IMBRIOSCIA v. SWITZERLAND - 13972/88 [1993] ECHR 56 (24 November 1993)

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 (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 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 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. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII