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You are here: BAILII >> Databases >> European Court of Human Rights >> IMBRIOSCIA v. SWITZERLAND - 13972/88 [1993] ECHR 56 (24 November 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/56.html Cite as: 17 EHRR 441, (1994) 17 EHRR 441, [1993] ECHR 56

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In the case of Imbrioscia 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. Gölcüklü,

Mr L.-E. Pettiti,

Mr J. De Meyer,

Mr I. Foighel,

Mr R. Pekkanen,

Mr A.B. Baka,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 22 April and 28 October 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 32/1992/377/451. 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 11 September 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. 13972/88) against the Swiss Confederation lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mr Franco Imbrioscia, on 5 May 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 object of the request 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 6 paras. 1 and 3 (c) (art. 6-1,

art. 6-3-c) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and communicated the name of

the lawyer who was to represent him (Rule 30). Before the Commission

the applicant had been designated by the initial "I.", but he now

agreed to the disclosure of his identity.

The Italian Government, who had been informed by the Registrar

of their right to intervene in the proceedings (Article 48 (b) of the

Convention and Rule 33 para. 3 (b)) (art. 48-b), gave no indication

that they wished to do so.

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 26 September 1992, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr J. De Meyer,

Mr I. Foighel, Mr R. Pekkanen, Mr A.B. Baka and Mr M.A. Lopes Rocha

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Swiss

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the orders made in consequence,

the Registrar received the Government's memorial on 21 December 1992

and the applicant's memorial on 4 January 1993. On 24 February the

Secretary to the Commission informed the Registrar that the Delegate

would address the Court at the hearing; subsequently, he produced

various documents requested by the Registrar on the instructions of the

President.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

19 April 1993. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Boillat, Head of the European Law

and International Affairs Section,

Federal Office of Justice, Agent,

Mr F. Schürmann, Deputy Head of the European

Law and International Affairs Section,

Federal Office of Justice, Counsel;

(b) for the Commission

Mr B. Marxer, Delegate;

(c) for the applicant

Mr C.F. Fischer, Rechtsanwalt, Counsel.

The Court heard addresses by Mr Boillat, by Mr Marxer and by

Mr Fischer, as well as their replies to its questions.

6. On 19 May the Agent of the Government filed a number of

documents, as requested by the Registrar on the Court's instructions.

AS TO THE FACTS

7. Mr Franco Imbrioscia, a commercial traveller of Italian

nationality, resided at Barletta (Italy) at the material time.

I. The particular circumstances of the case

A. The applicant's arrest

8. On 2 February 1985 the applicant arrived at Zürich airport

from Bangkok. The customs officers found 1.385 kg of heroin in the

suitcase of another passenger on the same flight, M. When asked

whether he had been travelling with someone else, the latter pointed

out the applicant. Mr Imbrioscia explained that they were both part

of a group; he was searched and, when nothing was found, released.

9. After further investigations, he was none the less suspected

of being linked to M., as a result of which he was arrested on the same

day at Lugano, on the train on which he was returning to Italy.

B. The investigation

10. Mr Imbrioscia immediately sought the help of Mrs S. C., who

contacted a lawyer, Ms B. G.

11. On Sunday 3 February the applicant was questioned by the

Zürich district prosecutor (Bezirksanwalt) with the assistance of an

interpreter. He stated that he had caught the plane at Zürich because

it was the cheapest way of travelling to Bangkok. By pure coincidence

another person had also bought a ticket at Barletta for the same

flight, but they had never sat next to each other during the trip. In

addition, he denied that he had been involved in importing drugs

into Switzerland. When he was advised that he was being remanded in

custody, he requested that a lawyer be assigned to him as he did not

know any lawyers in Zürich.

He remained in custody in the building of the Bülach district

prosecutor's department.

12. On 8 February Ms B. G. wrote to Mr Imbrioscia offering to

represent him. He returned the necessary authority to act to her after

signing it.

