ITEMID: 001-57572
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF SCHENK v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-2;Not necessary to examine Art. 8
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos;B. Walsh
TEXT: 8. Mr. Pierre Schenk, a Swiss national born in 1912, resides in Tartegnin (Canton of Vaud). He is a company director.
In 1947, he married Josette P, who was born in 1927. In 1972, serious disagreements arose between them, and they separated the following year. In 1974, the applicant filed a petition for divorce, which was finally granted on 10 December 1981 after an agreement between the parties.
9. On 28 February 1981, Mr. Schenk went to an advertising agency in Annemasse (Haute-Savoie), where, under the assumed name of Pierre Rochat, with an address in Lyons, he gave instructions for the following advertisement to be published:
"Wanted. Former member of the Foreign Legion or similar for occasional assignments; offer with telephone number, address and curriculum vitae to RTZ 81 poste restante CH Basle 2."
From the replies to this advertisement the applicant selected a Mr. Pauty, whom he met on several occasions and paid to carry out a variety of assignments, including one in Haiti in May 1981.
10. At the beginning of June 1981, the applicant underwent an operation in hospital.
Mr. Pauty arrived in Switzerland on 12 June and telephoned Mrs. Schenk on the 18th. He visited her the following day and told her that he had been commissioned by her husband to kill her. After considering the possibility of killing Mr. Schenk or leading him to believe that his wife was dead so that Mr. Pauty could collect his fee, they went together to the investigating judge of the Canton of Vaud on 20 June 1981.
11. On 20 June 1981, the investigating judge interviewed Mr. Pauty and then instructed Detective Inspector Rochat and Detective Inspector Messerli of the Vaud police to interrogate him more thoroughly, which they did on the same day. The judge interviewed Mrs. Schenk "orally", in other words her statements were not taken down in writing.
The following day, the Vaud police took a statement from Mr. Pauty, for the second time, and also one from Mrs. Schenk.
12. On 22 June, the investigating judge issued letters rogatory to the French authorities. He asked that, in order to further an investigation into an attempted murder by a person or persons unknown, a number of inquiries should be made and that Inspector Messerli should be authorised to take part in them. The judge noted in particular:
"... it is necessary to discover what Mr. Pauty was doing in Paris from March to June 1981 and to obtain information regarding his character. It is also necessary to ascertain whether it is true that Mr. Pauty saw Schenk, whom he claims to have met at the Grand Hôtel, and with whom he allegedly went to buy an air ticket for Haiti."
On 23 June, the Crime Squad of the Paris Criminal Investigation Department formally proceeded to comply with the letters rogatory, and Mr. Pauty was accordingly interviewed the following day in the presence of Inspector Messerli. Mr. Pauty said, inter alia:
"RTZ 81, that is to say Mr. Pierre Schenk, will certainly contact me before long to ask for details of the murder of his wife, Josette Schenk. He is supposed to send me or bring me the agreed amount of $40,000.
You asked me to come here and I would now ask you to give me instructions as to how I should act when Mr. Schenk contacts me."
13. Mr. Pauty was expecting the applicant to telephone him and he therefore set up a cassette recorder at his mother’s home at Houilles near Paris and connected it by microphone to the second earphone of the telephone receiver.
On the morning of 26 June, at approximately 9.30 a.m., Mr. Schenk telephoned Mr. Pauty from a kiosk at Saint-Loup (Switzerland). Mr. Pauty recorded the conversation.
At about 10 a.m., Mr. Pauty telephoned the Crime Squad and was put through to Mr. Messerli, who had planned to return to Lausanne that same day by the midday train. Mr. Pauty played the recording back to the inspector and asked him whether he would like to have the cassette. Mr. Messerli said that he would and informed his French colleagues who were present of this. Approximately one hour later, Mr. Pauty arrived at the Crime Squad’s offices and handed the cassette over to Mr. Messerli.
14. Mr. Messerli, who on the previous day had telephoned the investigating judge of the Canton of Vaud, took the cassette back to Lausanne the same evening. On 30 June, he played the recording back to Mrs. Schenk so that she could identify her husband’s voice. On the same day, the judge issued a warrant for the applicant’s arrest.
Mr. Schenk was arrested the next day, 1 July. Inspector Rochat and Inspector Messerli were instructed by the judge to arrange a confrontation between Mr. Pauty and Mr. Schenk, and they played back the recording in the latter’s presence. In addition, the judge visited the police station, where he interviewed and charged the applicant; he also met the applicant’s lawyer, who had been authorised to see his client.
15. On 2 July, the inspectors reported to the judge the results of the confrontation between Mr. Pauty and Mr. Schenk. They handed over to him the cassette, which was placed in an envelope and added to the file; it subsequently remained there except when removed for examination by an expert.
The judge ordered the applicant’s release. He had a transcript made of the cassette and added it to the file on 12 July. On 6 August 1981, the inspectors drew up a detailed report on the case for him.
16. On 14 August, the file was sent to the applicant’s lawyer, who returned it on the same day. On 11 September, he requested a full investigation of Mr. Pauty and an expert examination of the cassette, as in his view the recording was not a faithful and complete reproduction of the telephone conversation.
