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You are here: BAILII >> Databases >> European Court of Human Rights >> W. v. SWITZERLAND - 14379/88 [1993] ECHR 1 (26 January 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/1.html
Cite as: [1993] ECHR 1, 17 EHRR 60, (1994) 17 EHRR 60
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In the case of W. 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 R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr J. De Meyer,
Mr S.K. Martens,
Mr A.N. Loizou,
Sir John Freeland,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 29 August and
26 November 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 92/1991/344/417. 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 December 1991 and by the
Government of the Swiss Confederation ("the Government") on
10 January 1992, 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. 14379/88) against
Switzerland lodged with the Commission under Article 25 (art. 25) by
Mr W., a Swiss national, on 20 September 1988.
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 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 5 para. 3 (art. 5-3).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant - whose
identity the Court agreed not to disclose - stated that he wished to
take part in the proceedings and designated the lawyer who would
represent him (Rule 30); the President gave the said lawyer leave to
use the German language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr L. Wildhaber, 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 24 January 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr L.-E. Pettiti, Mr B. Walsh,
Mr J. De Meyer, Mr S.K. Martens, Mr A.N. Loizou and Sir John Freeland
(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 organisation of the proceedings (Rules 37 para. 1 and
38). Pursuant to the order made in consequence, the Registrar received
the Government's memorial on 19 June and the applicant's claims under
Article 50 (art. 50) on 23 June.
5. On 22 April, 5 May and 23 June 1992, the Commission, the
Government and the applicant produced various documents, including some
requested by the Registrar on the President's instructions.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
28 August 1992. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr O. Jacot-Guillarmod, Under-Secretary
of the Federal Office of Justice,
Head of the International Affairs Division, Agent,
Mr T. Maurer, President of the Economic
Criminal Court of the Canton of Berne,
Mr B. Schnell, Cantonal Attorney of the Canton of Berne
for economic criminal cases,
Mr F. Schürmann, Deputy Head of the
Department of European Law and International
Affairs, Federal Office of Justice, Counsel;
(b) for the Commission
Mrs J. Liddy Delegate;
(c) for the applicant
Mr P. Saluz, Fürsprecher, Counsel.
The Court heard addresses by Mr Jacot-Guillarmod, Mr Maurer and
Mr Schnell for the Government, Mrs Liddy for the Commission and
Mr Saluz for the applicant, and also their replies to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
7. The applicant is a Swiss businessman who with eleven accomplices
was prosecuted for a series of economic offences, including a large
number of frauds in the management of some sixty companies. He was
arrested on 27 March 1985 and placed in pre-trial detention with six
of his co-accused, on the grounds that there was a risk of absconding,
collusion and repetition of offences.
A. The investigation
8. The first complaints relating to him had reached the criminal
police of the Canton of Berne in October 1982, inter alia following a
number of fraudulent bankruptcies. In October 1984 the cantonal
authorities asked the Interpol agencies in Germany, the United States
of America, the United Kingdom, Monaco and several Caribbean countries
to make inquiries about the applicant, and opened a preliminary
investigation against him on 8 February 1985.
In view of the complexity of the case they set up in mid-1985 a
subsection of the office of the investigating judge
(Untersuchungsrichteramt) of the Canton of Berne, consisting of two
investigating judges assigned exclusively to the investigation, under
the authority of a cantonal attorney at the Berne Court of Appeal
(Obergericht) and the indictments chamber (Anklagekammer) of that
court. They were assisted by specialist police officers and
considerable facilities were made available to them (secretariat,
computer, archives).
9. In the period from March 1985 to June 1986 their investigation,
which traced events back as far as 1977, gave rise to eighteen
searches, including several at W.'s residence and the office of the
companies he controlled. Documents in large quantities were found
there, mostly in utter disorder, some in the cellar, some in the
bathroom and even some in bin bags ready to be destroyed. W. had in
fact altered the accounts of his companies, some of which were
incidentally fictitious, in order to thwart possible investigations.
On 3 April 1985 the authorities froze assets in seventeen banks and
issued warrants relating to other credit institutions. They drew up
a list of about two hundred accounts in all which were affected by the
fraudulent dealings of the applicant and his accomplices.
In 1985 and 1987 money and valuables belonging to the applicant and
his co-accused were seized following orders or searches. These were
dated 27 and 28 March, 3 April, 4 May, 2, 3 and 27 June, 5 September,
3 October and 25 November 1985, 16 and 19 January, 9 February, 5 March,
14 May, 2 July, 19 and 21 August and 1 December 1987.
The investigators also had to have recourse to international
judicial assistance, in particular from the Munich public prosecutor's
office. That office sent them a report dated 16 April 1987, as a
result of which the Swiss authorities extended their inquiries to
Germany and took over criminal proceedings instituted against W. in
that country.
On 11 December 1987 the investigating judges requested thirteen
insolvency practitioners to provide documents relating to seventeen
companies. The last of these reached them in December 1988 and
January 1989.
On 26 May 1988, in view of the urgency, they severed the
proceedings against the applicant from those against two accomplices.
10. The applicant twice challenged the investigating judges. He also
brought eleven appeals and two complaints against decisions by them
restricting access to the case-file at the beginning of the
investigation. The accused were eventually given access to nine-tenths
of the file from May 1986 and the entire file from 22 October of that
year. W. had meanwhile reacted by deciding on 11 April 1986 to make
no further statements.
On 28 June 1988 he complained of other irregularities, stating that
documents had not been given to him and his lawyer had been unable to
obtain free photocopies of them. The indictments chamber dismissed his
complaint on 27 July 1988. After the committal for trial (see
paragraph 13 below) the authorities on 13 October and 30 November 1988
and 3 January 1989 allowed the case-file to be consulted by the defence
for nine, seven and five half-days respectively.
There was another incident when W. was not permitted to be present
at certain investigative acts. On 27 January 1987 the indictments
chamber decided that in principle he had the right to attend these.
His request of 18 December 1987 that there should be no supervision
of the visits by his wife was dismissed by the indictments chamber on
16 February and the Federal Court on 19 May 1988.
11. During his pre-trial detention W. committed further offences, which
resulted in an additional conviction for fraudulent bankruptcy and
criminal mismanagement (see paragraph 24 below); the general meeting
of a company controlled by him, which took place in prison on
11 October 1985 in the presence of a lawyer (advocate and notary), had
allowed the latter to use a power of attorney to issue bonds secured
on the property of the said company and used as security for the
applicant's personal debts.
12. Once the basic documentation had been collected and sorted, the
authorities in October and July 1986 also ordered three expert reports,
one from a psychiatrist and two from accountants, the latter following
a defence request for evidence of 6 September 1985, the only such
request made by them in the course of the investigation. The reports
were filed on 22 December 1986 and in April 1987. The psychiatric
report concluded that the applicant was fully criminally liable, and
described him as a confidence trickster (Hochstapler) and an
unrestrained hedonist (hemmungsloser Hedonist) who had no scruples
about causing harm to others.
13. On 29 April 1988 the investigating judges declared, pursuant to
Article 98 of the Berne Code of Criminal Procedure (see paragraph 25
below), that they would request the cantonal attorney's office to
commit W. for trial before the Economic Criminal Court
(Wirtschaftsstrafgericht) of the canton. The order committing for
trial (Überweisungsbeschluß) was made on 2 September 1988.
The investigators had carried out a total of approximately 350
interrogations. From 11 April 1986 to 12 July 1988 the applicant
himself had been questioned thirty-six times, but he had always refused
to answer the questions put to him (see paragraph 10 above). The
transcripts recording the questions and noting his silence filled
almost 700 pages.
In September 1987 the main case-file comprised about 600 binders.
At the time of the trial there were 711, together with the original
documents which themselves took up over 120 metres of shelving.
The amount of the damage had been estimated at over 50 million
Swiss francs.
B. The applicant's applications for release
14. From 29 March 1985 to 18 May 1988, twenty-five applications for
release were submitted by the persons in pre-trial detention in this
case. Eight of them came from the applicant. The first of these, made
on 24 May 1985, was dismissed by the indictments chamber on 1 July.
The indictments chamber also dismissed on 22 July 1985 a complaint of
8 July and on 28 August a complaint of 2 August, relating respectively
to the lawyer who had been appointed for W. and his visiting rights.
15. On 13 September 1985 the indictments chamber turned down a further
application of 26 August 1985. A public law appeal to the Federal
Court was dismissed on 7 November 1985, as that court considered that
all the conditions to which pre-trial detention was subject under
Article 111 of the Berne Code of Criminal Procedure had been fulfilled
(see paragraph 25 below). The court felt that the serious suspicions
against W. were supported by the case-file; moreover, he had
transferred his residence to Monte Carlo, and his numerous stays in
Germany, England, the United States of America and Anguilla also gave
reason to fear that he might try to evade the Swiss judicial
authorities; as to the very genuine risk of collusion, this resulted
from the way in which the applicant's various companies were entangled
and from the large number of his associates.
The Federal Court, however, invited the investigators to act with
diligence and in particular to question as soon as possible the persons
likely to collude with the applicant, as in the court's opinion the
complexity of the facts alone could not justify detention for several
years.
16. W. brought a third application for release on 17 March 1986. It
was dismissed by the indictments chamber in a decision of 4 June 1986,
which was upheld by the Federal Court on 25 August, following a public
law appeal. The Federal Court said that even a summary reading of
certain transcripts of interrogations showed that there was serious
suspicion against the applicant of multiple fraud and fraudulent
bankruptcy; he was wrong in claiming that this suspicion was unfounded
in the specific cases cited by the indictments chamber in justifying
the already considerable duration of the detention in issue.
Moreover, the danger of absconding and that of collusion still both
persisted, the former because of the applicant's good relations with
foreign countries and his stated intention of starting a new life in
the United States, and the latter in the light of his conduct before
his arrest and during the investigation. However, as the last of the
co-accused had now been arrested and the principal witnesses had
already made statements, this ground could no longer be relied upon
without specifying the collusive acts which were feared.
Furthermore, W. was primarily responsible for the length of his
detention; the lack of any proper accounts of his companies had made
it extremely difficult to identify the financial transfers by means of
which the companies had been burdened for personal ends. Despite this,
the investigating judges had worked intensively. All things
considered, the detention complained of did not yet appear to be too
long. It was nevertheless disturbing that not much progress had been
made with the systematic processing of the documents and the production
of a report for the purpose of indicting the applicant. Secondly,
there was still some doubt as to whether expert reports on the
accounting and psychiatric aspects were needed. A close watch had to
be kept on these points.
17. A fourth application for release was made on 12 December 1986, and
dismissed by the indictments chamber on 20 January 1987.
The applicant brought a public law appeal against this decision;
he complained of the time taken to produce the accounting report, and
of the alleged inability of the authorities to complete the file. The
Federal Court gave its ruling on 24 March 1987. It considered that the
applicant's disregard of the elementary rules of bookkeeping was the
reason why it had not been possible to complete the expert report
earlier; and the accusation against W. was precisely that
he had mingled funds of his various companies. Since the judgment of
25 August 1986 (see paragraph 16 above) the authorities had taken
account of its observations on the processing of the documents, so that
in this respect the investigation could not be criticised, bearing in
mind in particular the very large number of documents to be classified.
That the authorities had entrusted the investigation to a team of two
investigating judges also showed the great importance they attached to
it. As to the psychiatric report and accountancy reports, which were
moreover on the point of being filed, there had been no delay in
drawing them up, since W. was refusing to answer any questions at all.
In short, the detention in issue had not yet exceeded the maximum
period allowed.
The court added, however:
"... a practice according to which an accused who was suspected of
serious economic offences but not of acts of violence necessarily
had to remain in detention until final judgment in his case,
merely because of a general risk of absconding, would not be
compatible with the fundamental right of personal freedom ... .
It should also be taken into account in this respect that the
incentive to abscond generally decreases as the proportion of time
already spent in detention increases. The investigating judges,
the public prosecutor's office and the indictments chamber will
therefore, after carrying out the few investigative acts in
respect of which a certain danger of collusion can still be
presumed, but at the latest after a period of detention of two and
a half years, have to consider the applicant's release subject to
appropriate substitute measures within the meaning of Article 111a
of the Berne Code of Criminal Procedure. The case would be
different only if specific indications of [W.'s] intention to
abscond were by then present. The risk of repeated offending ...
would on the other hand probably not be of relevance as a ground
for detention in the case of the applicant, who has no previous
convictions."
18. On 3 August 1987 the applicant once more requested the indictments
chamber to terminate his detention. This was refused in a decision of
4 September 1987.
The Federal Court dismissed the applicant's public law appeal on
29 October 1987. In its opinion the slowing down of the investigation,
noted since its last judgment (see paragraph 17 above), was not open
to criticism, as the Swiss authorities had in the meantime taken over
the proceedings brought against W. by the Munich public prosecutor's
office (see paragraph 9 above), and this had entailed additional work.
