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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> THOMANN v. SWITZERLAND - 17602/91 [1996] ECHR 24 (10 June 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/24.html Cite as: (1997) 24 EHRR 553, [1996] ECHR 24, 24 EHRR 553

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In the case of Thomann v. Switzerland (1),

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 Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr C. Russo,

Mr J. De Meyer,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr J. Makarczyk,

Mr P. Jambrek,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 25 January and 21 May 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 33/1995/539/624. 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.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 12 April 1995, 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. 17602/91) lodged with the Commission under Article 25

(art. 25) by a Swiss national, Mr Martin Thomann, on 5 December 1990.

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 para. 1 of the Convention

(art. 6-1).

2. In response to the enquiry made in accordance with

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

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

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. 4 (b)). On 5 May 1995, in the presence of the

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

members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr C. Russo,

Mr J. De Meyer, Mr M.A. Lopes Rocha, Mr J. Makarczyk and Mr P. Jambrek

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), 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 order made in consequence,

the Registrar received the Government's and the applicant's memorials

on 2 November 1995. On 24 November 1995 and 4 January 1996 the

Commission produced various documents, as requested by the Registrar

on the President's instructions.

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

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

24 January 1996. 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, European Law and

International Affairs Section,

Federal Office of Justice, Adviser;

(b) for the Commission

Mr M.P. Pellonpää, Delegate;

(c) for the applicant

Ms B. Pauen, avocate, Counsel.

The Court heard addresses by Mr Pellonpää, Ms Pauen and

Mr Boillat.

AS TO THE FACTS

I. Particular circumstances of the case

6. Mr Martin Thomann, a Swiss national who was born in 1949, lives

in Zurich.

A. The in absentia proceedings

7. On 13 December 1988 the prosecutor's office of the Canton of

Basel-Stadt brought a prosecution (Anklageerhebung) against the

applicant on charges of aggravated fraud and attempted aggravated

fraud, having had previous convictions for the same offence

(wiederholter und fortgesetzter vollendeter und versuchter, teils

gewerbsmäßiger Betrug), negligent bankruptcy (leichtsinniger Konkurs)

and failure to keep accounts (Unterlassung der Buchführung).

8. The cantonal Criminal Court (Strafgericht) set down the case

for trial from 10 to 17 May 1989. However, it was not possible to

serve the summons to appear (Vorladung zur Verhandlung) on the

applicant, because he had quit his home without leaving an address.

An arrest warrant was accordingly issued, indicating that the trial

could take place at any time, even if the applicant was not present.

9. The court, composed of Judges Metzener, Becht-Gutmann and

Memminger, sat from 10 to 17 May 1989 in the applicant's absence. He

was arrested on 16 May 1989 and on 17 May attended court for the

delivery of the judgment, whereby he was sentenced to two and a half

years' imprisonment and fined five hundred Swiss francs for fraud and

attempted fraud both in the exercise of an occupation (gewerbsmäßiger

Betrug), negligent bankruptcy and failure to keep accounts.

B. The application for a retrial

10. The applicant immediately sought a retrial (see paragraph 24

below). The Criminal Court allowed his request and decided accordingly

not to provide a written statement of reasons for its judgment given

in absentia (Kontumazurteil). It then commenced proceedings under the

ordinary procedure and set down a new trial for 30 October 1989.

11. On discovering that the composition of the Criminal Court would

be identical to that of the court that had convicted him in absentia,

on 29 June 1989 Mr Thomann lodged an application (Ausstandsbegehren

wegen Befangenheit) challenging its three members. On 22 August the

challenge was dismissed by the same three judges.

On an appeal (Beschwerde) by the applicant, the Court of Appeal

(Apellationsgericht) of the canton set aside that decision on

5 October 1989 and directed that the Criminal Court rule on the

applicant's challenge without the judges concerned being present. The

court, composed of Judges Kunz, Stephenson and Stamm, dismissed the

challenge on 25 October.