13. On 13 and 15 February the police interrogated him without his

lawyer being present.

On 18 February 1985 he was questioned by a Bülach district

prosecutor and he asked to be confronted with M., in order to prove his

innocence.

14. On 25 February Ms B.G. withdrew as the applicant's lawyer.

The available documents do not show to what extent she had participated

in his defence, but it is apparent from the prison register that she

never visited him.

On the same day Mr Fischer was officially assigned to act for

Mr Imbrioscia and on 27 February was given permission to visit him,

which he did for the first time on 1 March 1985. On 4 March 1985 the

case file that had been sent to him for inspection on 27 February was

returned by him to the district prosecutor's office .

15. Mr Imbrioscia was questioned again by the district prosecutor

on 8 March. Mr Fischer had not been invited to attend the interview

and does not seem to have asked to be present, but he received a

transcript of it. On 15 March he visited the applicant.

16. On 2 and 3 April 1985 the district prosecutor and two police

officers went to Barletta to examine several witnesses, including two

travel agents.

17. On 9 April 1985 Mr Imbrioscia's lawyer had a conversation with

the district prosecutor, the subject of which is a matter of dispute.

According to the judgment delivered by the Zürich Court of Appeal

(Obergericht) on 17 January 1986 (see paragraphs 23-24 below), the

district prosecutor told the lawyer that his client would be questioned

again on 11 April. Mr Fischer denies this and claims that the

discussion centred on the applicant's detention.

In any event, he was not present on 11 April when

Mr Imbrioscia was questioned about the inconsistencies in his

statements and disputed the findings of the inquiries made in Italy.

18. By a letter of 17 April 1985 Mr Fischer acknowledged receipt

of the transcripts of the witnesses' statements in Barletta and of the

questioning on 11 April (see paragraphs 16 and 17 above), and

complained that he had not been invited to attend. He visited

Mr Imbrioscia the next day.

19. Mr Fischer was, on the other hand, present on 6 June 1985 when

the applicant was informed that the preliminary investigation had been

concluded and that he faced possible charges of heroin smuggling and

forgery. Mr Imbrioscia stated that he had had nothing to do with the

matters of which he was accused under the first head and that he had

acted in good faith as regards the second. His lawyer remained silent.

C. The court proceedings

1. In the Bülach District Court

20. On 10 June 1985 the district prosecutor's office committed

Mr Imbrioscia and M. for trial in the Bülach District Court

(Bezirksgericht) for drug trafficking.

On 13 June Mr Fischer visited his client in prison.

21. At the hearing on 26 June 1985 the two accused were again

questioned about the facts, and their counsel made their submissions.

Mr Fischer also examined M.

The court convicted the applicant and his co-defendant of

offences against the dangerous drugs legislation

(Betäubungsmittelgesetz). It sentenced Mr Imbrioscia to seven years'

imprisonment and banned him from residing in Switzerland for fifteen

years; his co-defendant was given a six-year prison sentence. The

defendants were each ordered to pay half the costs of the proceedings.

22. The court noted that the applicant had contradicted himself

on several occasions - as to whether he knew M.'s first name and

surname, whether he had sat next to him in the aeroplane and so on.

Having regard to these inconsistencies, it considered that the

accused's claim that he was innocent could no longer be taken seriously

(nicht mehr ernstgenommen werden kann).

M., who was illiterate, had also made such contradictory

statements that there were doubts as to his mental capacity; he could

not therefore be regarded as having been the organiser of the drug

smuggling. On the last occasion he was questioned, on 15 May 1985, he

had moreover stated that his co-defendant had been with him

continuously and had told him when he should take delivery of the

suitcase. Mr Imbrioscia's role had therefore been to assist and

supervise M.

The court found that the applicant had knowingly and willingly

participated in committing the offence.

2. In the Zürich Court of Appeal

23. On 17 January 1986, after a hearing during which Mr Imbrioscia

was again questioned by the judges, in Mr Fischer's presence, the

Zürich Court of Appeal (Obergericht) dismissed his appeal (Berufung).

