Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 27338/95
by F. S .J. and 22 others
against Switzerland
The European Commission of Human Rights sitting in private on
24 February 1997, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 April 1995 by
F. S. J. and 22 others against Switzerland and registered on 16 May
1995 under file No. 27338/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The application has been introduced by 23 applicants, all of whom
are German citizens. Before the Commission the applicants are
represented by Mr M. Günther, a lawyer practising at Hilden in Germany.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
On 17 September 1990 a demonstration took place at the Leibstadt
nuclear power plant, located in Switzerland near the Swiss-German
border. The demonstrators came mainly from Switzerland and Germany.
Certain persons entered the premises and climbed on to the cooling
tower. The power plant company filed a criminal complaint alleging
trespass (Hausfriedensbruch) and causing damage to objects
(Sachbeschädigung).
Criminal proceedings were instituted against the applicants who
had participated in this demonstration. The applicants were
represented by Mr M. Günther who also represented the applicants in
letters rogatory proceedings in Germany.
By penal order (Strafbefehl) of 2 July 1992 the Zurzach District
Office (Bezirksamt) sentenced each applicant to 30 days' imprisonment,
suspended on probation, and a fine of 300 Swiss Francs (CHF) on account
of causing damage to objects (Sachbeschädigung) and alleging trespass
(Hausfriedensbruch). The penal orders were served on the applicants'
representative in Germany. Upon his objection, proceedings were
referred to the Zurzach District Court (Bezirksgericht).
By letter of 30 November 1992 the District Court's President
informed the applicants' representative that he could not represent his
clients as only licensed (zugelassen) lawyers could practise in the
Canton of Aargau. When the applicants' representative expressed his
disagreement, the District Court on 19 April 1993 issued a decision not
to admit the applicants' lawyer at the trial. The applicants were
given a time-limit of 30 days to find another lawyer.
The applicants and their lawyer unsuccessfully appealed against
this decision to the Court of Appeal (Obergericht) of the Canton of
Aargau.
Their public law appeal (staatsrechtliche Beschwerde) was
dismissed by the Federal Court (Bundesgericht) on 22 August 1994, the
decision being served on 15 November 1994.
In its decision the Federal Court first dealt with the
applicants' argument that even family members and other untrained
persons were allowed to act as representative in criminal proceedings.
However, the Court noted that such representation was justified on
personal or financial grounds.
The Federal Court then dealt with the applicants' complaint that
Article 6 para. 3 (c) of the Convention enshrines the right freely to
choose the legal representative (p. 12-15):<Translation>
"The text of this provision does not directly answer the
question whether the accused may choose any particular third
person as defence counsel, or whether he is bound by the
respective licensing conditions for lawyers. A restrictive
interpretation of the right to choose in this provision is called
for already on practical grounds: if an accused could in
principle choose any person whom he found suitable as defence
counsel, this would as a result invalidate the limitations
regularly envisaged under national law in matters of criminal
procedure. Any third party (and also any professionals) could
then, by invoking the accused's right to a free choice, bring
about his right to practise as defence counsel in a particular
criminal case without having to comply with the requirements
applicable to lawyers. This cannot be the purpose of the
Convention provision mentioned ...
The Cantonal legislator may generally limit professional
advocacy to those lawyers who have demonstrated the required
knowledge of Swiss law by means of a State examination in the
particular Canton or (on the basis of existing domestic rules on
freedom of movement) in a third Canton and whose residence in
Switzerland has familiarised them with the local judicial
customs. Such licensing restrictions can easily be justified in
the interests of justice at issue and on the grounds of economic
order. A refusal to license foreign lawyers is not the sole or
primary aim of a policy intended to protect the profession. On
the one hand, foreign lawyers have as a rule only a limited
knowledge of Swiss and cantonal law and are not familiar with the
local circumstances and the forensic customs. Furthermore, there
are practical reasons for refusing a licence (i.e. enforcement
of professional regulations; possibility of disciplinary
supervision: address for serving mail; practical difficulties
when dealing with the court, for instance when deciding on dates
or authorising consultation of the case-file). It makes no
difference whether a foreign lawyer wants to act on a regular
basis in Switzerland or in a particular Canton, or whether, as
in the present case, he only wants to represent foreign clients
before a Swiss court in particular proceedings. The grounds
mentioned have sufficient weight to exclude generally even
individual exceptions. Nor is the legitimacy of this point of
view called in question by the fact that (on the basis of S. 5
of the Transitional Provisions of the Federal Constitution),
lawyers from other Cantons may appear before a court, as opposed
to foreign lawyers (or those with foreign diplomas). Thus, the
diploma obtained in another Canton will guarantee at the outset
knowledge of the (unified) Swiss law, inter alia, the Penal Code.
One can also expect a certain minimal familiarity with procedures
of other Cantons which may differ from each other but are
influenced by a common tradition. As a rule, this is not the
case with lawyers with foreign diplomas working abroad."