12. Relying on Article 58 of the Federal Constitution and Article 6

para. 1 of the Convention (art. 6-1), the applicant lodged a new appeal

(Beschwerde) with the cantonal Court of Appeal, which dismissed it on

14 November 1989.

The Court of Appeal took the view that the decision to allow

a retrial under Article 267 para. 2 of the Code of Criminal Procedure

(see paragraph 24 below) was not an avenue of appeal in the strict

sense, but a decision to rehear the case (Restitution), whose sole

effect was to set aside a judgment given in absentia and to open a

trial under the ordinary procedure (gewöhnliches Verfahren), which

would result in a new judgment replacing the earlier one. In the

absence of statutory provisions on that point, the practice was for the

judge who had given the first judgment to hear the application for a

retrial and to sit in the new trial under the ordinary procedure. The

explanation of this practice was that the retrial did not entail the

exercise of functions that were different from those exercised by the

first judge or any criticism of his decision. Its sole purpose was to

supplement the facts on which the first judgment had been based. In

those circumstances, it could hardly be contended that there was a risk

of a lack of impartiality on the part of such a judge when he retried

the case.

The Court of Appeal considered in addition that judges giving

judgment in absentia were perfectly well aware that their decisions

were open to an application for a retrial. In the case in question the

judgment appealed had been given by a panel of three judges - a

circumstance which in itself reduced the risk of breaches of the duty

of impartiality - who had, moreover, agreed to set aside their own

decision, thus showing their opinion that Mr Thomann should not suffer

as a result of his absence from the first trial.

13. On 2 May 1990 the Federal Court dismissed the applicant's

public-law appeal (staatsrechtliche Beschwerde).

The Federal Court referred to its relevant case-law and

observed, inter alia, that the members of a panel of three judges did

not lose their impartiality merely because they had already given

judgment in absentia in the same case, provided that the outcome of the

case appeared to remain open and did not give the impression of being

predetermined (Anschein der Vorbestimmtheit). To establish whether

this was in fact the case, it was necessary to have regard to the

factual and the procedural circumstances of the two trials.

Given the importance of the presence of the defendant in person

before a criminal court, it could never be ruled out that a case heard

in the absence of the accused might have reached a different conclusion

if he had been present at the trial. Thus the cantonal Codes of

Criminal Procedure which allowed trial in absentia all empowered a

person convicted in such proceedings to seek the reopening of the trial

under the ordinary procedure. In contrast to an appeal, the purpose

of this remedy was not to conduct a review (Überprüfung) of the first

judgment. It took the case back to the trial stage so that it could

be entirely reheard at a new trial resulting in a new judgment.

Admittedly the judges had to deal with the same issues, namely

the accused's guilt and the appropriate sentence. However, as the

ordinary procedure made it possible to carry out certain steps, such

as examination and cross-examination, which the accused's absence had

precluded, the case was wholly reconsidered. Its outcome was therefore

open, as the court might very well arrive at a different conclusion

from its earlier decision. The contrary view expressed by Mr Thomann

on this point was based solely on his subjective impressions which,

according to the case-law, could not be taken into account. The

decisions that he invoked were irrelevant because they concerned an

issue unrelated to the case before the court, namely the concurrent

exercise of different functions, in particular that of trial judge and

investigating judge.

Moreover, acceptance of the applicant's argument would invite

abuse because in the cantons where an application for a retrial was not

subject to objective conditions, it would be sufficient for an accused

to fail to appear for trial where he wished to have a judge of whom he

did not approve removed. He would therefore be placed at an advantage

in relation to an accused who did appear. It would also cause delays

in the proceedings, which would be aggravated by the fact that on each

occasion new judges would have to study the case.

C. The retrial under the ordinary procedure

14. The retrial took place from 26 September to 3 October 1990 in

Basel-Stadt Criminal Court, composed of Judges Metzener, Becht-Gutmann

and Memminger; the court took evidence from the applicant, who was

assisted by an officially appointed lawyer, and from several witnesses.

On 3 October Mr Thomann was sentenced to two years and three months'

imprisonment and fined five hundred Swiss francs for fraud and

attempted fraud in the exercise of an occupation, negligent bankruptcy

and failure to keep accounts.

15. On 11 July 1991 the cantonal Court of Appeal acquitted

Mr Thomann on certain counts relating to the fraud charge and reduced

his prison sentence to two years' imprisonment.

On 9 December 1992 the Federal Court dismissed the applicant's

public-law appeal against that judgment.

II. The relevant cantonal law

A. Ordinary procedure

16. An accused who appears for trial is first questioned as to his

personal circumstances and then allowed to make a short statement on

the indictment. The President of the Court then examines him in detail

on the charges brought against him (Article 178 of the Basel-Stadt Code

of Criminal Procedure (Strafprozeßordnung)).