On 23 September, the judge directed that the cassette should be handed over to SK, the managing director of a tape-recorder factory, who carried out the expert examination with J-CS, one of his colleagues. At SK’s request, the equipment that had been used to make the recording, which had been seized at Houilles on 1 October by the French police in the presence of Mr. Messerli, was also made available to him. He returned the cassette to the judge on 29 October and submitted his report on 12 November.
17. On 3 February 1982, the investigating judge issued an order discharging the applicant. The order read as follows:
"...
... Prima facie Mr. Pauty’s accusations are supported by a number of facts.
It is, for instance, strange that Pierre Schenk carefully concealed his true identity from Richard Pauty and tried to cover his tracks (advertisement for a legionnaire in a French newspaper, use of an assumed name, use of a PO box in Basle, the fact that it was always Schenk who telephoned Pauty, etc.).
...
It is clear that the recording of the telephone conversation of 26 June 1981 between Pierre Schenk and Richard Pauty has been neither shortened nor tampered with.
It appears to confirm Richard Pauty’s accusations.
Nevertheless, careful listening raises some doubt as to whether the participants completely understood each other. Pierre Schenk, in particular, gives the impression that he did not understand very well what Richard Pauty was implying.
In the light of Richard Pauty’s character, his past and his explanations and statements to Josette Schenk, his statements cannot be relied on with absolute confidence.
...
In conclusion, Richard Pauty’s accusations and the evidence gathered appear insufficient to commit Pierre Schenk for trial.
..."
18. On 23 February, the prosecutor appealed against the investigating judge’s decision, and in response to this appeal Mr. Schenk filed a statement of defence on 8 March. In it he argued that the central figure in the case was not him but Mr. Pauty, who, according to information obtained, "[had] been a member of the Foreign Legion, a chief steward in the Navy, a stunt man, a bodyguard, an informer working for the Italian police, a circus employee and out of work". He supported the prosecutor’s application to have the recording played, which in no way incriminated him. In his view, Mr. Pauty had been acting merely as an agent provocateur of the police on the day he made the recording.
On 21 April 1982, the Indictment Division of the Vaud Cantonal Court committed Mr. Schenk for trial at the Rolle District Criminal Court on a charge of attempted incitement to murder. On 10 June, it remanded the applicant in custody, but Mr. Schenk appealed and was released on 22 June.
19. The proceedings at first instance at the Rolle District Criminal Court lasted from 9 to 13 August 1982. The court was composed of a professional judge, who presided, two lay judges and six jurors. The defendant was assisted by his lawyer, Mr. Luthy.
20. At the outset the applicant made an interlocutory application to have the recording removed from the file. The court dismissed this application on the same day on the following grounds:
"...
The file contains a recording whose removal is sought by the defendant.
It was made by Richard Pauty, a strong-arm man in the defendant’s employ.
Pauty stated that he had made the recording in the following circumstances:
‘I put the cassette in my recorder... Using the original microphone, I connected it up to the second earphone of the telephone in my mother’s flat. I used brown self-adhesive tape to attach the microphone to the earphone...’.
The recording was not authorised or ordered by the competent authority.
Accordingly, by recording Pierre Schenk without his knowledge, Pauty may have committed an offence under Art. 179 ter CC [the Swiss Criminal Code].
However, this is not sufficient ground for ordering the removal of the recording from the file.
Art. 179 ter CC is applicable only where a complaint has been lodged, and Pierre Schenk has made no such complaint.
Thus Pauty would in any event no longer be liable to punishment in this respect.
In any case, the content of the recording could have been included in the file, either because the investigating judge had had Pauty’s telephone tapped or simply because it would be sufficient to take evidence from Pauty regarding the content of the recording.
Acceptance of the defendant’s argument would make it necessary to exclude a large proportion of evidence in criminal proceedings.
For instance, a firearm used without the appropriate permit would have to be held inadmissible as evidence.
That is why procedural law confers on the courts the power to assess evidence and its weight and probative value.
This case does not involve unlawful evidence within the meaning of the European Convention.
Moreover, it is interesting to note that the defendant appears to have shifted his ground during the police inquiry.
On page 5 of the pleadings that he submitted to the Indictment Division, counsel for the defence states as follows:
‘The public prosecutor seeks to have played back the telephone conversation recorded on 26 June 1981. He is right to do so and we wish to support this application. He considers that this recording constitutes decisive evidence against my client. He is completely mistaken in this respect.’
The defendant was right to consider at the time that it should be left to the court to assess the evidence in the file."
21. Still on 9 August 1982, the presiding judge directed that the recording should be played back. It was played back in the courtroom in the presence of the members of the court, the parties and the public on a cassette recorder with two loudspeakers installed by a specialist firm.
22. The same day, the court heard evidence from all the witnesses except HR, who failed to appear. Three of the witnesses had been subpoenaed by the court of its own motion (Mr. Pauty, Mrs. Schenk and HR). Three other witnesses had been called at the request of the defence (RF, JM-Z and GG). Inspector Messerli did not give evidence because he was not called either by the court or at the request of the public prosecutor or the defence.
In addition, J-CS, who had worked with the expert SK, gave evidence in the latter’s stead on 9 and 10 August 1982.
The statements made by these witnesses were not taken down.
23. The presiding judge read out various documents: the order of the Indictment Division committing the applicant for trial; the police and intelligence reports in their entirety or in part; various documents produced by Mr. Schenk or cited by either the prosecution or the defence (Article 341, first paragraph, of the Vaud Code of Criminal Procedure); and the statements made during the police inquiry by HR, who was not present, but not those of the witnesses who had given evidence at the hearing (Article 341, second paragraph).