The criminal proceedings are still pending before the Zurzach
District Court.
B. Relevant domestic law
S. 64 para. 3 of the Federal Constitution (Bundesverfassung)
provides that "the organisation of the courts (and) the court procedure
... shall remain ... with the Cantons".
According to S. 5 of the Transitional Provisions (Übergangs-
bestimmungen) of the Federal Constitution, persons of liberal
professions (wissenschaftliche Berufe) who have obtained a diploma to
practise may do so in the whole of the Swiss Federation.
S. 61 para. 1 of the Code of Criminal Procedure (Strafprozess-
ordnung) of the Canton of Aargau provides that only licensed lawyers
(patentierte Anwälte) may act as defence counsel. Defence in court of
an accused is also possible, by a person's legal representative, by his
spouse, a parent, or a child who has come of age.
In order for a lawyer to obtain a licence for professional
practice, the Bar Act (Anwaltsgesetz) of the Canton Aargau provides
that a lawyer must have obtained a diploma (Fähigkeitsausweis), either
in the Canton of Aargau or in another Canton.
COMPLAINTS
The applicants complain under Article 6 para. 3 (c) of the
Convention that Mr Günther was not admitted as the applicants' freely
chosen defence counsel at the trial. It is pointed out that the Swiss
authorities never criticised the professional abilities of Mr Günther,
and that indeed he was accepted by the prosecuting authorities at the
outset of the investigations.
The applicants chose Mr Günther as they all live in Germany and
can contact him more easily than a lawyer in Switzerland. Moreover,
it appeared necessary to employ a German lawyer familiar with German
law as proceedings also took place via letters rogatory in Germany.
The applicants may also be prosecuted in Germany for a similar offence.
The applicants feared that lawyers in the comparatively small
Canton of Aargau would not be sufficiently distant from the local
courts to obtain the applicants' confidence. The applicants point out
that a foreign lawyer who is related to an accused (spouse, parent)
would not, according to Swiss legislation, be excluded from
representation.
The applicants submit that conditions prevailing under Article 6
para. 3 (c) in the case of officially appointed lawyers, in particular
the interests of justice, cannot apply in the case of a freely chosen
lawyer.
THE LAW
The applicants complain that Mr Günther was not admitted to the
trial as the applicants' freely chosen defence counsel. They rely on
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention which states:
"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 ..."
The Commission notes that the proceedings against the applicants
are still pending, and recalls that, in principle, it can only assess
the fairness of criminal proceedings when it is able to consider them
in their entirety (cf. No. 9000/80, Dec. 11.3.82, D.R. 28, p. 127).
Moreover, an acquittal will normally be regarded as rectifying
procedural errors alleged to have violated the Convention (cf.
No. 8083/77, Dec. 13.3.80, D.R. 19, p. 223). In the present case, the
Commission considers that, until the relevant proceedings have
finished, when it may become apparent that the applicants cannot claim
to be victims of a violation, their complaint that Mr Günther was not
admitted to the trial as their freely chosen defence counsel is
premature.
In any event, the Commission, even assuming that the applicants'
complaint could already be assessed at this early stage in the
proceedings (cf. Nos 8603/79, 8722/79, 8723/79 and 8729/79 joined,
Dec. 18.12.80, D.R. 22, p. 216), recalls that, notwithstanding the
importance of a relationship of confidence between lawyer and client,
the right under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
to be defended by counsel of one's own choosing cannot be considered
to be absolute and is necessarily subject to certain limitations.
Thus, while national courts must certainly have regard to the
defendant's wishes, they may override those wishes when there are
relevant and sufficient grounds for holding that this is necessary in
the interests of justice (see Eur. Court HR, Croissant v. Germany
judgment of 25 September 1992, Series A no. 237-B, p. 33, para. 29).
In the present case, the applicants were in principle free to
choose any lawyer as defence counsel provided he had obtained a diploma
in Switzerland. The Swiss courts refused to admit Mr Günther who
resided in Germany and had not obtained a diploma in Switzerland. The
Federal Court, in its decision of 22 August 1994, found that foreign
lawyers had, as a rule, only a limited knowledge of Swiss and cantonal
law and were not familiar with the local circumstances and the forensic
customs. There were furthermore practical reasons for this solution,
such as the enforcement of professional regulations; the possibility
of disciplinary supervision; enabling access to the case-file; and
discussing the schedule of a trial. Lawyers from other Cantons had at
least knowledge of the unified Swiss law, such as the Penal Code, and
a certain minimal familiarity with Swiss cantonal procedures. Finally,
personal links and financial considerations justified the exception
that other individuals, such as family members, could represent an
accused in individual cases.
In the Commission's opinion, the Swiss courts gave relevant and
sufficient reasons when rejecting the applicants' request for admitting
Mr Günther as their defence counsel. The Swiss courts' refusal was
not, therefore, incompatible with Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER G.H. THUNE
Secretary Acting President
to the Commission of the Commission