European Court of Human Rights

The Government’s memorial was received at the registry on 22 February. On 5 May, the Secretary to the Commission informed the Registrar that the Delegate would submit his own observations at the hearings.

By Order of 6 October 1982, the President requested the Government and the Commission to produce certain documents; these were received at the registry on various dates.

There appeared before the Court:

- for the Government:

       Mr. O. JACOT-GUILLARMOD, of the Council of Europe

                            Division of the Federal Justice Department,               Agent,

       Mr. R. HAUSER, Professor

                            at the University of Zürich,

       Mr. B. MÜNGER, of the Federal Department of Justice,              Counsel;

- for the Commission:

       Mr. J. FROWEIN,                                                                        delegate,

       Mr. L. MINELLI, applicant,

                            assisting the Delegate (Rule 29 § 1, second sentence, of      

                            the Rules of Court).

The Court heard their addresses and their replies to its questions. They filed several documents during the hearings.

AS TO THE FACTS

A. The particular facts of the case

The facts recounted by the applicant had already been the subject of an article by another journalist, Mr. Fust, which appeared on 19 January 1972 in the daily newspaper "Blick". Mr. Fust complained that in order to promote sales of a telephone directory, the company in question had been using subscription forms (Einzahlungsscheine) that resembled telephone bills. In his view, such conduct could create the impression that this was an ordinary service provided by the Swiss postal authorities, giving rise to a debt that had to be paid in the same way as a periodical invoice.

The complaint against Mr. Minelli was filed on 29 February 1972 in the Uster (Zürich) District Court (Bezirksgericht). On 6 June, the investigating judge questioned the parties in the presence of their lawyers. Previously, the applicant’s lawyer, Mr. Kuhn, had supplied certain documents and called for evidence to be submitted; on 28 June, he requested that several witnesses be heard. However, on 3 July 1974 the District Court suspended the proceedings, at Mr. Vass’ request, until completion of the proceedings instituted against Mr. Fust, the "Blick" journalist.

The latter proceedings, which had begun on 28 February 1972 and had encountered numerous procedural vicissitudes, resulted on 2 September 1975 in a judgment of the lst Criminal Chamber of the Canton of Zürich "Higher Court" (Obergericht): Mr. Fust was fined 200 SF and ordered to pay about 1,400 SF in court costs, together with compensation of 1,400 SF to each of the private prosecutors in respect of their expenses.

On 12 September 1975, the court granted the request and asked Mr. Minelli to indicate whether he demanded that his case be heard before an assize court. Mr. Kuhn replied in the affirmative and the District Court therefore relinquished jurisdiction on 1 October 1975.

On 6 November 1975, the Prosecution Chamber (Anklagekammer) of the Zürich Higher Court declared the complaint admissible and directed that the case be remitted to the Canton of Zürich Assize Court (Geschworenengericht) (Article 305 of the Zürich Code of Criminal Procedure). On 24 November 1975, the applicant entered a public law appeal against this decision; it was dismissed by the Federal Court on 6 January 1976.

On 19 November 1975, the registry of the Assize Court had told Mr. Weber, Mr. Vass’ lawyer, by telephone that the hearings would be held between 19 and 21 January 1976, but they were subsequently postponed to await the Federal Court’s judgment. When that judgment was delivered on 6 January, it was too late, according to the Government, to hold the hearings on the date originally envisaged. However, on 21 January 1976 the Assize Court invited the parties to present their submissions on the apportionment of costs, having regard to the fact that the "absolute" limitation period (see paragraph 17 below) was close to expiring. Both parties did so in writing. Mr. Minelli also asked the Assize Court to obtain certain evidence.

The Chamber of the Canton of Zürich Assize Court found that in the instant case it was the private prosecutors who were the losing party: as a result of limitation, they had not obtained the applicant’s conviction. It then referred to Zürich case-law according to which, in cases ending in an acquittal (Freispruch) on account of criminal irresponsibility or in a decision to terminate the proceedings (Einstellung) following the death of the accused, it is of significance to know, when the costs are being apportioned, what the judgment would have been had the accused been criminally responsible or survived. In its opinion, the same applied when the prosecution was terminated on account of limitation; "the obligation to bear the costs and expenses" must in such circumstances "depend on the judgment which would have been given had there not been limitation". The Chamber added that the costs of a private prosecution could never be left to be borne by the State and that according to the established practice in the matter there was no call to conduct a further investigation into the facts.

To discover what the result of the prosecution would have been in the absence of limitation, the Chamber referred to the judgment (which has since become final) which the Higher Court had given on 2 September 1975 in the case of the journalist, Mr. Fust (see paragraph 10 above). After summarising the judgment and citing extensive extracts, the Chamber stated (translation from German into French supplied by the Government):

"It can be accepted, as is done by the private prosecutors, that the present case is, with slight variations, the same as that referred to, namely the proceedings before the Cantonal Court against the journalist F. for defamation. In fact, Minelli, by maintaining that there had been fraud in the instant case and calling for Mr. Vass to be placed in detention on remand, has brought much more serious accusations against the private prosecutors. Unlike F., the accused apparently made no effort to verify his accusations. Minelli was a target of the private prosecutors’ publicity campaign when, in January 1972, he received from the company Télé-Répertoire Editions Vass a printed subscription form. However, according to his own statement, he was not deceived. Looking at the card more carefully, he found on the back a printed note ‘which gave it to be understood in a rather indirect manner that the invoice was intended to pay for an entry in heavy print in a telephone directory’ (ref. 5/28). When, a few days later, F.’s article appeared in "Blick", Minelli himself formulated the accusations in question, with the object, according to his own statement, of inducing the postal authorities to take action. Nevertheless, he did not previously contact either the private prosecutor Mr. Vass or his company because the facts seemed to him so clear that he did not consider it necessary to do so (ref. 5/26 p. 4).

By failing to obtain more precise information from the private prosecutors, the accused committed a breach of his duty of care. He ought in fact to have made himself aware of the steps taken by them with a view to avoiding all risk of confusion. After obtaining this information he could at most have indicated his disapproval of their methods, but he did not have the right to accuse them of fraud publicly and in such a flagrant manner. As he nevertheless did so, he would in all probability have been convicted of defamation if the present proceedings had not been terminated on account of limitation. This conclusion is rendered more compelling by the fact that the proceedings for fraud initiated on the complaint of the accused against Mr. Vass in the Canton of Ticino ended in a discharge (10 May 1972); the costs of the proceedings were ordered to be paid by the State. The discharge was based on the absence of facts which would have made it possible to find that the constituent elements of the offence of fraud existed (ref. 5/20 and 21). The arguments the accused adduces against this decision can no longer be examined in the present proceedings. That would have been possible if the Assize Court had been required to reach a decision on the merits of the charge.

Given that Article 293 of the Code of Criminal Procedure authorises the court to take account of the ‘special circumstances’, this means that it must take into consideration all the relevant circumstances in making its decision on the apportionment of costs. As stated by the Canton of Zürich Court of Cassation in its unpublished decision of 2 April 1973, cited above, these circumstances include the fact that the private prosecutors contributed by their behaviour to the initiation of the proceedings, within the meaning of Article 189 of the Code of Criminal Procedure. The fact that the subscription forms were sent without envelopes until the end of 1971 and, sporadically, in 1972 may have given the accused the impression that the prosecutors had sought to create confusion or were at least not concerned about it. The fact of combining the offer and the invoice in their communication must also be considered as improper, as was moreover already noted by the Higher Court in its judgment. The private prosecutors’ commercial practices, which had already been publicly denounced, were indeed the cause of the article complained of. The accused’s reactions were accordingly provoked by the private prosecutors. Even though the accused acted for a specific purpose, his attack was nevertheless excessive. It clearly went beyond the bounds of what was tolerable.

It must therefore be assumed that if the proceedings had not been terminated on account of limitation, the article against which the complaint was filed would very probably have led to the conviction of the accused; on the other hand, it was the private prosecutors’ behaviour which caused the accused to draw their reprehensible commercial practices to the attention of the public and the competent authorities. It is therefore justified to order the accused to pay two-thirds of the court costs and the prosecutors one-third. The parties’ expenses must be settled in the same proportions, on the basis that the total sum involved amounts to 3,600 francs; ..."

The Canton of Zürich Court of Cassation (Kassationsgericht) dismissed this application on 30 September 1976. It treated the presumption of innocence as being a rule of evidence. It noted that it was undisputed that the publication complained of was defamatory. Accordingly, the applicant could not have avoided conviction, if the proceedings had not been terminated on account of limitation, unless he had had grounds for believing his allegations to be true; however, the Chamber of the Assize Court had found that this was not the case. According to the Court of Cassation, Article 6 § 2 (art. 6-2) could not be interpreted to mean that the good faith of a person charged with defamation must be presumed until the contrary was proved, in other words, that it was for the private prosecutor to prove bad faith on the part of the accused. It could not be supposed that the Convention intended to overturn (umwälzen) in such a way the criminal law of the Contracting States. Moreover, the field of application of Article 6 § 2 (art. 6-2) was not very clear. For the reason stated, it could not be accepted that it extended to the establishment of the truth in a criminal prosecution for defamation. It followed that the Chamber of the Assize Court had not violated this provision by reaching the conclusion, without taking evidence (Beweisverfahren), that Mr. Minelli had not succeeded in proving the truth of his allegations against the private prosecutors.

The Court of Cassation directed that the applicant was to pay 251 SF in court costs and ordered him to pay to the private prosecutors compensation of 600 SF in respect of their expenses.

On 5 January 1977, at the applicant’s request, the President of the Court suspended the proceedings, on the ground that various cases raising similar issues were pending before the European Commission of Human Rights (applications nos. 6281/73 and 6650/74, Neubecker and Liebig, respectively, against the Federal Republic of Germany; application no. 7640/76, Geerk against Switzerland). The proceedings were resumed after these cases had formed the subject of friendly settlements under Article 28, sub-paragraph (b) (art. 28-b), of the Convention.

It recalled first of all that since this was a private prosecution for defamation, without the intervention of the public prosecutor, the costs could not be borne by the State: they had to be apportioned (aufteilen) between the parties in some way or another. Account also had to be taken of the fact that not only the accused’s criminal responsibility but also the private prosecutor’s reputation were at stake in such proceedings. This special situation might have repercussions on the method of apportioning the costs.

According to the Federal Court, if, owing to a subsequent procedural obstacle, criminal proceedings did not terminate in a judgment on the merits but in a decision which left open the question of guilt (discharge or declaration that the complaint could not be heard), reasons of equity might necessitate the taking into account, in the decision on costs, of the probable result of the proceedings in the absence of such obstacle. It was therefore justified to consider, after a provisional examination of the merits of the case ("aufgrund einer provisorischen Prüfung der materiellen Rechtslage"), which party would probably have been successful in the absence of limitation.

In the instant case, there had been no violation of the presumption of innocence as the result of the imposition of a punishment without guilt being established in accordance with the law. Neither had there been any measure implicitly amounting to a judicial finding of a criminal offence, equivalent to a conviction. Admittedly, the Chamber of the Assize Court came to the conclusion, "by anticipating partially the assessment of the evidence, that the applicant should probably have been convicted of defamation". This was, however, not "a formal finding of criminal guilt, but an estimation of the probable result of the proceedings ("Würdigung der Prozesschancen")". As the Chamber had to come to its decision on the basis of the evidence before it and as Cantonal practice prohibited its making any further investigation into the facts for the sole purpose of apportioning the costs, it was still possible that the proceedings might have resulted in an acquittal had they run their ordinary course. An order to pay costs was not in itself to be regarded as equivalent to a criminal conviction. Since the Chamber had rendered a decision only on the apportionment of costs and not on criminal guilt, the applicant (and also the private prosecutor) could not rely on Article 6 § 2 (art. 6-2) of the Convention to insist that the provisional examination undertaken in the present case should follow the procedure required for a decision on the merits.

The Federal Court added that the criterion of the probable result of the proceedings could be utilised only if the data available enabled a sufficiently reliable estimate to be made and if the parties had previously had an opportunity to express their views on the matters relevant to the apportionment of costs. However, the limits to be respected in this context were based not on the presumption of innocence but on the general principle forbidding arbitrary decisions and on the right to be heard. And the applicant had made no complaint in this respect.

Finally, the Federal Court noted that the Chamber of the Assize Court had not only considered whether the proceedings would have ended in Mr. Minelli’s conviction had there not been limitation, but had also had regard to the conduct of the two private prosecutors before the trial. The Federal Court directed that the applicant was to pay 643 SF in court costs and ordered him to pay to the respondents’ compensation of 800 SF in respect of their expenses.

B. Relevant legislation

Under Article 178, prosecution for these offences is subject to a two-year limitation period. However, the running of time will be interrupted and will commence afresh whenever any measure of investigation is taken. Nevertheless, for offences involving an attack on a person’s honour there is in any event "absolute" limitation after four years, that is twice the normal limitation period (Article 72 § 2 of the Criminal Code).

Cases are normally heard by a District Court (Bezirksgericht), but the accused may apply for a transfer to the Assize Court if the alleged defamation has been committed through the press (Article 294 of the Code of Criminal Procedure and section 56 of the Zürich Constitution of the Courts Act). In that event, the Prosecution Chamber of the Canton of Zürich Higher Court - rather than the President of the District Court - rules on the admissibility (Zulassung) of the complaint (Article 305 of the Zürich Code of Criminal Procedure).

If the court decides that the complaint cannot be heard, the private prosecutor may appeal (Article 169 of the same Code), but if the court decides that the complaint can be heard, the accused cannot appeal except on the ground that the court lacks jurisdiction.

Under section 160 § 8 of the Constitution of the Courts Act, judgments in criminal matters must include decisions both on the question of guilt and the consequences thereof - acquittal, sentence, imposition of measures of prevention or assistance - and on damages (Schadenersatz), costs and compensation (Entschädigungen).

Details of the apportionment of costs and expenses, unlike those of the sentence passed, are entered only in the court’s register of criminal cases and not in the judicial criminal records (casier judiciaire).

"The losing party shall bear the court costs and shall pay compensation to the other party in respect of his expenses; a departure from this rule can be made only if special circumstances so warrant."

When determining the apportionment of costs and expenses, the court, according to the Government, enjoys a certain discretion in the choice of the criteria to be applied. It can take account, inter alia, of reprehensible or irresponsible behaviour by the parties before or during the investigation (Articles 189 and 286 of the Code of Criminal Procedure); of their having violated the principles of good faith or morality; of the principle of equity; and, finally, of questions of causation, which may lead it to form an estimate of the probable result of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

In its report of 16 May 1981 (Article 31 (art. 31) of the Convention), the Commission expressed the unanimous opinion that there had been a violation of Article 6 § 2 (art. 6-2).

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

AS TO THE LAW

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

He submitted that the violation arose from the decision of 12 May 1976 whereby the Chamber of the Canton of Zürich Assize Court, whilst terminating the prosecution on account of limitation, ordered him to pay part of the costs of the proceedings, together with compensation to Télé-Répertoire S.A. and Mr. Vass in respect of their expenses (see paragraphs 12-13 above).

I.   THE APPLICABILITY OF ARTICLE 6 § 2 (art. 6-2)

A. The field of application of Article 6 § 2 (art. 6-2) as regards subject-matter

1. Nature of the prosecution in question

The Commission observed that there was a misunderstanding on the part of the Government and disagreed with their submissions: although, for the individual entitled thereto, the right to a good reputation was civil in character, a person on trial for defamation was undoubtedly the object of a "criminal charge" and could therefore invoke paragraphs 2 and 3 of Article 6 (art. 6-2, art. 6-3). The applicant was of the same opinion.

In Switzerland, defamation is included amongst the offences defined by and punishable under the Federal Criminal Code (see paragraph 17 above). A prosecution for defamation may take place only if the victim has filed a complaint (Strafantrag), but the conduct of the prosecution is governed by the Cantonal Codes of Criminal Procedure, in this case that of the Canton of Zürich; the proceedings may lead to penalties, in the shape of a fine or even of imprisonment, which will be entered in the judicial criminal records (see paragraph 18 above).

Accordingly, the Court has no doubts as to the criminal nature of the proceedings brought against Mr. Minelli by Télé-Répertoire S.A. and Mr. Vass on 29 February 1972 (see paragraph 10 above).

2. Nature of the functions exercised by the Chamber of the Assize Court

According to the Commission, on the other hand, Article 6 § 2 (art. 6-2) is also applicable to a prosecution which terminates without a judgment in the strict sense. Moreover, in the present case, it was by means of a single procedural act that the Chamber of the Assize Court decided not to proceed further with the complaint and to order the applicant to pay part of the court costs and compensation in respect of the prosecutors’ expenses.

In the Canton of Zürich, a decision on the apportionment of costs is a normal part of criminal proceedings for defamation and is designed to settle certain consequences thereof. In this connection, it is of little moment that the decision was adopted after the ruling on the merits or that its text appears in a separate document.

In fact, one finds here neither partial procedural acts, effected concurrently or at intervals, nor even - as in the Adolf case where the Court likewise held that Article 6 (art. 6) was applicable in the different circumstances there obtaining (see the above-mentioned judgment, Series A no. 49, p. 16, § 32) - a "single procedural act effected in several stages", but rather a single all-embracing procedural act. The decision of 12 May 1976, after establishing that the statutory limitation period had expired, directed Mr. Minelli to bear two-thirds of the court costs and ordered him to pay compensation to Télé-Répertoire S.A. and Mr. Vass in respect of their expenses (see paragraph 12 above). It can be seen that the two parts of the reasons for the decision cannot be dissociated: the apportionment of the costs was the corollary of and necessary complement to the termination of the prosecution; moreover, the Government acknowledged this at the hearings. This is confirmed clearly by the operative provisions: immediately after a first point declaring that the charge could not be heard came the points dealing with the court costs and the compensation in respect of expenses.

B. The field of application in time of Article 6 § 2 (art. 6-2)

The Commission did not subscribe to this argument. In its view, judicial proceedings can come formally to a close in several stages rather than all at once; here, it was the decision of 12 May 1976, with its extensive reasoning, that constituted the final stage.

C. Recapitulation

II.   COMPLIANCE WITH ARTICLE 6 § 2 (art. 6-2)

A. Limits of the Court’s task

As the Government emphasised by way of alternative plea, the system which permits the adoption of such a solution in certain cases is deeply rooted in Swiss legal tradition: it is enshrined in Federal legislation and in that of most Cantons, including the Canton of Zürich, and has been developed by case-law and practice. According to Mr. Minelli, on the other hand, it is the State which should bear all the risks of criminal proceedings, not only as regards evidence but also as regards costs.

In the Commission’s view, the system in question could not of itself run counter to Article 6 § 2 (art. 6-2) of the Convention; however, a problem arose if the reasons for the court’s decision or some other precise and conclusive evidence showed that the apportionment of costs resulted from an appraisal of the guilt of the accused.

B. The decision of the Chamber of the Canton of Zürich Assize Court (12 May 1976)

The Commission, for its part, expressed the contrary opinion: in its view, the Chamber of the Canton of Zürich Assize Court had considered that Mr. Minelli was guilty.

For these reasons, which were set out at length and cannot be dissociated from the operative provisions (see the above-mentioned Adolf judgment, Series A no. 49, p. 18, § 39), the Chamber of the Assize Court concluded that, in the absence of limitation, the "National Zeitung" article complained of would "very probably have led to the conviction" of the applicant. In setting out those reasons, the Chamber treated the conduct denounced by the private prosecutors as having been proved; furthermore, the reasons were based on decisions taken in two other cases to which, although they concerned the same facts, Mr. Minelli had not been a party and which, in law, were distinct from his case.

In this way the Chamber of the Assize Court showed that it was satisfied of the guilt of Mr. Minelli, an accused who, as the Government acknowledged, had not had the benefit of the guarantees contained in paragraphs 1 and 3 of Article 6 (art. 6-1, art. 6-3). Notwithstanding the absence of a formal finding and despite the use of certain cautious phraseology ("in all probability", "very probably"), the Chamber proceeded to make appraisals that were incompatible with respect for the presumption of innocence.

C. The Federal Court’s judgment (16 May 1979)

The judgment of 16 May 1979 thus added certain nuances to the decision of 12 May 1976; however, it was confined to clarifying the reasons for that decision, without altering their meaning or scope. By rejecting Mr. Minelli’s appeal, the judgment confirmed the decision in law; at the same time, it approved the substance of the decision on the essential points.

The Federal Court might perhaps have arrived at a different decision had the applicant invoked before that court his right to be heard (see paragraph 16 above), as he subsequently did - without the Government pleading a failure to exhaust domestic remedies - before the Commission and the Court. However, this possibility in no way affects the conclusion that follows from an examination of the decision of 12 May 1976, even if it is seen in conjunction with the judgment of 16 May 1979.

D. Conclusion

III.  THE APPLICATION OF ARTICLE 50 (art. 50)

- for non-pecuniary loss, such sum as the Court might see fit;

- the reimbursement of court costs, lawyer’s fees and expenses and his personal expenses, referable to the proceedings brought against him in Switzerland;

- the reimbursement of his lawyer’s fees and expenses and his personal expenses, referable to the proceedings in his case before the Commission and the Court.

As the Agent of the Government has submitted detailed observations on the matter, the Court considers that the question is ready for decision (Rule 50 § 3, first sentence, of the Rules of Court). In accordance with the usual practice, it is proper to distinguish here between damage caused by a violation of the Convention and the costs and expenses necessarily incurred by the victim (see, inter alia, the Le Compte, Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54, p. 7, § 14).

A. Non-pecuniary loss

B. Costs and expenses

1. Costs and expenses incurred in Switzerland

Before examining each of these claims, the Court would point out that the complaint which it has accepted in paragraph 41 above concerned not the actual substance of the prosecution for defamation brought against the applicant but exclusively the reasons adopted on that occasion by the Swiss courts in their decisions on the apportionment of the costs and expenses.

(a) Costs and expenses referable to the District Court and the Assize Court proceedings

He is entitled to recover these sums in view of the direct link between them and the reasons for the decision, which the Court has held to be incompatible with the presumption of innocence.

The Court sees no cause to accept the first of these claims, in respect of which the applicant has, moreover, supplied no details. (see the above-mentioned Le Compte, Van Leuven and De Meyere judgment, ibid., p. 11, § 25 in fine). As regards the second claim, the only relevant period is that after 21 January 1976, the date on which the approaching expiry of the "absolute" limitation period led the Assize Court to raise the question of the apportionment of the costs. For this phase of the proceedings, which might have resulted in the prevention of the breach of the requirements of Article 6 § 2 (art. 6-2), the Court fixes, on an equitable basis, the sum to be awarded to the applicant at 600 SF.

(b) Costs and expenses referable to the appeals against the decision of 12 May 1976

The same applies to the lawyer’s fees and expenses which he incurred in making those appeals, which were filed on his behalf by Mr. Kuhn; they were said to amount to 600 SF and 800 SF respectively. Since these figures appear plausible and reasonable, the Court does not deem it necessary to call for the vouchers requested by the Government.

(c) Costs and expenses referable to the appeal of 24 November 1975 to the Federal Court

2. Strasbourg costs and expenses

The Government raised no objection as regards reimbursement of the fees paid by Mr. Minelli to Mr. Kuhn and the travel and subsistence expenses incurred by each of them; they left it to the Court to fix the amount thereof having regard to any evidence provided by the applicant.

The same remark also applies to the 400 SF claimed for travel and subsistence expenses incurred by the applicant in coming to Strasbourg. Having regard to the nature of the case, there was real value in the presence of Mr. Minelli before the Commission, and even more so before the Court since he himself appeared at the hearings of 26 October 1982 (see notably, mutatis mutandis, the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 54, p. 11, § 25).

On the other hand, the claim for loss of earning-power (1,560 SF) falls to be rejected, as has already been done by the Court for the District Court and the Assize Court proceedings (see paragraph 48 above).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 § 2 (art. 6-2) of the Convention;

2. Holds that the respondent State is to pay to the applicant eight thousand six hundred and sixty-eight Swiss francs and sixty-five centimes (8,668.65 SF) in respect of costs and expenses and rejects the remainder of the claim for just satisfaction.

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-fifth day of March, one thousand nine hundred and eighty-three.

Gérard WIARDA

President

Marc-André EISSEN

Registrar