17. The accused may be confronted with witnesses (Article 179) and

call other witnesses (Article 181). After the prosecuting authority

has made its submissions and any victim that may be participating in

the proceedings has made a statement, the accused may put the defence

case; he always has the last word, after the prosecutor has had an

opportunity to reply (Articles 185 and 186).

18. With the exception of the prosecuting authority, the parties

to criminal proceedings who have an interest in doing so may appeal

against the first-instance decision, in which case the Court of Appeal

rehears the whole case (second sentence of Article 236).

B. Procedure in proceedings conducted in absentia

19. In so far as possible, the preliminary investigation of a

suspect who is absent must be conducted with the same degree of

thoroughness as if he were present. In particular, witnesses with

relevant testimony must be heard (Article 260).

20. A person who is absent who has not been heard on the charges

brought against him may be committed for trial (öffentliche Anklage)

only if he has not been heard through his own fault and if, despite his

absence, it appears that the trial will result in a safe verdict

(Article 261 para. 1).

21. Where a person who is absent is committed for trial or a person

who is summoned to appear fails to do so without a valid excuse, the

President of the criminal court (Strafgerichtspräsident) orders that

the trial is to proceed in absentia (Kontumazialverhandlung). This is

indicated in the documents relating to the search and inquiry measures

taken to find the person concerned (Article 262 para. 1).

22. If the accused cannot be brought to the hearing, the relevant

documents of the investigation file are given to the members of the

court or are read out during the trial. The court gives judgment on

the basis of the file, after having heard the parties who are present

(Article 263 para. 1). The President may, of his own motion or at the

request of a party, order that evidence be taken from witnesses,

experts or any other persons (Article 263 para. 2).

23. If there is insufficient evidence to secure the accused's

conviction, the proceedings are stayed (Article 264 para. 1). On the

other hand, where the court convicts the accused, it must in its

judgment given in absentia (Kontumazurteil) determine the measures that

are to be taken as soon as the accused is arrested. The judgment must,

in so far as possible, be executed immediately (Article 264 para. 2).

24. A person convicted in absentia is formally notified thereof as

soon as he is brought before the relevant court or appears of his own

free will (Article 267 para. 1). He can apply for a retrial (Revision

des Verfahrens) in the ten days following notification (Article 267

para. 2). The application will only succeed if he shows that he did

not receive the summons or that, through no fault of his own, he was

prevented from appearing (Article 267 para. 3). If the application is

allowed, the case is retried under the ordinary procedure and a new

judgment is given (Article 267 para. 4); otherwise, or when no

application for a retrial is made, the judgment given in absentia

becomes final (Article 267 para. 5).

PROCEEDINGS BEFORE THE COMMISSION

25. In his application (no. 17602/91) lodged with the Commission

on 5 December 1990, Mr Thomann complained that he had been convicted

on 3 October 1990 by a court that was not impartial for the purposes

of Article 6 para. 1 of the Convention (art. 6-1).

26. The Commission declared the application admissible on

5 September 1994. In its report of 2 March 1995 (Article 31)

(art. 31), it expressed the opinion, by twenty votes to four, that

there had been no violation of Article 6 para. 1 (art. 6-1). The full

text of the Commission's opinion and of the two dissenting opinions

contained in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION

27. The applicant complained of a breach of Article 6 para. 1 of

the Convention (art. 6-1), which, in so far as is relevant to the

present case, reads as follows:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair ... hearing ... by an ...

impartial tribunal ..."

Relying, inter alia, on the judgments of De Cubber v. Belgium

of 26 October 1984 (Series A no. 86) and Padovani v. Italy of

26 February 1993 (Series A no. 257-B), he contended that the criminal

court that had tried him on 3 October 1990 could not be regarded as

impartial because it had been composed of judges who had already

convicted him in absentia on 17 May 1989. Even before he appeared

before them at the retrial, they had therefore already formed their

opinion as to his guilt. This had been all the more prejudicial to him

as the facts of the case were largely uncontested, it being essentially

the assessment of their gravity that was in dispute. The retrial had

thus been conducted without due regard to the importance to be attached

to the impartiality of a tribunal and to appearances in this field,

and, taken as a whole, had therefore been merely a purely formal

repetition of the earlier proceedings.