In this respect the investigators could not be blamed either for having
often questioned the applicant on these proceedings despite his refusal
to make a statement; their sole aim had been to allow W. to exercise
his rights of defence. No failure to observe the requirement of acting
swiftly had resulted; rather it was the applicant's attitude which
amounted to delaying the investigation by any legal means. In view of
the minimum sentence of five years' imprisonment which the applicant
was likely to receive, the pre-trial detention of two years and seven
months had in any event not yet reached the critical level.
The Federal Court also invited the investigating judges to
reconsider, by the end of January 1988, the length of the detention in
issue. On 31 January 1988 they took a decision to extend it
(Haftbelassungsbeschluß).
19. The applicant's sixth application for release had meanwhile been
made to the indictments chamber on 2 December 1987. It had dismissed
it on 9 December on the grounds that nothing had changed since the
Federal Court's last judgment of 29 October 1987 (see paragraph 18
above); it considered that there was still a danger of absconding and
collusion. W. did not appeal against this decision.
20. On 1 February 1988 he once more requested his release. The
indictments chamber refused this on 18 February, and he appealed to the
Federal Court.
The Federal Court dismissed the appeal on 25 April 1988. It held
that the indictments chamber had not breached the Constitution or the
Convention in considering that there was still a danger of absconding;
in his application of 1 February 1988, W. had moreover refused to
provide a security.
Apart from the applicant himself, the authorities were also partly
responsible for the delays in the investigation; they had put forward
in explanation reasons - such as the taking over of the German file
(see paragraph 9 above) and the different charges against the various
co-accused - which they had already been aware of on 13 August 1987,
when they said that the investigation would be completed in early 1988.
These delays admittedly had not brought about an excessive prolongation
of the deprivation of liberty in issue, but in the Federal Court's
opinion it was necessary to close the investigation as quickly as
possible.
The Federal Court said:
"The judge deciding on detention may prolong the pre-trial
detention only to the extent that its duration does not come too
close to the sentence to be expected in the specific case; he must
not, for example, take the possible maximum sentence as a
reference point. Great attention must also be paid to this limit
because the trial court might be inclined to take the length of
pre-trial detention into account as one factor in determining the
sentence. To this extent there is thus a sort of absolute maximum
length of pre-trial detention ... . However, even the European
Convention institutions allow detention for several years in cases
which are both highly complex and also subject to heavy sentences
..."
In this instance the length of the detention had not yet reached
the critical level, as the total sentence which could be expected was
now considerably more than five years' imprisonment.
21. On 18 May 1988 the applicant submitted his eighth application for
release; he supplemented this on 7 June 1988 by offering a security of
a maximum of 30,000 Swiss francs (CHF). The indictments chamber
dismissed the application on 27 June 1988, inter alia on the grounds
that he had not given any information on the third party who would pay
the money and that the sum appeared derisory in view of the size of the
case and the personality of the defendant.
On a public law appeal by the applicant, the Federal Court quashed
the decision on the grounds that Article 5 para. 4 (art. 5-4) of the
Convention had been violated, as W. had not had an opportunity to reply
to the arguments of the investigating judge and the cantonal attorney
before the indictments chamber.
22. Rehearing the application, the indictments chamber on
6 September 1988 refused to release the applicant, who again appealed
to the Federal Court. That court gave judgment on 15 November 1988;
it considered that at this stage of the proceedings, after the end of
the investigation and the committal for trial (see paragraph 13 above),
pre-trial detention on the ground of a risk of collusion could only be
justified by specific evidence, such as in this case the applicant's
personality and the numerous examples of forgery and interference with
witnesses already shown to have been done by him in specific cases.
It quashed the decision, however, on the grounds that the indictments
chamber, when assessing the maximum permissible period of the detention
in issue, had omitted to consider whether there were special
circumstances in W.'s case which meant that the possibility of his
conditional release should be taken into account.
23. On 10 January 1989 the indictments chamber dismissed the
application of 18 May 1988 (see paragraph 21 above) for the third time.
The Federal Court upheld its decision on 23 February 1989: having
regard to the number and nature of the offences the applicant was
accused of, and to his conduct during the investigation and the
conclusions of the psychiatric report (see paragraph 12 above), the
indictments chamber had been right to conclude that there were no
reasons making conditional release appear very probable.
C. The applicant's trial
24. The trial before the Economic Criminal Court (see paragraph 13
above) opened on 17 February 1989 and ended on 30 March 1989 with the
applicant being convicted and sentenced to eleven years' imprisonment
and a fine of CHF 10,000, for offences including fraud on a
professional basis (gewerbsmäßiger Betrug), fraudulent bankruptcy
(betrügerischer Konkurs), forgery of documents (Urkundenfälschung) and
aggravated criminal mismanagement (qualifizierte ungetreue
Geschäftsführung). The 1,465 days spent in pre-trial detention were
deducted from the main sentence.
II. Relevant domestic law
25. The Code of Criminal Procedure (Gesetz über das Strafverfahren) of
the Canton of Berne provides that:
Article 98
"When the investigating judge regards the investigation as
sufficient, he shall notify this to the parties whose addresses
are known. If it is for the investigating judge and the district
attorney to decide on committal, the investigating judge shall
state whether he intends to request that the proceedings be stayed
or discontinued or the accused be committed for trial.
The parties may, within a period from such notification determined
by the judge, apply in writing, giving brief reasons, for
specified further investigative measures or additional questions
and express their opinion on the outcome of the proceedings. If
the investigative measures applied for are ordered, the parties
may be present at their implementation."
Article 111
"During the preliminary investigation the accused shall as a rule
remain at liberty.
The investigating judge shall however be empowered to arrest him
if there are specific and serious grounds for suspecting him as
perpetrator or accomplice, and in addition there are reasons for
supposing
(a) that there is a risk of absconding, or
(b) that the accused would abuse his liberty in order to
frustrate or endanger the discovery of the true facts
of the matter, or
(c) that the accused, if he has intentionally committed a
further criminal offence (Verbrechen oder Vergehen)
during the proceedings, will commit further criminal
offences.
A risk of absconding shall be presumed if the accused has no fixed
residence in Switzerland.
..."
26. According to the Swiss Federal Court, the unwritten constitutional
right to individual freedom is to be interpreted in the light of
Article 5 para. 3 (art. 5-3) of the Convention and the case-law of the
Strasbourg institutions, and requires that pre-trial detention must not
be excessively prolonged. Each case must be assessed individually,
with the accused's right to liberty being balanced against the State's
right to bring criminal proceedings and enforce sentences. If the
length of the detention is excessive, the detainee must be released
even if serious suspicions and the danger of absconding still subsist
(Decisions of the Swiss Federal Court, 108 Ia 66; 107 Ia 257/258;
105 Ia 29/30).
PROCEEDINGS BEFORE THE COMMISSION
27. Mr W. applied to the Commission on 20 September 1988. He
complained of the length of his pre-trial detention.
