CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 février 1995

.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. 19976/92                     by Harold FRANKEL                     against Switzerland        The European Commission of Human Rights (Second Chamber) sitting in private on 24 February 1995, the following members being present:             Mr.   H. DANELIUS, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                S. TRECHSEL                J.-C. SOYER                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Mr.   K. ROGGE, Secretary to the 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 30 April 1992 by Harold Frankel against Switzerland and registered on 12 May 1992 under file No. 19976/92;        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 facts of the case as submitted by the applicant may be summarised as follows:        The applicant is a British citizen born in 1932.   He is currently serving a prison sentence in Bellechasse prison in Switzerland.   Before the Commission he is represented by Mr. Alain Marti, a lawyer practising in Geneva.        On 12 June 1990 the Public Prosecutor (Procureur général) of the Canton of Geneva instituted investigations concerning the disappearance in autumn 1989 of Ms. G., the applicant's companion of thirty years. It was established in the course of the investigations that the applicant had closed various bank accounts of Ms. G., forged her signature, sold her movable property, married another woman, left Switzerland and settled in France.        On 8 November 1990 the investigating judge (juge d'instruction) of the Canton of Geneva issued an international warrant of arrest. On 10 November 1990 the applicant was arrested in Paris.   He apparently consented to his extradition to Switzerland which took place on 26 February 1991.   On 27 February 1991 the police questioned the applicant.   He stated that in August 1989 he had had a violent argument with Ms. G. and hit her several times on the head with a statue, whereupon she had died.   Subsequently the applicant had drowned her body in Lake Geneva.        On the same day the applicant was remanded in custody and charged with manslaughter, fraud and theft.        On 16 April 1991 the investigating judge decided that the applicant should undergo a psychiatric examination.        On 31 May 1991 the applicant complained to the investigating judge that he had ordered the taking of evidence which was of no significance to the proceedings; in particular, it could not lead to establishing the financial situation of the applicant at the material time and thus could not shed light on whether the applicant had had any financial motives for killing Ms. G.        On 7 June 1991 the applicant requested the investigating judge to hear certain witnesses, some of them by a commission rogatory in France, in order to establish the exact date of the victim's death.        On 24 June 1991 the applicant informed the investigating judge that in order to establish his financial situation at the material time it would be necessary to hear former employees of his former client, a bankrupt company N.   He requested the judge to order a search at its former headquarters.   On 15 July 1991 the applicant reiterated this request.        On 16 July 1991 the applicant complained to the cantonal Chamber of Indictment (Chambre d'Accusation) that the investigating judge had failed to take evidence concerning his financial situation at the material time and that there had been no progress in the investigations for the three preceding months.   On 27 August 1991 the Chamber declared the complaint inadmissible.   It observed that the investigating judge had not replied to three requests concerning the taking of evidence within the period of at most one month and a half.   The Chamber found that this did not amount to a prolonged inactivity on the part of the investigating judge, and was moreover in part justified by the fact that the judge had been on holidays.        In letters of 2 September and 23 September 1991 to the investigating judge the applicant insisted that the judge should hear witnesses and order a search in accordance with the applicant's requests of 7 and 24 June 1991.        On 27 November 1991 the Chamber of Indictment of the Geneva Canton prolonged the applicant's detention for three months.        On 3 December 1991 the psychiatrists, in a medical expert opinion, found that at the material time the applicant had suffered from a long lasting emotional stress and depression in connection with the tensions and arguments between him and Ms. G.        On 18 December 1991 the applicant requested to be released.        On 23 December 1991 the Chamber of Indictment of the Geneva Canton dismissed this request.   The Chamber had regard to the seriousness of the charge and considered that there was a risk of the applicant absconding.   The Chamber considered that the continued detention was necessary for a proper conduct of the investigations.        The applicant filed a public law appeal (recours en droit public) with the Federal Court (Tribunal Fédéral), submitting that there was no reasonable suspicion that he had intentionally killed Ms. G. and that the Chamber had not indicated how his continued detention was necessary to ensure the proper progress of the investigations.   He further submitted that the conclusions as to the risk of his absconding were erroneous.   The applicant also requested legal aid.        On 12 February 1992 the investigating judge heard the applicant.        On 14 February 1992 the Federal Court upheld the decision of 23 December 1991.   The Court found a very strong suspicion that the applicant had killed Ms. G., based on, inter alia, his own statements made in the course of the investigations.   Therefore it remained for the Court to decide whether the offence constituted intentional manslaughter or accidental killing.   The Court considered that the Accusation Chamber had failed sufficiently to indicate what particular purposes of the investigations necessitated the applicant's continued detention, and how his release would create a risk of collusion. However, the Court observed that in view of the lack of family, property or professional ties of the applicant in Switzerland there was a genuine risk of his absconding.   The Court found that the period of detention was not disproportionate to the possible penalty.   The Court refused to grant legal aid as the appeal obviously offered no prospects of success.        On 19 and 25 March 1992 the applicant complained to the Chamber of Indictment of the Canton of Geneva that the investigating judge had refused to comply with his requests to take certain evidence and   about the length of the proceedings.        On 26 March 1992, in a letter to the investigating judge, the applicant complained about the manner in which the investigations had been conducted, and in particular that he had not been heard since 12 February 1992.   He submitted that the proceedings lasted too long.        On 6 May 1992 the Chamber of Indictment dismissed the applicant's further request for release.        On 18 May 1992 the Accusation Chamber partly dismissed the applicant's complaint about the conduct of the investigation and partly upheld it, ordering the investigating judge to hear one witness required by the applicant and to translate the applicant's memorials submitted in English in their entirety.   The Chamber observed that a certain request of the applicant as to the taking of evidence had meanwhile been complied with.        