It upheld the sentence imposed by the District Court (see paragraph 21

above) and in addition ordered the applicant to pay the costs of the

appeal proceedings.

24. As regards his lawyer's absence during the interviews it

observed that the lawyer had been informed of the date of the one on

11 April 1985 but had not attended, and that he had not put any

questions at the last interview on 6 June 1985, which he had attended

(see paragraph 19 above). Nor had the appellant shown how his defence

had been adversely affected.

On the merits, the court followed the trial court's reasoning;

it considered it scarcely plausible that two people who did not know

each other should have travelled together from Barletta to Bangkok and

back via Zürich and have stayed in Thailand in the same hotel.

3. In the Zürich Court of Cassation

25. An application by Mr Imbrioscia to the Zürich Court of

Cassation (Kassationsgericht) for a declaration of nullity

(Nichtigkeitsbeschwerde) was dismissed on 8 October 1986.

With regard to the complaint based on the fact that no lawyer

was present at the interviews, the Court of Cassation referred to the

case-law of the Federal Court (see paragraph 27 below). The applicant

had not alleged that he had asked to have his lawyer present and that

his request had been rejected on irrelevant grounds (unsachliche

Gründe); his lawyer had, moreover, attended the interview on

6 June 1985 and the hearing on 26 June (see paragraphs 19 and 21

above).

4. In the Federal Court

26. On 5 November 1987 the Federal Court dismissed a public-law

appeal by the applicant against the judgments of 17 January 1986 and

8 October 1986 (see paragraphs 23-25 above).

The Federal Court referred to its case-law concerning

Article 17 para. 2 of the Code of Criminal Procedure of the Canton of

Zürich (see paragraph 27 below). It stressed that Mr Imbrioscia

had not complained that a request to have his lawyer present had been

arbitrarily rejected; the lawyer had attended the last questioning and

had been sent the transcripts of the previous ones. There had

therefore been no infringement of the defence rights guaranteed to

Mr Imbrioscia under the Swiss Federal Constitution and the Convention.

II. Relevant domestic law

27. At the material time Article 17 of the Code of Criminal

Procedure of the Canton of Zürich was worded as follows:

"During the investigation counsel for the defence must be

granted access to the file in so far as the purposes of

the investigation are not thereby jeopardised. He cannot be

refused the right to inspect reports by experts or

transcripts of interviews at which he is entitled to be

present.

The investigating law officer may give counsel leave to

attend personal interviews with the person charged.

Once the investigation is concluded, counsel for the defence

shall have unrestricted access to the file."

According to the Federal Court's case-law, the second

paragraph of this provision permits the prosecuting authorities to

refuse to allow a lawyer to be present on the first occasion when a

suspect is questioned without giving reasons, but requires them to give

reasons if they intend to exclude the lawyer from subsequent

interviews.

The practice in Zürich is that the lawyer does not generally

attend when his client is interrogated by the police, but he is usually

sent the transcripts.

28. The first two paragraphs of the Article cited above were

amended on 1 September 1991 and now provide:

"During the investigation access to the file must be granted

to the person charged and to his defence counsel on request,

if and in so far as the purposes of the investigation are

in no way thereby jeopardised. The right to inspect

documents already communicated to the person charged as well

as experts' reports and the transcripts of investigation

interviews which counsel for the defence has been given leave

to attend cannot be refused.

The investigating law officer must give counsel for the

defence an opportunity to attend examinations of the person

charged if the latter so wishes and if the purposes of the

investigation are not likely to be jeopardised. Members of

the cantonal Bar must be admitted to examinations once the

person charged has made his first statement to the

investigating law officer or if he has been in custody for

fourteen days. A defence counsel who attends an examination

must be able to put questions to the person charged that are

likely to throw light on the case."