The Commission declared the application (no. 14379/88) admissible
on 9 October 1990. In its report of 10 September 1991 (made under
Article 31) (art. 31), it expressed the opinion by nineteen votes to
one that there had been a violation of Article 5 para. 3 (art. 5-3) of
the Convention. The full text of the Commission's 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 254-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
28. The applicant claimed that the length of his pre-trial detention
had been in breach of Article 5 para. 3 (art. 5-3), which reads as
follows:
"Everyone arrested or detained in accordance with the provisions
of paragraph 1 (c) of this Article (art. 5-1-c) ... shall be
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for
trial."
The Government contested this view, whereas the Commission agreed
with it.
29. The period to be taken into consideration began on 27 March 1985,
the date of W.'s arrest, and ended on 30 March 1989 with his conviction
by the Berne Economic Criminal Court (see paragraphs 7 and 24 above).
It thus lasted for four years and three days.
30. The Commission's opinion was based on the idea that
Article 5 para. 3 (art. 5-3) implies a maximum length of pre-trial
detention. The Court cannot subscribe to this opinion, which moreover
finds no support in its case-law. That case-law in fact states that
the reasonable time cannot be assessed in abstracto (see, mutatis
mutandis, the Stögmüller v. Austria judgment of 10 November 1969,
Series A no. 9, p. 40, para. 4). As the Court has already found in the
Wemhoff v. Germany judgment of 27 June 1968, the reasonableness of an
accused person's continued detention must be assessed in each case
according to its special features (Series A no. 7, p. 24, para. 10).
Continued detention can be justified in a given case only if there are
specific indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty.
It falls in the first place to the national judicial authorities
to examine all the circumstances arguing for or against the existence
of such a requirement and to set them out in their decisions on the
applications for release. It is essentially on the basis of the
reasons given in these decisions and of the true facts stated by the
applicant in his appeals that the Court is called upon to decide
whether or not there has been a violation of Article 5 para. 3
(art. 5-3).
The persistence of reasonable suspicion that the person arrested
has committed an offence is a condition sine qua non for the lawfulness
of the continued detention, but after a certain lapse of time it no
longer suffices: the Court must then establish whether the other
grounds given by the judicial authorities continued to justify the
deprivation of liberty. Where such grounds were "relevant" and
"sufficient", the Court must also ascertain whether the competent
national authorities displayed "special diligence" in the conduct of
the proceedings (see, as the most recent authority, the Tomasi v.
France judgment of 27 August 1992, Series A no. 241-A, p. 35,
para. 84).
A. The reasons for continued detention
31. In refusing to release W. the Swiss courts relied, in addition
to the serious suspicion against him, on three principal grounds, which
the Government also argued from: the danger of absconding, the risk of
collusion and the need to prevent the accused committing further
offences.
1. The danger of absconding
32. According to the applicant, the longer his detention lasted the
more the likelihood of his absconding from justice was reduced. After
a certain time it was in his interest to serve his sentence which,
having regard to the possibility of conditional release, would hardly
exceed the detention already undergone. He added that he had offered
to provide a security and had not taken advantage of prison leave
granted after his conviction to abscond.
33. The Court points out that the danger of absconding cannot be gauged
solely on the basis of the severity of the possible sentence; it must
be assessed with reference to a number of other relevant factors which
may either confirm the existence of a danger of absconding or make it
appear so slight that it cannot justify pre-trial detention (see, as
the most recent authority, the Tomasi judgment cited above, Series A
no. 241-A, p. 37, para. 98). In this context regard must be had in
particular to the character of the person involved, his morals, his
assets, his links with the State in which he is being prosecuted and
his international contacts (see, mutatis mutandis, the Neumeister v.
Austria judgment of 27 June 1968, Series A no. 8, p. 39, para. 10).
In their carefully reasoned decisions the Bernese courts based
themselves on specific characteristics of the applicant's situation:
after transferring his residence from Switzerland to Monte Carlo, he
had frequently visited Germany, England, the United States and the
island of Anguilla (where he was supposed to be the owner of a bank);
he had thus established numerous close connections with foreign
countries. Furthermore, he had stated on several occasions that he
wished to go and live in the United States. There were certain
indications that he still had considerable funds at his disposal
outside his own country and possessed several different passports. As
a solitary man who had no need of contacts, he would have had no
difficulty in living in concealment outside Switzerland.
The Federal Court examined these reasons carefully on
7 November 1985, 25 August 1986 and 25 April 1988 (see paragraphs 15,
16 and 20 above). On the last of these dates in particular it
acknowledged that the danger of absconding decreased as the length of
detention increased, as already noted by the European Court (see, inter
alia, the Neumeister judgment cited above, Series A no. 8, p. 39,
para. 10). However, it considered that the factors specified by the
indictments chamber left no real doubt as to W.'s intention of
absconding and could legitimately suffice to demonstrate that such a
danger still existed.
There is no reason for the Court to reach a different conclusion.
In this case the investigation constantly brought to light further
offences which were likely to result in a more severe sentence. In
addition, the circumstances of the case and the applicant's character
entitled the relevant courts to decline his offer to provide security
of 18 May 1988 (something which he was still refusing to do a short
time previously, on 1 February): both the amount (CHF 30,000) and the
unknown provenance of the money to be paid meant that it was not a fit
guarantee that the applicant would decide not to abscond in order not
to forfeit it (see paragraph 21 above).
Finally, the fact that once convicted the applicant returned to
prison after each leave cannot retrospectively invalidate the view
taken by the courts.
2. The danger of collusion
34. W. argued that the risk of collusion could in any event not have
continued beyond 29 April 1988, the date when the investigating judges
declared that they would seek committal for trial (see
paragraph 13 above); at the latest on that date the case-file must have
progressed to a point where such a danger had been dispelled.
35. The Court readily understands that the authorities may consider it
necessary to keep a suspect in prison, at least at the beginning of an
investigation, in order to prevent him from confusing it, especially
in a complicated case like this one where manifold difficult inquiries
are necessary. In the long term, however, the requirements of the
investigation no longer suffice - even in such a case - to justify such
detention: in the normal course of events the risks alleged diminish
with the passing of time as inquiries are effected, statements taken
and verifications carried out (see the Clooth v. Belgium judgment of
12 December 1991, Series A no. 225, p. 16, para. 43).
36. In order to demonstrate that a substantial risk of collusion
existed and continued to exist until the beginning of the trial, the
indictments chamber referred essentially to the exceptional extent of
the case, the extraordinary quantity of documents seized and their
intentionally confused state, and the large number of witnesses to be
questioned, including witnesses abroad. It based a secondary argument
on the personality of the applicant, whose behaviour both before and
after his arrest reflected his intention of systematically deleting all
evidence of liability, for example by falsifying or destroying
accounts. According to the indictments chamber, there were also
specific indications justifying the fear that he might abuse his
regained liberty by carrying out acts, which would also be facilitated
by the thorough entanglement of the sixty-odd companies controlled by
him and his influence on their employees, namely eliminating items of
evidence which were still hidden but whose probable existence followed
from other documents, manufacturing false evidence, or conniving with
witnesses. Finally, the indictments chamber noted the extension in
April 1987 of the investigation to offences which had been committed,
and had originally been the subject of proceedings, in Germany.
The Federal Court was appealed to several times, and on each
occasion examined scrupulously whether these considerations did indeed
make continued detention necessary. Admittedly, it invited the
investigating judges on 7 November 1985, 4 June 1986, 24 March 1987 and
25 April 1988 to act with diligence and obtain the missing documents
and statements as soon as possible (see paragraphs 15-17 and 20 above),
but at no time did it exclude the existence of a danger of collusion.
On the contrary, it confirmed that such a risk was present even during
the period following the close of the investigation and the committal
for trial (2 September 1988). It had regard not only to W.'s
personality and antecedents, but also primarily to the circumstance
that, according to the case-file, W. had in the context of other
proceedings had exonerating evidence manufactured, documents antedated
and witnesses manipulated (see paragraph 22 above).
Here too the Court sees no reason for disagreeing with the Federal
Court's opinion. Consequently, the national authorities were entitled
to regard the circumstances of the case as justification for using the
risk of collusion as a further ground for the detention in issue.
3. The danger of repetition of offences
37. The Government argued that there had also been a risk that the
applicant would commit further offences if released. Although the
indictments chamber considered that it was still reasonable to regard
it as necessary to prevent him so doing, the Federal Court did not
examine the impugned decisions on this point, as the dangers of
absconding and collusion in themselves justified the continued
detention. The Court shares this opinion.
4. Summary
38. To sum up, the two above-mentioned dangers were relevant and
sufficient reasons in this case; they were not mere "residual" risks,
as the Commission appears to have thought (see paragraph 145 of its
report).
B. The conduct of the proceedings
39. The conduct of the proceedings must also be examined (see paragraph
30 above).
40. The applicant complained that the investigating judges had caused
substantial delays in the investigation: they had continued to question
him for weeks on end even though he had made it clear to them on 11
April 1986 that, pursuant to his right of silence, he would not answer
any more of their questions. In addition, they had not had the
necessary infrastructure for the investigation, which had moreover been
complex up to a point only, as in the absence of accounts there had not
been any documents to check.
41. The Government for their part stressed that the case was the most
difficult case of economic crime so far dealt with in the Canton of
Berne. It exceeded by far all other cases of the same type, both in
extent and in complexity; the documents collected took up 120 metres
of shelf space. Moreover, no other pre-trial detention had ever lasted
so long. The authorities had neglected nothing in order to complete
the case-file and had even established a unit consisting of two
investigating judges who were themselves assisted by persons assigned
exclusively to that unit, including two specialist policemen and four
secretaries; a cantonal attorney was in charge of supervising them.
There had also been substantial technical resources, including computer
equipment. A total of 350 interrogations, including 36 of the
applicant, and some 30 decisions on appeals by the applicant had been
needed to reach the final judgment, which was 1,100 pages long.
The applicant had moreover not made any complaint at all on the
manner in which the investigation had been conducted. The sole aim of
his repeated interrogations had been to allow him to exercise his
rights of defence with respect to each new piece of evidence disclosed
by the inquiry.
42. The Court notes that as early as 7 November 1985 the Federal Court,
when verifying the proportionality of the length of the impugned
deprivation of liberty, gave consideration to the conduct of the
proceedings. After an examination it concluded that W.'s complaints
in this respect were not substantiated (see paragraph 40 above).
Fearing an overlong period of pre-trial detention, it regularly urged
the cantonal authorities to act with all speed and even gave them
specific instructions, and also observed that these had been complied
with. Consequently, despite certain worries, it never regarded the
time spent by the applicant in prison as excessive. It considered that
the applicant was primarily responsible for the slow pace of the
investigation: there had been great difficulties in reconstructing the
financial situation of his companies, as a result of the state of their
accounts. It stated that things had become even more difficult when
he decided to refuse to make any statement, thereby delaying the
progress of the case (see paragraph 10 above).
Having regard to the intensive continuous review thus carried out
by the highest national court, the Court agrees in substance with the
Government's arguments summarised in paragraph 41 above. It notes that
the right of an accused in detention to have his case examined with
particular expedition must not hinder the efforts of the courts to
carry out their tasks with proper care (see among other authorities,
mutatis mutandis, the Wemhoff and Tomasi judgments, cited above,
Series A no. 7, p. 26, para. 17, and no. 241-A, p. 52, para. 102). In
agreement with the Commission on this point, it finds no period during
which the investigators did not carry out their inquiries with the
necessary promptness, nor was there any delay caused by possible
shortage of personnel or equipment. Consequently, it appears that the
length of the detention in issue was essentially attributable to the
exceptional complexity of the case and the conduct of the applicant.
To be sure, he was not obliged to co-operate with the authorities, but
he must bear the consequences which his attitude may have caused for
the progress of the investigation.
C. Conclusion
43. The Court accordingly concludes that there has not been a violation
of Article 5 para. 3 (art. 5-3).
FOR THESE REASONS, THE COURT
Holds by five votes to four that there has not been a violation of
Article 5 para. 3 (art. 5-3).
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 26 January 1993.
Signed: For the President
Franz MATSCHER
Judge
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 following separate
opinions are annexed to this judgment:
(a) dissenting opinion of Mr Pettiti;
(b) dissenting opinion of Mr Walsh and Loizou;
(c) dissenting opinion of Mr De Meyer.
Initialled: F.M.
Initialled: M.-A.E.
DISSENTING OPINION OF JUDGE PETTITI
(Translation)
I have voted for finding a violation of Article 5 (art. 5), I
dissociate myself entirely from the vote of the majority of the
Chamber, and I regret that the case was not referred to the plenary
Court.
In my opinion, the decision in the case of W. in fact departs from
the traditional case-law of the European Court on the presumption of
innocence and the restrictions to be imposed on pre-trial detention
measures.