28. The Government maintained that in giving judgment in absentia

the judges had known perfectly well that the grounds for their decision

had been incomplete. Accordingly, by allowing the applicant's

application for a retrial (see paragraph 10 above) and by taking

evidence from him and from several witnesses during the retrial

proceedings, they had afforded Mr Thomann, as soon as he had

reappeared, an entirely new trial, with the result that they had even

reduced the sentence initially imposed (see paragraph 14 above). That

proved that they had indeed remained impartial.

In addition if the criminal court for the retrial had had to

be composed differently, the applicant would have been placed at an

advantage in relation to defendants who complied with their summons to

appear. He would have had the benefit of an additional procedure

besides the other appeals lodged by him in the cantonal Court of Appeal

and the Federal Court (see paragraph 15 above). Moreover, the

applicant had been assisted by a lawyer throughout the proceedings that

followed his application for a retrial being allowed (see paragraph 10

above).

29. The Commission subscribed in substance to the Government's

view.

30. The Court recalls that, when the impartiality of a tribunal for

the purposes of Article 6 para. 1 (art. 6-1) is being determined,

regard must be had not only to the personal conviction and behaviour

of a particular judge in a given case - the subjective approach - but

also to whether it afforded sufficient guarantees to exclude any

legitimate doubt in this respect (see, among other authorities, the

Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and

Decisions 1996-II, p. 356, para. 31).

31. As regards the subjective aspect of such impartiality, the

Court notes that there was nothing to indicate in the present case any

prejudice or bias on the part of Judges Metzener, Becht-Gutmann and

Memminger and that moreover the applicant did not level any criticism

at them in this respect. It cannot but presume their personal

impartiality (see the Bulut judgment cited above, p. 356, para. 32).

There thus remains the objective test.

32. In this connection the Court observes that the instant case

does not concern the successive exercise of different judicial

functions, but judges who sat twice in the same capacity.

33. In its judgments in the cases of Ringeisen v. Austria and

Diennet v. France, the Court held that "it cannot be stated as a

general rule resulting from the obligation to be impartial that a

superior court which sets aside an administrative or judicial decision

is bound to send the case back to a different jurisdictional authority

or to a differently composed branch of that authority". The Court

observed that "no ground for legitimate suspicion can be discerned in

the fact that" judges who "had taken part in the first decision" also

participate in the second (see the judgments of respectively

16 July 1971, Series A no. 13, p. 40, para. 97, and 26 September 1995,

Series A no. 325-A, p. 17, para. 38).

34. The applicant argued that this case-law concerned the situation

of judges to whom a case was remitted after a decision had been set

aside or quashed by a higher court. In such circumstances they no

longer had a "wide margin of appreciation", which made it less shocking

that they should retry the case. In the present case, on the other

hand, the members of the Criminal Court had retained complete freedom

of decision in the retrial. In addition, they had all three already

convicted Mr Thomann in absentia, whereas in the Ringeisen and Diennet

cases, only some of the members of the court to which the case had been

remitted had taken part in the first examination of the case.

35. The Court does not find these arguments persuasive.

As the Federal Court explained (see paragraph 13 above), judges

who retry in the defendant's presence a case that they have first had

to try in absentia on the basis of the evidence that they had available

to them at the time are in no way bound by their first decision. They

undertake a fresh consideration of the whole case; all the issues

raised by the case remain open and this time are examined in

adversarial proceedings with the benefit of the more comprehensive

information that may be obtained from the appearance of the defendant

in person. That is in fact what happened in the present case.

Such a situation is not sufficient to cast doubt on the

impartiality of the judges in question.

36. Furthermore, if a court had to alter its composition each time

that it accepted an application for a retrial from a person who had

been convicted in his absence, such persons would be placed at an

advantage in relation to defendants who appeared at the opening of

their trial, because this would enable the former to obtain a second

hearing of their case by different judges at the same level of

jurisdiction. In addition, it would contribute to slowing down the

work of the courts as it would force a larger number of judges to

examine the same file, and that would scarcely be compatible with

conducting proceedings within a "reasonable time".

37. In conclusion, there has been no violation of Article 6 para. 1

of the Convention (art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 6 para. 1 of

the Convention (art. 6-1).

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

hearing in the Human Rights Building, Strasbourg, on 10 June 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar