CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 octobre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 16247/90                       by C.C.                       against Switzerland           The European Commission of Human Rights (Second Chamber) sitting in private on 14 October 1992, the following members being present:                MM.   G. JÖRUNDSSON, Acting President of the Second Chamber                   S. TRECHSEL                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS                Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 16 October 1989 by C.C. against Switzerland and registered on 7 March 1990 under file No. 16247/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The applicant is a Swiss citizen, born in 1931 and residing in Basel.   Before the Commission he is represented by Ms. Suzanne Lehmann, a lawyer practising in Basel.         The facts of the case, as submitted by the applicant, may be summarised as follows.   Between 1 July 1986 and 1 August 1986 and later between 30 December 1986 and 2 September 1988 the applicant had been detained on remand.   On 13 December 1988 he was convicted by the Basel- Stadt Criminal Court (Strafgericht) for aggravated offences under the Narcotics Act (qualifizierte Widerhandlung gegen das Betäubungsmittelgesetz), attempted fraud (versuchter Betrug), false accusation before a public authority (falsche Anschuldigung) and deception of the judiciary (Irreführung der Rechtspflege), and sentenced to three and a half years' imprisonment.   The applicant appealed against this judgment to the Basel-Stadt Court of Appeal (Appellationsgericht).         On 2 March 1989 the applicant was again remanded in custody on suspicion of having contravened the Narcotics Act.   A request for release from detention on remand was refused by the Criminal Court on 2 August 1989 on grounds of danger of repetition of the offence (Fortsetzungsgefahr).         On 21 August 1989 the applicant made another request for release from detention on remand.   This request was refused by the Criminal Court on 23 August 1989.   On 24 August 1989 the applicant appealed against this decision to the Court of Appeal.         On 5 September 1989 the Court of Appeal dismissed the applicant's appeal.   The Court held that the danger of repetition of the offence existed.   It found that shortly after the applicant had been convicted for offences against the Narcotics Act and while appeal proceedings were still pending he was arrested again on suspicion of having committed the same offence.   The applicant had even submitted a list of his drug transactions while in liberty which the court considered as a confession.   Therefore, there was a high probability that the applicant would commit further offences if released.   The court further relied on the statement of a fellow-prisoner according to which the applicant had tried to convince that prisoner to give false testimony in favour of the applicant.   The court therefore concluded that there was also a danger of collusion (Kollusionsgefahr).         Against the decision of the Court of Appeal the applicant lodged a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht) on 11 September 1989 invoking Article 6 para. 2 and Article 5 para. 3 of the Convention.         On 9 October 1989 the Federal Court dismissed the appeal, confirming the decision of the Court of Appeal.   It found in particular that the length of detention on remand had not been excessive.   In assessing the reasonable maximum period of detention on remand the Court first considered that the maximum length should not come close to the expected sentence.   The Court then weighed, on the one hand, the time spent in detention on remand for the first conviction in respect of which proceedings were pending and for the second charge and, on the other hand, the sentence already imposed as well as the sentence likely to be passed for the second charge.   The Court employed this method as it considered that in the applicant's case a joint sentence (Gesamtstrafe) for the first and second proceedings would have to be passed.   Thus the Court concluded that a period of detention on remand of altogether 28 months would not come to close to an expected sentence of 58 months.           On 24 November 1989 the Court of Appeal dismissed the applicant's appeal against the judgment of the Criminal Court of 13 December 1988. During the appeal proceedings the applicant changed his lawyer several times as the lawyers, once appointed, withdrew from the case.   In the course of these events the applicant instituted proceedings concerning the appointment of an officially appointed lawyer.         On 9 January 1990 the Criminal Court sentenced the applicant in the second proceedings to six months' imprisonment.   COMPLAINTS   1.     The applicant complains under Article 6 para. 2 of the Convention of a violation of the principle of presumption of innocence on the grounds that, in considering the lawfulness of detention on remand and the reasonableness of its length, the domestic courts had referred to a judgment not yet in force and the probable length of a sentence not yet imposed.   2.     The applicant further complains under Article 5 paras 1 (c) and 3 of the Convention of the unlawfulness of his detention on remand and its length.   3.     The applicant also complains under Article 6 para. 1 of the Convention of the length of criminal proceedings instituted against him.   THE LAW   1.     The applicant complains under Article 6 para. 2 (art. 6-2) of the Convention that the Court of Appeal and the Federal Court had based their finding of a danger of repetition of the offence on an earlier conviction not yet final and the probable length of a sentence not yet imposed.   The applicant considers that the Court's assumptions constitute a violation of the presumption of innocence.         It is true that according to Article 6 para. 2 (art. 6-2) of the Convention "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".   However, according to the Convention organs' case-law it is compatible with the presumption of innocence as laid down in Article 6 para. 2 (art. 6-2) of the Convention to refer to a continued state of suspicion where this does not amount to a determination of the accused person's guilt (see Eur. Court H.R., Adolf judgment of 26 March 1982, Series A No. 49 p. 18, para. 39; Minelli judgment of 25 March 1983, Series A No. 62, p. 17 et seq., para. 34 et seq. and Lutz, Englert and Nölkenbockhoff judgments of 25 August 1987, Series A No. 123, p. 24, para. 58; p. 55, para. 39; p. 80, para. 39).   