The decision which has been taken, even if it applies only to W.'s
case, could be interpreted as approving pre-trial detention of four
years in cases relating to economic legislation: bankruptcies, offences
against company law, criminal mismanagement, etc.
The philosophy of Article 5 (art. 5) and of the European Convention
leads me to adopt such a dissenting opinion. Article 5 (art. 5) is an
article which protects personal freedom and limits pre-trial detention
to specific cases, which must necessarily be given a restrictive
interpretation.
Article 5 in combination with Article 6 (art. 5, art. 6) is an
important provision of the Convention for protecting the presumption
of innocence.
The Court, whether in plenary session or sitting as a Chamber, had
always adopted a strict approach to reviewing compliance with Article 5
(art. 5), tending to limit the length of pre-trial detention. In the
present case the reasoning of the Swiss Federal Court has prevailed.
In my opinion the Federal Court wrongly adopted a criterion for
assessment with respect to the risk of absconding which adds to the
wording of Article 5 (art. 5). One cannot indeed reverse the burden
of proof and require the detainee to prove that he will not abscond,
a negative which is virtually impossible to prove. That would be to
add a further exception to Article 5 (art. 5), as only imprisonment
removes all danger of absconding.
In the present case the judicial authorities made no real attempt
to require large sums as security (a normal practice in Switzerland)
or lay down conditions for strict judicial supervision, which would
have warded off any danger of absconding, while the existence of
residences abroad was not enough to make such danger certain. The
cantonal judicial authorities appear to have been overburdened by the
number of files relating to W.; but in bankruptcy cases liquidators'
reports, civil actions by creditors, and expert reports produced in the
bankruptcy procedure all provide precise evidence which may speed up
the investigative procedures. The volume of documentation does not
indicate any exceptional complexity, as it consisted primarily of
account books and commercial documents.
In interpreting Article 5 (art. 5) and the nature of pre-trial
detention, it must be borne in mind that liberty is the rule, detention
the exception. Provisional or pre-trial detention must not damage the
presumption of innocence. But that presumption is not only the fact
of not being regarded by the judge as guilty, nor the fact of not being
presented to third parties as guilty, but also the fact of making it
possible for a defendant to cope with his position as an accused until
his trial. As an extreme case, a person who knows he is guilty must
be able, by remaining at liberty after being charged, to orientate his
professional and family life and make arrangements for the future. In
any event, as the European Court has often stated, pre-trial detention
cannot be used to anticipate the sentence (Letellier judgment of
26 June 1991; Tomasi judgment of 27 August 1992); it cannot reflect the
judge's feeling or opinion as regards the accused's guilt.
Referring to the traditional case-law of the European Court, it
will be seen that in cases such as Neumeister (judgment of
27 June 1968) and Stögmüller (judgment of 10 November 1969) the Court
did not accept detention even for approximately two years.
Referring to comparative criminal law, it will be seen that the
average length of pre-trial detention is less than two or three months
and that with respect to economic offences and bankruptcies the average
length is less than one year.
The Code of Criminal Procedure of the Canton of Berne provides in
Article 111 that "during the preliminary investigation the accused
shall as a rule remain at liberty", unless there is a risk of
absconding, a risk that the discovery of the truth would be frustrated
if the accused abuses his liberty, or a fear - if the accused has
intentionally committed a further criminal offence during the
proceedings - that he may commit other similar offences. These rules
do not appear to have been applied strictly in W.'s case.
Criminologists are also mindful of the fact that every year
thousands of persons accused of offences, who have been kept in
pre-trial detention, possibly for a long period, have the charges
against them dropped or are acquitted. Detention in such cases creates
an injustice or an obvious social disorder which results in the
judicial system being criticised.
The fact that the Swiss Federal Court delivered a very long
judgment and upheld a severe sentence cannot in the circumstances
justify the long period of detention, especially as the Swiss Federal
Court had previously, with respect to the risk of collusion, partly
quashed a decision to extend the detention which had been based on a
criterion it considered open to criticism.
The European Commission originally put forward seven criteria for
reviewing pre-trial detention. In the W. case the European Commission
rightly found in its first report certain points of fact and procedure
which induced it to vote by nineteen votes to one that there had been
a violation of the Convention: bankruptcies between 1982 and 1984 (the
facts went back to 1977); W.'s arrest on 17 March 1985; six out of
twelve co-accused remained at liberty; eighteen searches between
March 1985 and June 1986; first warrants issued from 3 April 1985;
thereafter a series of rather confused stages:
"26. At the early stages of the proceedings difficulties arose
with regard to the various accused persons' right to consult the
case-file. At one stage, the investigating authorities considered
that consultation of the case-file would have to be refused for
some years. Altogether fourteen complaints and appeals were filed
against various decisions of the investigating authorities. After
April 1986 the accused were permitted to consult approximately 90%
of the case-file, after 22 October 1986 virtually the entire
case-file.
27. On approximately 350 occasions the investigating
authorities questioned the applicant, the other accused and
various other persons. However, as from 11 April 1986 onwards the
applicant no longer replied to questions put to him by the
investigating authorities. The latter nevertheless interrogated
the applicant on altogether 36 occasions ...
...
40. The [Federal] Court noted [on 25 August 1986] that the two
investigating judges charged with the investigations had so far
worked very intensively, but that no assessment of the materials
had yet commenced with a view to a subsequent indictment. Nor was
it clear whether expert opinions should be ordered in respect of
the company accounts and the psychiatric examination of the
applicant. Finally, the court considered that the length of the
applicant's detention on remand did not yet come too close to the
length of the applicant's prospective prison sentence, even if in
this respect the indictments chamber had probably gone too far
when it assumed that an eventual sentence might be in excess of
five years.
41. In July and October 1986 the investigating authorities
ordered the preparation of two expert opinions concerning the
company accounts, and a psychiatric examination of the applicant,
respectively. The accountancy opinion was submitted on 10 April
1987, the psychiatric opinion on 22 December 1986. The latter
confirmed the applicant's full criminal responsibility
(Zurechnungsfähigkeit).
...
52. The Federal Court considered in particular that the delay
was justified by the additional work resulting from the
investigations. Moreover, an excess of the maximum permissible
duration of detention on remand would not be excluded as long as
the investigating authorities had handled the investigations
speedily. While its decision of 24 March 1987 had envisaged a
maximum length of detention of two and a half years, the
investigating authorities had meanwhile taken over proceedings
instituted against the applicant in the Federal Republic of
Germany. Nevertheless, the length of detention on remand should
not come too close to the anticipated maximum duration of the
prison sentence ...
...
65. The applicant's further public law appeal was partly
upheld by the Federal Court on 19 August 1988. With reference to
the Convention organs' case-law, the court found in particular
that the applicant had not been granted the possibility in these
proceedings to comment on statements of the public prosecutor
(Generalprokurator) and the investigating judges.
...
67. The court found that a mere theoretical danger of
collusion did not suffice to justify further custody. In the
applicant's case however there were concrete indications that such
a danger existed. The court referred, inter alia, to the fear
expressed by the Berne authorities that, if released from
detention, the applicant would attempt to collude with his wife
and various persons to fabricate exonerating evidence. The court
also noted that on 2 September 1988 the applicant had been
committed for trial ... and that therefore it could not be said
that the authorities had disregarded the court's instructions of
25 April 1988."*
_______________
* My emphasis.
_______________
It decided to commit for trial on 2 September 1988 and the
applicant was convicted on 30 March 1989 for offences some of which
dated back to 1977, civil and commercial proceedings having started in
1983 and the arrest dating back to 27 March 1985.
The national decisions betray a certain embarrassment at the
obstacles encountered by the defence in gaining full access to the
case-file and the tendency to take account of the sentence which was
likely to be passed in order to "justify" the extended detention. The
Court could have drawn the consequences of such an assessment; it had
always previously refused to accept the concept of detention
anticipating the subsequent sentence (Letellier judgment cited above
and Kemmache judgment of 27 November 1991).
The argument adopted by the majority in the W. judgment does not
seem to me to be adequate to a situation of four years' detention:
"Having regard to the intensive continuous review thus carried out
by the highest national court, the Court agrees in substance with
the Government's arguments summarised in paragraph 41 above. It
notes that the right of an accused in detention to have his case
examined with particular expedition must not hinder the efforts of
the courts to carry out their tasks with proper care (see among
other authorities, mutatis mutandis, the Wemhoff and Tomasi
judgments...)."
Such an interpretation of Article 5 (art. 5) might lead to the
management of case-files being given priority over the right to
liberty. It might be acceptable for swiftness to give way to judges'
working requirements in the case of an accused who is at liberty or
whose detention has just started, but not for detention for such a long
period. The European Court had never accepted a duration of four years
in earlier cases. Nor can the fact that the applicant allegedly
committed other offences during his detention justify the extension of
the detention: either this accusation was maintained and the judge was
obliged to issue a separate arrest warrant on separate charges; or else
the court was not able to use this fact as an argument for refusing
release.
The fact that economic or financial criminal proceedings are very
complex and require manifold investigations cannot justify extended
detention. It is known that accounting reports in this field always
take a very long time to produce, and this may prolong the
investigation; but in bankruptcy cases specialist judges know how to
make best use of the liquidators' reports so as to avoid prolonging
their proceedings, which was not the case here, when W.'s bankruptcies
dated back to 1982. It should be noted in addition that the accounting
report was ordered by the court in July 1986, not in April 1985,
although it was a measure which technically was necessary as from the
arrest.
If one takes as a typical example the official statistics of the
French Ministry of Justice, which could be transposed with similar
results for other European States of similar population, the list of
serious and less serious crimes by category for 1989 (similar figures
in 1990-1992) shows: for bankruptcies, an average length of two months
(seven cases of three months, one only in excess of eighteen months);
for fraud, extortion and blackmail, an average length of four to eight
months. Yet in France Parliament has often deplored the excessive
length of pre-trial detention and has attempted to remedy this by
reforming the Code of Criminal Procedure.
A reading of legal writing on criminal law and criminal policy
shows that no academic specialist or practitioner in Europe justifies
pre-trial detention lasting four years for economic offences, even
multiple ones. In their writings the most eminent authors regret the
excessive length of pre-trial detention. Thus Mr Vassalli, a former
Italian Minister of Justice, a member of the Constitutional Court and
the originator of criminal reform, in Droits de l'homme et durée de la
détention, Giusto Processo 1989; similarly Mr Chiavario, Evolution du
droit et procédure pénale, Vol. II, Politique criminelle, Giuffrè,
1991; similarly Belgian legal writing; similarly French legal writing:
Delmas-Marty, Bouloc, Levasseur (see Revue de science criminelle et de
droit comparé, and Mélanges Levasseur Ed. Litec).
The study of pre-trial detention in English law by
Professor L.H. Leigh, professor at the London School of Economics,
makes observations to similar effect. In 1986 the Government had given
an assurance to the House of Commons that the average period spent
waiting for a hearing (for all summary and indictable offences taken
together) was 57 days. In 1985 it was an average of 10.5 weeks, in
1987 12.9 weeks. For more serious offences the periods are still
reasonable (see Home Office, Criminal Justice: a working paper, 1986).
The case-law on detention also has effects on the criminal policy
of States confronted with serious crises and sometimes mutinies caused
by the saturation of prisons and in part by excessive use of pre-trial
detention. Judges' colleges are worried about such situations. The
European Court therefore has a responsibility with respect to criminal
policy by means of its case-law.
To justify four years of pre-trial detention is to step backwards
in the history of criminal law, to regress to the "prehistoric" era of
the Lombroso school of thought.
If the development of criminal law in Europe since the failure of
the positivist school is considered as a whole, it will be found that:
(1) a number of States have enacted legislation laying down a maximum
length for pre-trial detention (six months or one year, for example in
Czechoslovakia);
(2) the case-law of the other States generally limits the length of
pre-trial detention to about six months to two years;
(3) the teaching given at judges' training colleges on the European
Convention on Human Rights and its Article 5 (art. 5) tends to persuade
them to reduce pre-trial detention, in reliance on the case-law of the
European Court, as some investigating judges have a tendency to prolong
detention in order to put pressure on accused persons and induce them
to make admissions or denunciations, which tends to abolish the right
of silence;
(4) comparative law shows that no country (other than Switzerland)
practises detention for four years in the field of bankruptcy and
fraud, even for criminal cases which are more serious than economic
offences.
The history of the European Convention and the development of the
case-law of its institutions are marked by serious concern to preserve
individual freedom and limit pre-trial detention, at least for ordinary
crimes.
The teaching given in the judges' training colleges and bar schools
is inspired by the same principles. In the member States of the
Council of Europe which have investigative proceedings, practitioners
have noted that certain judges have a propensity to anticipate the
sentence sometimes by pre-trial detention, or to press the accused to
make admissions by postponing appearances for months while dismissing
requests for release. In the present case W.'s refusal to co-operate
may be explicable by the difficulties he experienced in having the
documents in the case-file notified to him in full; the Federal Court
noted this. In any event this refusal to "co-operate" was not capable
of justifying prolongation of his detention for such a long period.
An accused is entitled to take the risk that his negative attitude
during the investigation may "handicap" him at the trial.
The perverse effects of prolonging pre-trial detention are well
known to criminologists and criminal practitioners.
The use made of this by certain investigating judges may transform
an investigation into a coercion to confess or a punishment for
refusing to accuse oneself. It is known that for first offenders the
exemplary and deterrent effect of detention operates from the first
days or weeks; prolongation is therefore unnecessary and harmful.
There are too many cases known of suicide or early death caused by
illness during detention for one not to approve the tendency in
European writing on criminal law to criticise the abuse of pre-trial
detention.
The Court followed and - wrongly in my opinion - accepted the
reasoning of the Swiss Federal Court without, however, adopting the
Federal Court's concept of assessment of the proportionality between
the pre-trial detention and the future sentence likely to be passed,
when the courts carry out their assessment. The Court has thus not
overruled its earlier thinking and case-law which refused to accept
that pre-trial detention could anticipate the sentence to be pronounced
by the trial court.
The particular circumstances of the W. case admittedly relativise
the scope of the European Court's decision. The Court will have other
cases before it which will permit it to give better expression to its
"philosophy" of criminal policy with respect to pre-trial detention,
as where liberty is concerned an overall concept of protection must be
preserved.
For all these reasons I have concluded that there was a violation
of Article 5 (art. 5).
DISSENTING OPINION OF JUDGES WALSH AND LOIZOU
1. The applicant was arrested on 27 March 1985 on charges of fraud.
His trial opened on 17 February 1989 and concluded on
30 March 1989. He had spent over four years in custody awaiting trial.
During that period he had made eight unsuccessful applications to the
Swiss courts for provisional liberty pending trial. He now claims that
he was the victim of a violation of Article 5 para. 3 (art. 5-3) of the
Convention.
2. The relevant Code of Criminal Procedure of the Canton of Berne
provides in Article 111 that: "During the preliminary investigation the
accused shall as a rule remain at liberty". That article is more fully
set out in the judgment of the Court at paragraph 25. The
investigating judge is however given power to keep the accused in
detention if there are reasons "for supposing that there is a risk of
absconding or that the accused would abuse his liberty in order to
frustrate or endanger the discovery of the true facts of the matter,
or that the accused, if he has intentionally committed a further
criminal offence during the proceedings, will commit further criminal
offences". Also a risk of absconding is to be presumed if the accused
has no fixed address in Switzerland.
3. Article 5 para. 3 (art. 5-3) of the Convention enshrines the right
to liberty pending trial and, sensibly, permits that liberty to be
conditioned by guarantees "to appear for trial". It would be difficult
to over-emphasise the stark consequences of refusing provisional
liberty pending trial to the person who is accused of a crime (of which
he is presumed to be innocent). He will most probably lose his
employment, possibly lose his dwelling place, his family's life can be
totally disrupted and driven to penury, and even his marriage may be
driven to point of breakdown. A person presumed to be innocent cannot
in justice be exposed to such terrible consequences unless the reasons
for so doing completely outweigh all other considerations.
Insensitivity to this serious problem in member States may be
inferred from the fact that, according to the relevant statistics, the
numbers of untried persons remanded to prison detention varies from 7%
to 52% of the respective total national prison populations.
4. Judges deciding applications for provisional release from custody
are expected to decide on evidence the issues raised. There should be
no place for judicial speculation or judicial intuition as a substitute
for objective evidence. The issues involved should be judged by the
same objective standard which is the basis as all other justiciable
controversies. The present case, as presented to the Court, does not
reveal any record of witnesses having been heard on probability of the
applicant absconding or interfering with the gathering of evidence or
with the evidence already gathered. The suggestion in one of the Swiss
courts that because his bad bookkeeping (referred to in paragraph 16
of the majority judgment) made investigation more difficult should
militate against his provisional liberation is not a reason which
should be put against him in the balance. Likewise his alleged failure
to assist in the gathering of evidence against himself is also an
untenable reason for supporting the refusal to grant him provisional
liberty. It is always open to a court to impose conditions upon
provisional liberty even to the extent of reporting daily to the police
if there exists some suspicion of absconding. If there lingers some
suspicion of interfering with the evidence a reasonable condition may
be imposed restricting consorting with certain named persons or
restricting access to certain offices or documents. None of that
appears to have been considered seriously, if at all.
5. The most serious matter is the taking into account of the
possibility of future offences. The reasoning underlying the
submission is a denial of the whole basis of the Convention system of
protection of liberty and the criminal process.
This submission transcends respect for the requirement of Article
6 (art. 6) that a man shall be considered innocent until he is found
guilty and seeks to punish him in respect of offences neither completed
not attempted. We say "punishment" because deprivation of liberty,
frequently subject to more restrictive conditions than those applied
to detention of convicted persons, must be considered as a punishment
unless it can be shown that it is required to ensure that an accused
person will stand his trial when called upon.
The presumption of innocence until conviction which is demanded by
Article 6 (art. 6) is no empty formula. It is a very real thing and
not simply a procedural rule taking effect only at the trial.
Furthermore imprisonment before trial frequently has an adverse effect
on a person's prospect of acquittal because of the difficulty, if not
the impossibility in many cases, of the accused and his legal advisers
in adequately investigating the case and preparing the defence.
6. In our opinion the pre-trial detention of the applicant has not
been shown to have been necessary or justifiable within the provisions
of the Convention. The onus of proof is upon the detainer to justify
it, and not upon the detainee to justify his being at liberty.
In our opinion there has been a breach of Article 5 para. 3
(art. 5-3).
DISSENTING OPINION OF JUDGE DE MEYER
(Translation)
The present case was not straightforward. It necessitated a
thorough-going investigation, which in the nature of things was bound
to take a certain time.
But as already stated by the Federal Court in November 1985, that
"could hardly justify detention on remand for years"*.
The applicant was in fact deprived of his liberty for slightly over
four years before being tried. This interference with "the rule of
respect for individual liberty"** and the presumption of innocence was
so serious that I cannot regard it as acceptable***.
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* Paragraph 35 of the Commission's report.
** Neumeister v. Austria judgment of 27 June 1968, Series A no. 8,
p. 37, para. 5.
*** If an accused makes use of his right not to "cooperate with the
authorities", that may indeed delay the "progress of the investigation"
(paragraph 42 in fine of the judgment), but it is not acceptable that
he should be made to "bear the consequences" by having his detention
prolonged.
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