resulted from the surveillance of his lawyer's
visits.
The Government considered that a finding of a violation would in
this case constitute sufficient satisfaction. If, however, the
Court were to award pecuniary compensation, they asked it to take
into account all the circumstances of the case, in particular the
amount of damage caused by the applicant.
The Delegate of the Commission recommended an award of
2,500 Swiss francs.
The Court considers that S. must have suffered some non-pecuniary
damage. Making an assessment on a equitable basis as required by
Article 50 (art. 50), it awards him 2,500 Swiss francs under this
head.
B. Costs and expenses
56. The applicant also claimed 1,000 Swiss francs in respect of
the fees and costs which the Zürich courts ordered him to pay in
the context of his appeals against the surveillance measures, and
also 14,000 Swiss francs in respect of fees and costs relating to
the proceedings at Strasbourg.
The Government stated that they were prepared to reimburse the
costs relating only to the domestic court decisions which were
relevant from the point of view of Article 6 para. 3 (c)
(art. 6-3-c), and 2,000 Swiss francs for the European proceedings;
on this last point they note the lack of a hearing before the
Commission.
On the basis of the evidence in its possession, the observations of
the participants in the proceedings, and its own relevant case-law,
the Court considers it equitable to award 12,500 Swiss francs.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of paragraph 3 (c) of
Article 6 (art. 6-3-c);
2. Holds that it is not necessary to examine the case from the
point of view of paragraph 3 (b) of Article 6 (art. 6-3-b), or
of Article 5 para. 4 (art. 5-4);
3. Holds that the respondent State is to pay the applicant within
three months 2,500 (two thousand five hundred) Swiss francs
for non-pecuniary damage and 12,500 (twelve thousand five
hundred) Swiss francs for costs and expenses;
4. 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 28 November 1991.
Signed: John CREMONA
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of the Rules of Court, the separate opinions of
Mr Matscher and Mr De Meyer are annexed to this judgment.
Initialled: J.C.
Initialled: M.-A.E
SEPARATE OPINION OF JUDGE MATSCHER
(Translation)
I voted with the majority in respect of the violation of
Article 6 para. 3 (b) (art. 6-3-b), but I wish to make the
following points:
1. I acknowledge that, in principle, it must be possible for a
defendant to communicate with his defence counsel freely and
without surveillance.
2. However, this is not an absolute principle; there are
exceptional situations where surveillance of the defendant's
communications with his counsel may be necessary and hence
compatible with the principle stated above. That this may be a
real necessity is shown by the not so infrequent cases of serious
collusion between lawyers and persons in custody which have
occurred in several countries in recent years.
My criticism of the reasoning of the present judgment is that it
- correctly - sets out the principle but - wrongly - does not
explicitly state the possibility of exceptions, which in my opinion
is an essential corollary of the principle, both being necessary in
the interests of the proper administration of justice.
I voted in favour of a violation in the present case, on the ground
that, on the facts, the conditions for invoking the exception
mentioned at point 2 above were not satisfied.
CONCURRING OPINION OF JUDGE DE MEYER
(Translation)
I consider it advisable to emphasise that the freedom and
inviolability of communications between a person charged with a
criminal offence and his lawyer are among the fundamental
requirements of a fair trial. They are inherent in the right to
legal assistance and are essential for the effective exercise of
that right*.
_______________
* It is not enough to say that communications must take place "out
of hearing of a third person", as there are too many other ways of
violating their confidential nature for one to be content with
formulae of this kind.
_______________
The same applies to communications between a lawyer and his
colleagues. It is perfectly legitimate for him to act in concert
with them. The fact that this may lead to a coordination of
defence strategy cannot - even or especially in the case of serious
offences - be used as a pretext for the restriction or surveillance
of communications between a lawyer and his client.
I do not think that there can be any exceptions to these
principles*.
_______________
* Security checks may be admissible, but only to the extent that
they do not prejudice the freedom and inviolability of the
communications in question.
_______________