In the present case the Federal Court only assessed the issue whether there was a continuing danger of repetition of an offence.   In any event the Federal Court clearly stated that appeal proceedings were still pending, thus indicating that the proceedings were not yet terminated.         Furthermore the reference to the sentence likely to be incurred in the second criminal proceedings instituted against the applicant does not involve an anticipated determination of guilt.   The Federal Court referred to the bill of indictment drawn up by the public prosecutor and to the statement drawn up by the applicant in which he had listed his drug transactions and concluded that there was a strong suspicion against the applicant that once released he would commit further offences.   The Commission considers such a finding as compatible with the presumption of innocence as laid down in Article 6 para. 2 (art. 6-2) of the Convention.         This part of the application must therefore be declared manifestly ill-founded in accordance with Article 27 para. 2 (art. 27-2) of the Convention.   2.     The applicant complains under Article 5 para. 1 (c) and para. 3 (art. (5-1-c, 5-3) of the Convention of the unlawfulness of his detention on remand and its length.         The applicant was remanded in detention on the suspicion of having committed offences against the Narcotics Act.   This fact is not contested by the applicant.   The only disagreement between the applicant and the prosecution concerned the amount of drugs put into circulation by the applicant.   In its judgment the Federal Court gave, as the lower courts did, as the reason for detention the danger that the applicant, once released, might repeat the offence.   The Court substantiated the existence of this danger by reference to the applicant's conviction in the first instance for the same offence shortly before his new arrest and while appeal proceedings were still pending.   Under the circumstances the Court could reasonably conclude that the danger of repetition of the offence as a reason for detention within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) existed.         Concerning the length of provisional detention, the Commission notes that in the first criminal proceedings instituted against the applicant he was arrested on 1 July 1986 and detained until 1 August 1986 and subsequently remanded in detention again from 30 December 1986 to 2 September 1988.   On 2 March 1989 he was arrested again concerning new criminal proceedings against him and detained until his conviction in first instance on 9 January 1990.         However, the applicant does not complain of the length of detention in remand with regard to the first criminal proceedings and it does not appear that he had employed any available remedies in this respect as required by Article 26 (Art. 26) of the Convention.   Rather, the applicant's complaint concerns the length of detention on remand in the course of the second criminal proceedings.   The Commission notes that the detention on remand at issue commenced on 2 March 1989 and lasted until 9 January 1990.   The period of time to be examined under Article 5 para. 3 (Art. 5-3) is therefore ten months.         The Commission recalls that it is in the first place for the national authorities to ensure that, in a given case, pre-trial detention of an accused person does not exceed a reasonable time.   To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decision on the question of release.   It is essentially on the basis of the reasons given in these decisions and of the facts mentioned by the detained person in his appeals, that the Convention organs are called upon to review the reasonableness of the length of detention (cf. Eur. Court H.R., Letellier judgment of 26 June 1991, Series A No. 207, p. 18, para. 35).         The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Convention organs must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty, and whether the domestic authorities displayed special diligence in the conduct of the proceedings (cf. Eur. Court H.R., Letellier judgment, loc. cit.).           As regards the conduct of the proceedings by the domestic authorities, the Commission notes that the applicant had been taken in detention on remand on 2 March 1989, thereafter a bill of indictment was drawn up by the public prosecutor on 25 July 1989, i.e. after four months, three weeks.   On 24 November 1989 the Court of Appeal decided on the applicant's appeal against his conviction in the first criminal proceedings, which the Criminal Court had to take into account.   During the appeal proceedings the applicant changed his lawyers several times, as lawyers once appointed withdrew from the case.   In the course of these events the applicant instituted proceedings concerning the appointment of an officially appointed lawyer.         In these circumstances, the Commission considers that the period of the applicant's detention on remand did not exceed a reasonable time within the meaning of Article 5 para. 3 of the Convention.         This part of the application must therefore be declared manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant also complains that the criminal proceedings instituted against him had not been conducted within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission notes that the period of the applicant's detention in remand coincided with the length of the criminal proceedings conducted against him.   The Commission recalls its case-law according to which in such a case the Commission must accept that, having not found a breach of the obligation under Article 5 para. 3 (Art. 5-3) of the Convention, there has been no breach of the obligation contained in Article 6 para. 1 (Art. 6-1) of the Convention either (Schertenleib v. Switzerland, Comm. Report 11.12.80, para. 191, D.R. 23 p. 137, at p. 168).         Consequently the remainder of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Second Chamber   Acting President of the Second Chamber               (K. ROGGE)                         (G. JÖRUNDSSON)