PROCEEDINGS BEFORE THE COMMISSION

29. Mr Imbrioscia lodged his application with the Commission on

5 May 1988. He complained that his lawyer had not been present at most

of his interrogations; he also complained, inter alia, that the lawyer

had not attended the examination of various witnesses in Italy and that

an appeal judge had been biased; he relied on Article 6 paras. 1, 2

and 3 (b), (c) and (d) (art. 6-1, art. 6-2, art. 6-3-b, art. 6-3-c,

art. 6-3-d) of the Convention.

30. On 31 May 1991 the Commission declared the application

(no. 13972/88) admissible as regards the first complaint and dismissed

it, as being manifestly ill-founded, in respect of the others.

In its report of 14 May 1992 (made under Article 31)

(art. 31), it expressed the opinion, by nine votes to five, that there

had been no violation of Article 6 paras. 1 and 3 (c) (art. 6-1,

art. 6-3-c) of the Convention. The full text of the Commission's

opinion and of the three dissenting opinions contained in the report

is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 275 of Series A

of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

THE GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

31. In their memorial, the Government requested the Court

"to hold that the Swiss authorities had not infringed the

... Convention ... on account of the facts which gave rise to

the application lodged by Mr Imbrioscia".

AS TO THE LAW

32. The applicant complained that he had not been assisted by a

lawyer during several of his interrogations by the police and by the

Bülach and Zürich district prosecutors; he relied on Article 6

paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention,

which provides:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law ...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(c) to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient

means to pay for legal assistance, to be given it free when

the interests of justice so require;

..."

33. According to the applicant, he was, despite his express

request, unassisted by counsel when he was questioned by the police or

the district prosecutor on 3, 13, 15 and 18 February, 8 March and

11 April 1985, since his successive lawyers had not been invited to

attend. The lawyer he had first instructed, Ms B. G., had withdrawn

soon after her appointment. Indeed, he had effectively had no lawyer

at all until 27 February 1985, when Mr Fischer was informed that he had

been officially assigned; and at that time most of the interviews had

already taken place. Mr Imbrioscia also drew attention to the

importance of the investigation in Zürich criminal procedure; he

inferred that in order to be effective, the right to defend oneself

must cover not only the trial, but also the preceding interrogations

by the police and the phase which took place before the district

prosecutor.

34. The Government submitted first that preliminary investigations

were not covered by Article 6 paras. 1 and 3 (art. 6-1, art. 6-3).

They also maintained that neither the Swiss Constitution nor the

Convention directly guaranteed defence lawyers the right to be present

at the interrogations of their clients during criminal investigations.

Admittedly, the applicant had requested the assistance of counsel at

the outset, but he had not asked for counsel to be present while he was

being questioned, and neither Ms B. G. nor Mr Fischer had taken any

steps to that end. Furthermore, as soon as he had been assigned,

Mr Fischer had received the case file and obtained permission to visit

his client, which he did on four occasions. Lastly, as was shown by

the transcripts, the hearings in the Bülach District Court and the

Zürich Court of Appeal were taken up mainly with the same points as the

interrogations, and counsel for the applicant had participated in them

and had every opportunity to challenge the evidence gathered at an

earlier stage.

35. Taking the proceedings as a whole, the Commission was of the

view that the absence of a lawyer at the applicant's various

interrogations did not lead to a disadvantage which was likely to

affect the position of the defence at the trial and thus also the

outcome of the proceedings.

36. The Court cannot accept the Government's first submission

without qualification. Certainly the primary purpose of Article 6

(art. 6) as far as criminal matters are concerned is to ensure a fair

trial by a "tribunal" competent to determine "any criminal charge", but

it does not follow that the Article (art. 6) has no application to

pre-trial proceedings. The "reasonable time" mentioned in paragraph

1 (art. 6-1), for instance, begins to run from the moment a "charge"

comes into being, within the autonomous, substantive meaning to be

given to that term (see, for example, the Wemhoff v. Germany judgment

of 27 June 1968, Series A no. 7, pp. 26-27, para. 19, and the Messina

v. Italy judgment of 26 February 1993, Series A no. 257-H, p. 103,

para. 25); the Court has occasionally even found that a reasonable time

has been exceeded in a case that ended with a discharge (see the Maj

v. Italy judgment of 19 February 1991, Series A no. 196-D, p. 43,

paras. 13-15) or at the investigation stage (see the Viezzer v. Italy

judgment of 19 February 1991, Series A no. 196-B, p. 21, paras. 15-17).