24. Under the Vaud Code of Criminal Procedure, the file is made available to the judges and jurors as soon as the trial commences. The judges, however, may in exceptional circumstances have access to it earlier (Article 333), but not the jurors (Article 386).
25. The Rolle District Criminal Court delivered its judgment on 13 August 1982. It found Mr. Schenk guilty of attempted incitement to murder (Article 24 para. 2 of the Criminal Code) and sentenced him to ten years’ imprisonment, the minimum statutory sentence. It ordered his immediate arrest.
26. The judgment contains the following account of the facts:
"On 28 February 1981, Pierre Schenk went to an advertising agency in Annemasse, where, under the assumed name of Pierre Rochat, with an address in Lyons, he gave instructions for the following advertisement to be placed in three French newspapers, Le Provençal, Le Progrès de Lyon, and France-Soir:
‘Wanted. Former member of the Foreign Legion or similar for occasional assignments; offer with telephone number, address and curriculum vitae to RTZ 81 poste restante CH Basle 2.’
The agency employee warned him that the newspapers might not accept such an advertisement; and, in fact, the advertisement appeared only in France-Soir. Pierre Schenk paid the agency 1,520.57 FF. In reply to the advertisement he received several offers and selected two of them, one from a Richard Pauty, living at Houilles, near Paris, and another from someone whose first name was Robert. After meeting Robert, Schenk decided against using him. He therefore chose Pauty, with whom he arranged at least two meetings in March and April 1981, at the Grand-Hôtel in Paris, which is not the hotel at which the defendant usually stays. On this point he explained at the hearing that he did not want Pauty to know where he lived in Paris. He introduced himself as a member of a very powerful organisation based in Germany. He told Pauty that he was the organisation’s representative in France. He also said that Pauty would be under surveillance during his assignments.
The first assignment given to Richard Pauty concerned a certain [HR]. According to Richard Pauty, the mission - for which he was promised payment of 40,000 dollars plus expenses - was to kill [HR]. According to Pierre Schenk, Pauty was supposed to give [HR] a beating ‘that he would remember for a long time’. He intended only that [HR] should receive several punches to the face and a black eye. The defendant stated that he had taken these steps ‘in order to intimidate [HR], or rather, to punish him’.
The Court has not been able to establish with certainty the real assignment given to Pauty. ...
...
As nothing concrete appeared to come of this, the defendant gave Pauty another assignment. He explains that he realised that Pauty was not the sort of strong-arm man that he had hoped for. Pauty had told him that he had been a mercenary in the CSTM (Compagnie spéciale des troupes métropolitaines), then a ‘bouncer’, and had smuggled cars to Italy. Pierre Schenk explained that he had found Pauty quick-witted and cunning and had therefore decided that he could give him a second assignment, consisting in obtaining information about Josette Schenk. According to the defendant’s version of events, Pauty was supposed to provide him with information on three matters:
(a) the amount that Mrs. Schenk had inherited from her father;
(b) whether she was having a house built in Haiti; and
(c) whether she had any funds in that country, perhaps as a result of a relationship he knew nothing about.
A fourth matter also interested him, namely whether his wife had had any contact with the drugs world.
According to Pauty, he was supposed to go to Haiti, murder Mrs. Schenk, for 40,000 dollars, covering his tracks by simulating a rape, a burglary or an accident. It is known that at the end of April 1981 Schenk went with Pauty to a Paris travel agency. For 8,667 FF, he bought him a fortnight’s package holiday in Haiti and in addition gave him 4,000 CHF, i.e. approximately 10,000 FF, to cover his expenses. Pauty left for Haiti on 27 April 1981. He went to Port-au-Prince, where Mrs. Schenk spends three-quarters of the year. Pierre Schenk had given Pauty a photograph of his wife so that he could identify her. Josette Schenk left Port-au-Prince on 5 May 1981 and returned to Switzerland. Having established that Josette Schenk was not in Haiti, Pauty completed his stay and returned to France on 11 May, without moreover having obtained any information whatsoever, except for one detail, which was inaccurate - namely that Josette Schenk’s husband was dead. On his return to France, Pauty was contacted by Schenk on a date which has not been established precisely, but which must have been 14 May (according to Schenk) or 15 or 16 May (according to Pauty). Schenk claims that he telephoned Pauty from France. This is possible, although it has not been proved. But neither has it been established that he rang him from Switzerland. During this telephone conversation, Schenk learnt that Pauty had returned empty-handed from Haiti. He then instructed Pauty to come to Switzerland to continue his assignment. According to Pauty, he was supposed to kill Josette Schenk during the week of 12-18 June. According to Schenk, that was precisely the week in which Pauty was not supposed to come to Switzerland, because it was then that Mrs. Schenk’s daughter was expected to give birth. Thereafter, there does not appear to have been any direct contact between Schenk and Pauty until 26 June 1981, when Schenk telephoned Pauty. This conversation will be considered further below. On 24 May 1981, Pauty sent a telegram to RTZ 81, worded as follows: ‘Contact necessary’. At this stage Pauty was totally unaware of RTZ’s real identity. A few days later, on 1 June 1981, when he entered St.