The applicant appealed against this decision, complaining that the investigations had not been conducted efficiently and, as a result, that they exceeded a reasonable time.        On 25 May 1992 the Chamber of Indictment of the Canton of Geneva prolonged the applicant's detention for another three months.        On 1 July 1992 the Federal Court declared inadmissible the applicant's appeal against the decision of 18 May 1992 finding that the applicant had not suffered irreparable damage in result thereof, as he still could ask for certain evidence to be taken in further proceedings.   The Court also dismissed the appeal against the decision of 25 May 1992.   It considered that the Chamber of Indictment was justified in finding that there was a risk of the applicant absconding and further found sufficient grounds to believe that the applicant had committed the crime at issue.   The Court considered that the length of detention was not disproportionate to the possible penalty.   It observed that it was decisive for the outcome of the case to establish whether the killing was accidental or intentional.   This was difficult in the given circumstances, and necessitated establishing the applicant's motives, including a possible financial one.   The Court noted that the investigating authorities had taken ample evidence relating thereto, having questioned the applicant sixteen times. Moreover, five times certain evidence had been taken by commissions rogatory and on numerous occasions the investigating authorities had heard witnesses and carried out searches.   The investigations had thus been conducted in a regular manner.        On 16 October 1992 the Jury Court (Cour d'assises) of the Canton of Geneva convicted the applicant of manslaughter, fraud and theft and sentenced him to seven years' imprisonment.   COMPLAINTS        The applicant complains under Article 5 para. 3 of the Convention that his detention on remand was unjustified as the grounds for detention relied on by the Swiss authorities were insufficient.   He complains that the authorities wrongly regarded his British nationality as a sufficient ground for believing that there was a risk of his absconding;   this consideration was erroneous as he had consented to his extradition from France to Switzerland.   He further complains about the length of his detention on remand, which in his view was disproportionate to the possible penalty.        The applicant complains under Article 6 para. 1 of the Convention that the investigating judge conducted the investigations in an inefficient manner with long periods of inactivity.   He complains that the proceedings were unreasonably long.        The applicant complains under Article 6 para. 3 (c) of the Convention about the refusal of legal aid in the proceedings before the Federal Court upon the public law appeal concerning his complaint about the refusal of release from detention on remand.   He submits that this refusal was arbitrary.   THE LAW   1.    The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention that his continued detention was unjustified.   He complains that the authorities erroneously regarded his British nationality as a sufficient ground for believing that there was a risk of his absconding.   He complains about the length of his detention on remand, and in particular alleges that it was disproportionate to the possible penalty.        Article 5 para. 3 (Art. 5-3) of the Convention, insofar as relevant, provides as follows:        "Everyone arrested or detained in accordance with the provisions      of paragraph 1 (c) of this Article (...) shall be entitled to      trial within a reasonable time or to release pending trial."        The applicant's detention on remand commenced on 26 February 1991 (extradition) and ended on 16 October 1992 (conviction).   The period to be examined under Article 5 para. 3 (Art. 5-3) of the Convention thus lasted altogether one year, seven months and twenty days.        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 decisions on the question of release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant 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 a 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.).        In the present case the Accusation Chamber of the Canton of Geneva and the Federal Court in their decisions relating to the applicant's requests for release found that there was a very strong suspicion, supported inter alia by his own statements, that the applicant had killed his companion.   There were also reasonable grounds for believing that the applicant had misappropriated her property by closing her bank accounts in her name and selling her movables.   Their findings as to the risk of the applicant absconding were based on the fact that although he had lived in Switzerland for a long time, he had not had any strong professional, property or family links there.   This consideration was supported by the fact that the applicant shortly after the death of his companion had in fact left Switzerland and settled in France.   The Courts also had regard to the severity of the sentence which the applicant risked if convicted of intentional killing.   In the Commission's opinion, this reasoning does not appear arbitrary, and the applicant's continued detention was thus based on sufficient and relevant grounds.        As regards the conduct of the proceedings by the Swiss authorities, the Commission recalls that the right of the accused in detention to have his case examined with particular expedition must not hinder the efforts of the prosecuting authorities to carry out their tasks with proper care (cf. Eur. Court. H.R., Tomasi judgment of 27 August 1992, Series A no. 241-A, p. 39, para. 102).        In the present case the applicant was arrested on 10 November 1990 and extradited to Switzerland on 26 February 1991. It transpires from the Federal Court's judgment of 1 July 1992 that subsequently the applicant was questioned sixteen times;   five times certain evidence was taken by commission rogatory, and witnesses were heard, and searches carried out on numerous occasions.   In view thereof, the Commission does not consider that the Swiss authorities failed to act with the necessary diligence in the conduct of the proceedings.   In these circumstances, the Commission does not find that the period of the applicant's detention on remand exceeded a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.        It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    Insofar as the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the length of proceedings exceeded a reasonable time, and under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention about the refusal of legal aid in the proceedings before the Federal Court leading to its decision of 14 February 1992, the Commission is not required to decide whether or not the facts submitted by the applicant in support of those complaints disclose any appearance of a violation of the invoked provisions as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter after all domestic remedies have been exhausted".        In the present case the applicant was convicted on 16 October 1992 by the Jury Court of the Canton of Geneva.   Against this judgment he could file a public law appeal in last resort with the Federal Court, in which he could have submitted the complaints he has made before the Commission.   The applicant has not shown that he has done so.   It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission unanimously        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber     President of the Second Chamber          (K. ROGGE)                         (H. DANELIUS)