Other requirements of Article 6 (art. 6) - especially of paragraph 3

(art. 6-3) - may also be relevant before a case is sent for trial if

and in so far as the fairness of the trial is likely to be seriously

prejudiced by an initial failure to comply with them (see, inter alia,

the following judgments: Engel and Others v. the Netherlands,

8 June 1976, Series A no. 22, pp. 38-39, para. 91; Luedicke, Belkacem

and Koç v. Germany, 28 November 1978, Series A no. 29, p. 20, para. 48;

Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80,

pp. 44-45, paras. 95-99; Can v. Austria, 30 September 1985, Series A

no. 96, p. 10, para. 17; Lamy v. Belgium, 30 March 1989, Series A

no. 151, p. 18, para. 37; Delta v. France, 19 December 1990, Series A

no. 191-A, p. 16, para. 36; Quaranta v. Switzerland, 24 May 1991,

Series A no. 205, pp. 16-18, paras. 28 and 36; and S. v. Switzerland,

28 November 1991, Series A no. 220, pp. 14-16, paras. 46-51).

37. The right set out in paragraph 3 (c) of Article 6 (art. 6-3-c)

is one element, amongst others, of the concept of a fair trial in

criminal proceedings contained in paragraph 1 (art. 6-1) mutatis

mutandis, the Artico v. Italy judgment of 13 May 1980, Series A no. 37,

p. 15, paras. 32-33, and the Quaranta judgment, cited above,

Series A no. 205, p. 16, para. 27).

38. While it confers on everyone charged with a criminal offence

the right to "defend himself in person or through legal

assistance ...", Article 6 para. 3 (c) (art. 6-3-c) does not specify

the manner of exercising this right. It thus leaves to the Contracting

States the choice of the means of ensuring that it is secured in their

judicial systems, the Court's task being only to ascertain whether the

method they have chosen is consistent with the requirements of a fair

trial (see the Quaranta judgment previously cited, Series A no. 205,

p. 16, para. 30). In this respect, it must be remembered that the

Convention is designed to "guarantee not rights that are theoretical

or illusory but rights that are practical and effective" and that

assigning a counsel does not in itself ensure the effectiveness of the

assistance he may afford an accused (see the Artico judgment previously

cited, Series A no. 37, p. 16, para. 33).

In addition, the Court points out that the manner in which

Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) is to be applied

during the preliminary investigation depends on the special features

of the proceedings involved and on the circumstances of the case; in

order to determine whether the aim of Article 6 (art. 6) - a fair

trial - has been achieved, regard must be had to the entirety of the

domestic proceedings conducted in the case (see, mutatis mutandis, the

Granger v. the United Kingdom judgment of 28 March 1990, Series A

no. 174, p. 17, para. 44).

39. At the end of his first examination by the Zürich district

prosecutor on 3 February 1985 Mr Imbrioscia requested that counsel

should be assigned to him as he did not know any lawyers in Zürich (see

paragraph 11 above). However, immediately after his arrest he had

taken steps, with the help of a friend, to instruct counsel of his own

choosing; and on 8 February Ms B. G. offered her services, whereupon

the applicant returned to her the necessary authority to act after

signing it (see paragraphs 10 and 12 above).

Ms B. G. ceased to act for the applicant on 25 February (see

paragraph 14 above), without having visited him. In the meantime

Mr Imbrioscia had been interviewed three times, firstly by the police,

on 13 and 15 February 1985, and then by the Bülach district prosecutor

on 18 February (see paragraph 13 above). Ms B. G. had not been invited

to attend any of these interviews, since Zürich cantonal legislation

and practice did not require her to be present (see paragraph 27

above), and she had, moreover, not asked to attend.

40. The applicant and the Government held each other responsible

for the inactivity of the defence over that period. Counsel for the

applicant pleaded the complexity of the assignment procedure, which he

said had prevented his colleague from being able to prepare herself in

time to be able to attend the interviews in question; furthermore, the

authorities had done nothing to postpone them. In the Government's

view, it was for Mr Imbrioscia, and also for Ms B. G., to react, yet

neither of them had protested.

41. However that may be, the applicant did not at the outset have

the necessary legal support, but "a State cannot be held responsible

for every shortcoming on the part of a lawyer appointed for legal aid

purposes" (see the Kamasinski v. Austria judgment of 19 December 1989,

Series A no. 168, p. 33, para. 65) or chosen by the accused. Owing to

the legal profession's independence, the conduct of the defence is

essentially a matter between the defendant and his representative;

under Article 6 para. 3 (c) (art. 6-3-c) the Contracting States are

required to intervene only if a failure by counsel to provide effective

representation is manifest or sufficiently brought to their attention

(ibid.).

Since the period in question was so short and the applicant

had not complained about Ms B. G.'s inactivity, the relevant

authorities could scarcely be expected to intervene. When she informed

them of her withdrawal on 25 February 1985, they at once officially

assigned a lawyer for his defence (see paragraph 14 above).

42. Mr Fischer received the case file on 27 February 1985 and went

to see his client in prison on 1 March. When he returned it to the

district prosecutor on 4 March, he did not raise the issue of the

non-attendance by a lawyer at the earlier interrogations of which he

had inspected the transcripts (see paragraph 14 above).

The district prosecutor questioned Mr Imbrioscia on 8 March,

11 April and 6 June 1985. It appears that the applicant was able to

talk to his counsel before and after each of these interviews (see

paragraphs 14, 15 and 18 above). Mr Fischer did not, however, attend

the first two. It was not until 17 April that he complained that he

had not been given notice that they were taking place (see paragraph 18

above). Thereupon the district prosecutor allowed him to attend the

last interview, which concluded the investigation; the lawyer did not

then put any questions, nor did he challenge the findings of the

investigation (see paragraph 19 above), which he was aware of as he had

received the relevant transcripts.

43. Furthermore, the hearings in the Bülach District Court and the

Zürich Court of Appeal were attended by adequate safeguards: on

26 June 1985 and 17 January 1986 the judges heard the applicant in the

presence of his lawyer, who had every opportunity to examine him and

his co-defendant (see paragraphs 21 and 23 above) and to challenge the

prosecution's submissions in his address.

44. A scrutiny of the proceedings as a whole therefore leads the

Court to hold that the applicant was not denied a fair trial.

There has thus been no breach of paragraphs 1 and 3 (c) of

Article 6 (art. 6-1, art. 6-3-c) taken together.

FOR THESE REASONS, THE COURT

Holds by six votes to three that there has been no breach of

Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the

Convention.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 24 November 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the dissenting

opinions of Mr Pettiti, Mr De Meyer and Mr Lopes Rocha are annexed to

this judgment.

Initialled: R. R.

Initialled: M.-A. E.

DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I voted with the minority, being of the opinion that there had

been a clear violation of Article 6 (art. 6). While it may be accepted

that Article 6 (art. 6) does not formally require the assistance of a

lawyer for an initial period of detention, the Convention does require

such assistance for the phase of the preliminary investigation. Even

though the specific legislation of the Canton of Zürich does not appear

to provide for a period of police custody and entrusts to the district

prosecutor the task of carrying out the first inquiries, the accused

was questioned by the police during the first twenty-four hours and

then on several occasions under the responsibility of the prosecutor.

The phase of the preliminary investigation, which lasted some weeks,

was the equivalent of an investigation conducted by an investigating

judge under the continental inquisitorial system.

Even if it may be accepted that within the Zürich system the

first stage of this phase can be conducted by a prosecutor rather than

by a member of the judiciary, it remains evident that the assistance

of a lawyer is indispensable if the proceedings are to be fair and the

rights of the defence respected for the purposes of Article 6 (art. 6).

It is clear that the lawyer, Mr Fischer, after his

appointment, was not invited to attend the second series of

interrogations effected by the prosecutor, who was aware that Ms B. G.

had withdrawn her services. That a lawyer should be so summoned is

essential for examining whether the principle that proceedings must be

adversarial has been complied with. The lawyer cannot be expected to

ask to be summoned when he does not know the date of the interrogation.

If the lawyer does not comply with such a summons, it will be for the

judge to take any appropriate measures: postponement, appointment of

a replacement lawyer and so on. Ultimately this question may be

relevant to proceedings brought to establish nullity on the ground of

breach of an essential procedural requirement.

In any event it is absolutely necessary for the summons to be

issued. Yet there was no express provision to this effect in the

relevant legislation of the Canton of Zürich. In order to reach its

finding that there had been no violation, the Court took the following

view:

"42. Mr Fischer received the case file on 27 February 1985

and went to see his client in prison on 1 March. When he

returned it to the district prosecutor on 4 March, he did not

raise the issue of the non-attendance by a lawyer at the

earlier interrogations of which he had inspected the

transcripts (see paragraph 14 above).

The district prosecutor questioned Mr Imbrioscia on

8 March, 11 April and 6 June 1985. It appears that the

applicant was able to talk to his counsel before and after

each of these interviews (see paragraphs 14, 15 and 18

above). Mr Fischer did not, however, attend the first two.

It was not until 17 April that he complained that he had not

been given notice that they were taking place (see

paragraph 18 above). Thereupon the district prosecutor

allowed him to attend the last interview, which concluded the

investigation; the lawyer did not then put any questions, nor

did he challenge the findings of the investigation (see

paragraph 19 above), which he was aware of as he had received

the relevant transcripts.

43. Furthermore, the hearings in the Bülach District

Court and the Zürich Court of Appeal were attended by

adequate safeguards: on 26 June 1985 and 17 January 1986 the

judges heard the applicant in the presence of his lawyer, who

had every opportunity to examine him and his co-defendant

(see paragraphs 21 and 23 above) and to challenge the

prosecution's submissions in his address."

However, in my opinion, a violation should be found on the

basis of other elements in the file and the practice of the Canton of

Zürich. The interrogations were effected without a lawyer being

present or being invited to attend between 13 February and May 1985,

after the interrogation carried out by the police on 2 February.

Mr Fischer did not have access to the file until 27 February 1985. The

change of lawyers, Mr Fischer's visit to the prison, his presence at

the final interrogation of the investigation and even his failure to

lodge a protest or to express reservations on 6 June cannot justify the

earlier infringements of the rights of the defence. The wording of

Article 17 of the Code of Criminal Procedure of the Canton of Zürich,

as applicable at the material time (it has since been amended), made

no reference to an obligation to invite the lawyer to attend.

The legislation of the different cantons is supposed to

conform to the European Convention on Human Rights and to the case-law

of the European Court and that conformity is subject to the supervision

of the Swiss Federal Court. In my opinion the present case shows that

at the material time the judicial practice of the Canton of Zürich did

not take full account of Article 6 (art. 6).

This situation runs counter to all the recent developments in

European criminal procedure, which are directed towards recognising the

crucial position of the defence throughout the investigation and the

criminal trial.

Admittedly the circumstances of the present case limit the

scope of the Court's decision. The fact remains, none the less, that

the above-mentioned lacunae in the legislation of the Canton of Zürich

are evident and in the instant case resulted in an infringement of the

rights of the defence.

That is why I voted in favour of finding a violation of

Article 6 (art. 6).

The legislation of the different member States of the Council

of Europe is also developing towards securing better protection of the

rights of the defence in accordance with the spirit of Article 6

(art. 6). Thus as regards police custody, Germany provides for the

intervention and presence of a lawyer immediately and France, following

a recent reform, after nineteen hours.

In any event, this intervention is indispensable at the stage

of the preliminary investigation, the investigation into the merits of

the case.

To comply with this requirement the summons must be a

compulsory step in the proceedings so that the completion of this

formality can be noted in the official record and to leave open the

possibility of subsequently pleading the nullity of the proceedings.

The fact that the proceedings are adversarial in nature at the

final stage and at the trial cannot cure earlier irregularities in this

respect, because statements obtained in the absence of a lawyer can be

decisive in reaching a verdict.

The proceedings in the Imbrioscia case provide an example of

the difficulty encountered, even in the member States of the Council

of Europe, in securing, after forty years, recognition in the

legislation and in the attitudes of the legislators and lawyers of the

guiding principles of the notion of fair trial derived from the

European Convention on Human Rights.

DISSENTING OPINION OF JUDGE DE MEYER

On the 13th of June 1966, the Supreme Court of the United

States of America delivered its well-known Miranda judgment, in which

the rules governing custodial interrogation were summarised as follows:

"(U)nless other fully effective means are adopted to notify

the person of his right of silence and to assure that the

exercise of the right will be scrupulously honored, the

following measures are required. He must be warned prior to

any questioning that he has the right to remain silent, that

anything he says can be used against him in a court of law,

that he has the right to the presence of an attorney, and

that if he cannot afford an attorney one will be appointed

for him prior to any questioning if he so desires.

Opportunity to exercise these rights must be afforded to him

throughout the interrogation. After such warnings have been

given, and such opportunity afforded him, the individual may

knowingly and intelligently waive these rights and agree to

answer questions or make a statement. But unless and until

such warnings and waiver are demonstrated by the prosecution

at trial, no evidence obtained as a result of interrogation

can be used against him"*.

In the same judgment it was also stated that there can be no

questioning if the person "indicates ... that he wishes to consult with

an attorney before speaking" or if, being alone, he "indicates ... that

he does not wish to be interrogated"**.

These principles, then clearly defined, belong to the very

essence of fair trial***.

Therefore I cannot agree with the present judgment, in which

our Court fails to recognise and apply them.

_______________

* Miranda v. Arizona, Vignera v. New York, Westover v. United States

and California v. Stewart, 384 US 436, at 478-479, 16 LEd 2d 694, at

726.

** 384 US at 444-445, 16 LEd 2d at 706-707.

*** See also the dissenting opinion of Mr Loucaides, annexed to the

Commission's report in the present case.

_______________

DISSENTING OPINION OF JUDGE LOPES ROCHA

(Translation)

I subscribe fully to the views expressed in the dissenting

opinions of Judge Pettiti and Judge De Meyer, to which I would add the

following comments.

The most modern European codes of criminal procedure recognise

that the right of an accused to legal assistance at each stage of the

proceedings is an established one which is considered to be the most

perfect embodiment of the rights of the defence and therefore of fair

proceedings intended to secure for the accused an ever stronger and

more effective position as a party to the trial.

The enjoyment of such a right is undoubtedly justified,

especially in the initial stages of the proceedings when the accused

has to confront the prosecuting authorities on rather unequal terms,

and the fact that he is allowed the assistance of a legal specialist

at the subsequent interrogations cannot effectively cure this defect.

Admittedly, at the trial the accused has the right to seek to

refute the evidence obtained, including any confession that he may have

made, but experience shows that at this stage of the proceedings that

right is frequently insufficient to overturn opinions formed on the

basis of statements made in the absence of a lawyer.

That is why, in the present case, I took the view that there

had been a violation of Article 6 paras. 1 and 3 (c) (art. 6-1,

art. 6-3-c) of the Convention.