-Loup Hospital for an operation and after he had led Pauty to believe that he would be away for two months in the Far East, Schenk sent 3,500 CHF to Pauty in an envelope posted at Eclépens to the address ‘RD poste restante 1003 Lausanne-Gare’. The defendant underwent his operation at the beginning of June. On 12 June, Richard Pauty came to Switzerland and began to look for Mrs. Schenk. He contacted her by telephone on the evening of 18 June, having, he claimed, decided to abandon what he alleges to have been his assignment, i.e. to kill Mrs. Schenk, either because he would have had to wait until RTZ 81’s ostensible return in two months’ time to obtain more money, or because he realised that there was something suspicious about RTZ’s explanations. On 19 June, Pauty met Mrs. Schenk. He explained to her that he had been instructed to kill her. Mrs. Schenk, who was terrified, asked Pauty on whose instructions and has stated that after a certain amount of explanation she realised that the order came from her husband. Pauty then suggested to Mrs. Schenk that she should disappear for a while so that he could collect his fee. Failing that, he proposed killing the defendant. Finally, Pauty and Mrs. Schenk went to the police to tell their story, and on 20 June 1981 the investigation commenced. On 20 June, Pauty was interviewed in Switzerland and on 24 June by the French police. On 26 June 1981, having received the telegram of 24 May, Pierre Schenk rang Pauty from St.-Loup Hospital. Pauty, who knew that RTZ 81, i.e. Pierre Schenk, would call him sooner or later, had put a cassette in a recorder which he had had for about a year and which belonged to his brother. Using the recorder’s original microphone, he connected the apparatus directly to the second earphone of the telephone in his mother’s flat. He attached the microphone to the earphone by means of self-adhesive tape. Schenk called from a telephone kiosk, although he had a telephone in his hospital room. He claims that he used seven one-franc coins for the call, but this fact has not been established. On the tape an unidentified person is heard answering Schenk’s telephone call and putting him on to Pauty. Schenk asks Pauty what he has been doing and the following dialogue ensues:
RP Well, the jo...
PS I was wondering what you were d..., what had become of you.
RP Yes, no, there were one or two small problems and I didn’t, I couldn’t do the job until the 23rd.
PS The 23rd?
RP Yes, Monday 23rd, Mon..., Mon..., I think it was the 23rd.
PS But where did it happen?
RP Well, I went to fetch some friends in Italy because we couldn’t manage to do the, because as you told me there were, the neighbours were always there etc.... I went twice and I was seen twice, so I waited until she left to go to the hospital and we arranged to bump into her car, so that she’d have to stop and talk about the damage and then, well it was like that, but I don’t know because the body, we took the car and we and I took it to near Montreux. I don’t know if it has been discovered yet because I haven’t seen it in the papers.
PS But what are you going to do now?
RP Sorry?
PS What’s going to happen now?
RP Well, now I’m going to do the Paris one, aren’t I?
PS What?
RP I’ll do Paris.
PS No, I mean about work, the job.
RP Well, don’t ask me. It er the job’s done and that’s it.
PS It’s odd the job’s been done and there’s been no news, isn’t it?
RP I haven’t seen it in the papers yet either, but it’s like I said, I hid it, I didn’t just leave it...
PS Right, listen, it’s quite straightforward, I’ll call you in a week’s time.
RP In a week’s time?
PS Will you be there in a week’s time?
RP Yes, I’ll be in Paris, yes.
PS Yes, yes, I... I... I follow you, right?
RP OK.
PS Good, because I... there hasn’t been any news, I haven’t heard anything.
The conversation ends with the usual greetings. Pauty received the call at approximately 9.30 a.m. At 10.00 a.m. he called the Paris Crime Squad, and at around midday, having travelled from Houilles to Paris, he brought the cassette to the inspector in charge of the inquiry. This cassette was examined by an expert, who found that:
1. The tape of the cassette had not been edited by the usual method of cutting and splicing.
2. The characteristics of the recording corresponded exactly to the recorder.
3. The tape did not have any usable traces of other recordings.
4. The background noise on the recording was very loud, which was to be expected, given the type of equipment used and the way the recording was made. But, as a result, it was not possible to state with certainty that it was not a copy.
The expert considered that it was possible that the conversation had first been recorded and that the tape had then been edited, i.e. passages had been removed, the order of the words altered or passages from other recordings added. The resulting tape could then have been copied on the cassette recorder examined. The expert stated further that he had ‘found no evidence’ to suggest that it was such a copy. That did not mean that it was not one, only that the editing would have required a very skilled operator, with sophisticated equipment at his disposal and plenty of time. At the trial the expert further clarified his opinion as follows.
He explained that he had detected four breaks; that he had not been able to prove that there had been a cut; that he was almost sure that no editing could have been carried out, since such editing would have required a day’s work, even if the necessary equipment had been available. The expert noted in addition that in the most favourable circumstances with regard both to the equipment available and to whether a passage was in a position from which it could technically be simply removed, the removal of a passage would have required an hour to an hour and a half’s work. He had not detected any such removal of a passage.
Giving evidence on this recording, the defendant admitted that it was his voice. He stated that he did not remember any reference to a body and that he had the impression that the recording had been shortened.
On the basis of the expert’s findings, the court accepts that the recording which appears in the file is an accurate reproduction of the conversation between the defendant and Pauty on 26 June 1981. It considers that, as there is no evidence that the recording has been tampered with and in view of the short time available to Pauty between the telephone conversation and his handing over of the cassette to the police, the possibility that the recording was edited can be ruled out. Moreover, having regard to the fact that the recording contained the initial and final greetings, the possibility that the beginning or end of the recording was simply removed without any editing does not arise.
On 23 and 26 June 1981, Pauty sent two telegrams to RTZ 81. The first ran: ‘Lausanne OK. Paris OK before 30. Need US d. for cigarettes.’ The second was worded ‘Contract completed. Check Lausanne-Montreux, no proof possible. Awaiting half US d. contract before steps HR Paris.’ Schenk does not seem to have received these telegrams.
court has found that the Schenks, between whom there was an age-gap of some fifteen years, were married in 1947. Until 1969 it does not seem that the couple experienced any particular problems. It is, however, certain that Mrs. Schenk always felt very lonely. In May 1972, whilst Mrs. Schenk was in hospital, an expert, [A], came to discuss with her a draft marriage contract and agreement concerning inheritance rights which Pierre Schenk had had prepared. This draft, which provided for a separation of property, stipulated in substance that Josette Schenk should waive any right to succeed to her husband’s estate on the understanding that on his death she would receive a life interest in a portfolio of securities whose real value was to be at least one and a half million CHF, yielding an annual income of at least 60,000 CHF. It was also provided that if the marriage was dissolved for any reason other than death, Josette Schenk would have a life interest in a portfolio of securities with a real indexed value of one and a half million CHF.
Josette Schenk refused to sign this agreement. In 1973, she sought protective measures. At the end of 1973, she and her husband ceased to live together. Pierre Schenk instituted divorce proceedings in 1974. The spouses saw each other again only at the hearings in those proceedings, which were particularly bitter and lasted more than seven years. In early February 1981, Josette Schenk changed lawyers. Since her new lawyer appeared to favour a final settlement as part of a divorce, the defendant’s lawyer informed him of this and told him what he intended to do to compel the new lawyer to raise the problem with Mrs. Schenk and make it easier to persuade the latter to review her position. On 8 April 1981, counsel for the defendant wrote to him to inform him that he hoped to be able to fix a date for the final hearing before long. In the event, this hearing was held on 10 December 1981, and the divorce decree - which took effect from 2 February 1982 - confirmed an agreement granting, inter alia, the wife the sum of one and a half million CHF in respect of the liquidation of joint assets and an indexed annuity paid in monthly instalments of 4,500 CHF.
The investigation showed that from the beginning of the divorce proceedings Pierre Schenk had doubts as to the faithfulness of his wife and suspected in particular that she had had a relationship prior to and during the early stages of the proceedings with a certain [E].
...
The trial hearing did not reveal any facts other than those which are set out above. The defendant continued to assert his version of events according to which Pauty was instructed to obtain information and confirmed that, as he saw it, Pauty could get the information in any way that suited him, for example by visiting Mrs. Schenk on some pretext and obtaining the information sought ‘either by initiating an intimate relationship or by developing a friendship with her’. In an interview on 1 July 1981 the defendant stated that he had wished to obtain the desired information from Pauty within thirty days if possible. In court he declared that this was not the case, that he had told Pauty that he would be away for a while - so that the latter had plenty of time - and that he had instructed Pauty that he should not come to Lausanne during the week of 12-18 June because Mrs. Schenk’s daughter was due to give birth then. Finally, it had been agreed that Pauty would be paid on Schenk’s ostensible return from abroad on the basis of the information which he provided. For his part, Pauty confirmed that his assignment in Switzerland was to kill Mrs. Schenk and that he had decided to change his plans when he saw that it would be a long while before he received any more money from RTZ 81.
Richard Pauty’s personality is not particularly easy to determine. He was born in 1947 and has had a number of somewhat ill-defined jobs. He has worked as a stunt man and has had various problems with the French civil and military authorities and with the Italian authorities. Legally he is resident in Italy, but he in fact lives at Houilles. It appears that he has occasionally collaborated with the police, particularly the Italian police, on matters related to drugs.
On the basis of the foregoing considerations, the court has, by a majority, reached the conclusion that Pierre Schenk gave to Richard Pauty the assignment of killing Josette Schenk. The court’s view is founded partly on the recording of the telephone conversation of 26 June 1981. Where Pauty states that he was not able to do the job until the 23rd, the defendant twice asks him where it happened, which is a ridiculous question if the job was merely a matter of obtaining information. At the end of a long sentence, spoken all at once without drawing breath and in which reference was made to a body taken in a car to somewhere near Montreux and not having been discovered because there had been no mention in the papers, the defendant does not reply ‘What on earth is all this nonsense?’ or ‘I don’t understand what you’re talking about’. He says and asks twice what is going to happen now. When Pauty confirms that the job has been done, the defendant does not say to him ‘In that case send me your report’, which would have been logical if the assignment had been to obtain information, but says to him, not once but twice, ‘it’s odd the job’s been done and there’s been no news, isn’t it?’. The defendant explained that he wished by this to lead Pauty to believe that his organisation (a non-existent organisation which was supposed to monitor Pauty’s actions) had not told him of it. We know that Pauty’s actions were not monitored. We also know that the ‘organisation’ did not exist and that the defendant, who was in hospital, could not have known at the time whether or not Pauty had contacted Mrs. Schenk. Moreover, at the time, this meant that it was absolutely impossible for the defendant - if the assignment in question was to obtain information - to know whether or not Pauty had carried out the assignment. The defendant’s reply is meaningless unless he knew that the job had not been done, and he could not have known this unless the matter was public knowledge, for example because it had appeared in the press - which Pauty mentions, moreover. This consideration on its own lends credence to Pauty’s version. But there is also all the other evidence before the court: the unbelievably elaborate precautions taken by the defendant; the fact that for years the defendant had had to pay an allowance to his wife although her misconduct, which the defendant was aware of but unable to prove, would probably have dictated a different assessment of the position; the fact that the agreement on ancillary matters was about to confirm that situation; the utter improbability of anyone’s wanting to send a man who claimed to be a former member of the Foreign Legion and who lacked training, culture and ability to Haiti, and then to Switzerland, to obtain relatively innocuous information which was in any event of dubious relevance for the purpose of the divorce proceedings; the fact that after the failure of the [HR] assignment and the assignment in Haiti - from where Pauty could at least have been expected to return with the information whether Josette Schenk had or had not had a house built - there was no reason to send Pauty to Switzerland, where he had no contacts; the fact that the defendant had spent more than 10,000 CHF to obtain (if his version of events is accepted) very innocuous information; and, finally, the fact that at no time has the defendant taken any steps to lodge a complaint of malicious accusation.
The defendant stated that he had no motive to kill [HR]. But objectively he scarcely had any greater motive for having him beaten up six years after an alleged affront, anonymously and at a time when new commercial negotiations had begun. The fact that the private detectives he had employed had not yielded particularly good results did not mean that some kind of legionnaire who was more or less a police informer would be able to do any better. An intelligent person - and the accused is intelligent - does not replace the intelligence officer of a battalion with the commander of a company of grenadiers. The fact that the divorce proceedings were about to reach a conclusion did not alter the fact that a relationship established after eight years of separation would have very little effect on the amount of maintenance or the fact that the moment when it would be necessary to liquidate joint assets and pay an allowance which Pierre Schenk knew to have been obtained unjustly was approaching. The fact that Pauty did not receive a large advance is not decisive, since it is not difficult to appreciate that Schenk wanted to see results before paying. This mistrust might moreover explain why Pauty changed sides. The defendant considered it inconceivable that Pauty should not have received a large advance, seeing that he had no means of finding RTZ 81, of whose identity he was unaware. That would be true if there had been only a single assignment, but not in the case of several. Moreover, the argument applies equally to an assignment to obtain information. It may be noted in passing that if it had been a question merely of information, it would not have mattered if Pauty had come to Switzerland in the week in which Mrs. Schenk’s daughter was due to give birth.
The defendant put forward other suppositions, namely that Pauty tampered with the recording and used it to some extent with Mrs. Schenk’s co-operation. There is, however, no evidence to support this theory. It should further be noted in connection with the recording that the defendant, who is hard of hearing (he suffers from a 50% hearing loss), claimed that he did not understand what Pauty said on the telephone. This assertion is not consistent with the defendant’s concise and clear questions and replies, or with the fact that he never said that he had not heard or that he had misheard what Pauty said to him. On the basis of all these considerations, therefore, the court has reached the conclusion that in regard to Mrs. Schenk the assignment given to Pauty was to kill her.
In the case of [E], no steps were taken to carry out the assignment of giving him a beating. As far as [HR] is concerned, the court has been unable to reach a conclusion.
The investigation into the charges against the defendant ended in a finding that there was no case to answer. On appeal by the prosecution, the defendant was committed for trial at the Rolle Criminal Court. During the investigation he was held on remand for a fortnight.
Information obtained regarding the defendant’s character is favourable. He is well known and respected in Rolle. He is extremely wealthy. He has never had any dealings with the police and has never been convicted."
27. The applicant appealed on points of law. He complained in particular of the recording, arguing that it had been obtained unlawfully, after the investigation had commenced and with the aim of securing prosecution evidence; moreover, its use contravened the criminal law and it had played a part as direct evidence in the trial.
In a preliminary submission on 23 September 1982, the Principal Public Prosecutor of the Canton of Vaud contended that the court should dismiss the appeal. He expressed the view that "the disputed recording [had been] made in the context of criminal proceedings and at the request of police officers". He did not provide any additional information on this point.
28. On 15 November 1982, the Criminal Cassation Division of the Vaud Cantonal Court dismissed the appeal on the following grounds:
"The impugned judgment states expressly that the trial court relied partly on the disputed recording. Moreover, there is no doubt that the recording was such as to have a perhaps decisive influence, or at the least a not inconsiderable one, on the outcome of the criminal proceedings.
Criminal procedure is subject to the inquisitorial principle, the aim of the trial being, by getting as close as possible to what actually happened, to establish the facts of the case and then to apply the law to the facts found. That being so, it is not possible to exclude automatically all evidence whose source is unlawful or criminal. However, the quest for the truth should not be carried out at the expense of disregarding principles which are sometimes more important (Walder, ‘Rechtswidrig erlangte Beweismittel im Strafprozess’, RPS [Revue pénale suisse] 1966, pp. 36 et seq.). In Clerc’s view (Initiation à la justice pénale en Suisse, p. 150, no. 145), justice must be administered in accordance with the rules of good faith.
According to precedent, which is scarce, the use of evidence which has been obtained unlawfully is excluded only where such evidence could not have been obtained under the existing law, but not where only a procedural rule has been infringed which was neither intended nor apt to prevent the search for evidence (RO [Judgments of the Swiss Federal Court] 96 I 437, c. 3 b, JT [Journal des Tribunaux] 1972 I 217 summary; RO 103 Ia 206 = JT 1979 IV 16; Belschaw, 3.9.1980; OG ZH [Court of Appeal of the Canton of Zürich]; SJZ [Schweizerische Juristen Zeitung] 1981, no. 28, p. 130; KG ZH [Court of Cassation of the Canton of Zürich]; BZR [Blätter für Zürcherische Rechtsprechung] 1974, no. 44, pp. 106 et seq.). But the distinction between unlawfulness and procedural irregularity is often a fine one (Hauser, ‘Probleme und Tendenzen im Strafprozess’, RPS 1972, pp. 129, 130).
The criterion established by precedent has been considered unsatisfactory by academic opinion (Hauser, op. cit., p. 131; Hauser, Kurzlehrbuch des schweiz. Strafprozessrechts, p.147; Walder, ‘Rechtswidrig erlangte Beweismittel im Strafprozess’, RPS 1966, pp. 37 et seq.; Hutzli, Die verfassungsmässigen bundesrechtlichen Schranken im einzelstaatlichen Strafprozess, thesis, Berne, 1974, p. 227).
In any event, as far as the admissibility of evidence is concerned, it is not decisive that it has been obtained by means of a criminal offence.
Walder notes that as a general rule it is not so much the evidence as such as the manner in which the evidence has been obtained which may preclude its use (p. 41). He distinguishes between the infringement of an important right and that of a purely procedural requirement, and between evidence obtained judicially and evidence obtained extrajudicially (p. 43). In his view, certain evidence cannot be used directly, although its indirect use, i.e. the use of evidence obtained as a result of it, is possible (p. 45), or at least the use which has been made of evidence obtained unlawfully cannot be disregarded (p. 47). Walder concludes that it is necessary to consider each case individually to determine whether the unlawfulness in question is so serious that the illegally obtained evidence cannot be used; this can be done only by weighing up the interests and rights at stake (p. 59). Thus, in this author’s view, it is entirely permissible to use information regarding the commission of a serious crime which has been obtained in breach, for example, of statutory provisions on telephones (p. 51).
In Hauser’s view (Kurzlehrbuch, p. 147), it is necessary to assess the rules under which evidence may be excluded as inadmissible in terms of what they were intended to protect. Evidence obtained in breach of a prohibition designed to obviate risks associated with establishing the truth - such as an extorted confession - must be excluded.
Generally speaking, it is accepted that the investigating authorities are prohibited from using coercion or threats, or from resorting to false statements or misleading questions (Pfenniger, Probleme des schweiz. Strafprozessrechts, p. 191; Hauser, Kurzlehrbuch, p. 146, para. 57 II 2, and p. 151, para. 58 III 2; Walder, op. cit., p. 52).
Examination of the foregoing in the light of Article 6 para. 2 (art. 6-2) of the European Convention on Human Rights, under which an accused may not be convicted unless proved guilty according to law, does not give rise to any different distinctions (see in particular Poncet, La protection de l’accusé par la CEDH, pp. 89 et seq.). According to Article 8 para. 2 (art. 8-2) ECHR [the European Convention on Human Rights], interference by a public authority with private life or with correspondence is permissible only where it is in accordance with the law and is necessary in a democratic society in the interests of, inter alia, public safety and the prevention of disorder or crime.
In the Klass judgment of 6 September 1978, the European Court of Human Rights took the view that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society. It recognised that, as regards the fixing of the conditions under which the system of surveillance was to be operated, the legislature enjoyed a certain discretion (European Court of Human Rights, Series A, no. 28, paras. 48 and 49, p. 23; see the arguments before the European Commission of Human Rights, Yearbook of the European Convention on Human Rights 1974, pp. 178 et seq., esp. pp. 184 et seq.).
In an earlier case, the Committee of Ministers took the view, on 5 May 1971, that the tape recording of a private conversation unbeknown to the participants or one of them constituted in principle an interference with privacy but that the use by the court of the recording in evidence did not infringe the right to a fair trial guaranteed in Article 6 para. 1 (art. 6-1) of the Convention (Yearbook 1971, pp. 902 et seq.). The Commission expressed the same view (Yearbook 1969, pp. 156 et seq.).
More recently, the European Commission of Human Rights observed in a German case that the fact that the authorities charged with the telephone tapping generally did not fully respect the directives given to them - however regrettable it might be - did not by itself constitute a violation of the Convention, in particular of Article 8 para. 1 (art. 8-1) (13 December 1979, Decisions and Reports no. 18, p. 180).
It is worth noting further that the Commission has accepted, firstly, that police officers may take confidential information from persons with a legitimate interest in remaining anonymous, failing which much information needed if crimes are to be punished would never be brought to the knowledge of the prosecuting authorities; and, secondly, that the statements of an informant could be taken into consideration where the jury’s attention had been drawn to the status of a statement which was not corroborated under oath during the proceedings in court and where the accused had been able to produce in court various witnesses who denied that the events in question had occurred (4 May 1979, Decisions and Reports no. 16, pp. 207 et seq.).
It may be inferred from the foregoing that the view taken by the institutions responsible for the application of the ECHR is no stricter than the one adopted by the Federal Court in the decisions cited.
The rules set out and discussed here, which concern the investigating authorities, cannot as such apply to evidence unlawfully obtained by private individuals. Certain methods which are unacceptable in the case of the former are not necessarily so in the case of the latter (Walder, op. cit., p. 42). Academic writers accept, for example, that a victim of threats or blackmail may be compelled, where evidence of the fact is otherwise difficult to obtain, to make a secret recording of the perpetrator’s statements (Hauser, Kurzlehrbuch, p. 148; Walder, op. cit., p. 48). As regards the acts of a private investigator, opinion is divided. Hauser considers that there are no grounds for distinguishing such investigators from official ones, since the dangers of falsifying facts are even greater (Kurzlehrbuch, p. 148). Previous decisions of the courts have left the question open (RO 99 V 15; RO 103 Ia 216, 9b; SJZ 1981 no. 28, 2b, p. 132).
It would have been unlawful for the police to record a telephone conversation in Switzerland without the authorisation of a judge. However, such authorisation could have been granted, since the investigation was instituted as a result of a serious criminal offence, by virtue of Art. 179 octies CC. The disputed recording does not in itself constitute prohibited evidence either under Swiss law or under the rules laid down by the European Court of Human Rights. It may be conceded to the appellant that even in the absence of any complaint, the private recording of Pauty’s telephone conversation with the defendant amounts to an offence in itself (RO 81 IV 90 3a, JT 1955 IV 140). On the other hand, the rule that was infringed - Art. 179 bis CC - protects individual privacy and is not designed to eliminate the risk of mistake.
Moreover, if regard is had to the balance of the interests and rights at stake, as Walder recommends, it must be recognised that the difference between authorised tapping and unauthorised recording is not in itself sufficient to justify attaching greater importance to the protection of privacy than to the public interest in exposing a person guilty of a serious crime.
The method used by Pauty to obtain the appellant’s incriminating statements is undoubtedly contrary to the rules of good faith, since it consisted in stating untruthfully that the killer’s assignment had been carried out, which amounted to Pauty’s laying a trap for his interlocutor. However, although any attempt by the authorities to incite a person to commit an offence is open to censure, the stratagem of inducing an offender to confess to a crime is not (Clerc, ‘Les moeurs de la police et la morale’, in Varia Juridica 1982, esp. p. 149). Thus the use of violence or even deceit to obtain a statement is unlawful but, on the other hand, it is permissible to use a trick (Clerc, op. cit., p. 146). Such a practice is common on the part of the authorities where, for example, the lives of hostages are in danger. Besides, a given method might be legitimate in one case and immoral in another (op. cit., p. 151).
It follows that the means used in this case remained within the limits of what is acceptable for the purposes of combating crime. In any event, the deceit concerned only one matter, namely the performance of the act contemplated.
In sum, the contested evidence is admissible under Swiss law and does not infringe the appellant’s fundamental rights. Although the recording was made and acquired by the police in France, it is unnecessary to consider any more extensive rights which might exist under foreign law. After all, France also allows telephone tapping and the recording of telephone conversations, even though the French Criminal Code likewise penalises such recording where it is not authorised by the competent authority (Précis Dalloz, Procédure pénale, 1980, p. 34, Arts. 368 para. 1 and 372 para. 2 of the French Criminal Code). Furthermore, although in France attempted incitement is not an offence, it would have been possible under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, to which Switzerland and France have acceded, for Switzerland to issue letters rogatory requesting such monitoring. Unlike Switzerland, France has not made a reservation whereby execution of any letters rogatory requiring a coercive measure is conditional on the alleged offence’s being punishable in both the requesting and the requested country. Telephone monitoring is regarded as equivalent to such a measure (Romanens, Die Telefonüberwachung als Gegenstand der Rechtshilfe in Strafsachen, Berne thesis, 1974, p. 108).
The appellant argues further that authorised tapping would have provided all the necessary safeguards as to the accuracy and completeness of the recording. An authorised recording inevitably constitutes more weighty evidence than a private recording, in view of the risk of faking in the second case. However, in this instance the circumstances of the recording were known and an expert report, for the purpose of which the cassette and the recorder had been examined, was made available to the court. The court also knew how much time had elapsed between the recording and the handing over of the recorded tape to the police. It was thus able to assess the value of the evidence having regard to its authenticity.
The use of a trick or subterfuge is similarly liable to affect the weight attributed to statements obtained in such a manner. The trial court was, however, in a position to assess the weight to be attached to the defendant’s statements in the light of such a manner of proceeding, as the recording moreover reproduced a complete telephone conversation. In this respect too the contested evidence is admissible."
29. Mr. Schenk lodged a public-law appeal and an application for a declaration of nullity with the Federal Court against the judgment of the Vaud Criminal Cassation Division. Both were founded on the same complaints regarding the disputed recording. The applicant claimed in substance that the recording was unlawful; that the Criminal Court should therefore have ruled it inadmissible as evidence; and that in not so doing, the court had infringed in particular Article 36, paragraph 4, of the Constitution, which guarantees the secrecy of communications, Article 11 of the Vaud Act implementing the Criminal Code of 27 February 1980 and Articles 6 para. 2 and 8 (art. 6-2, art. 8) of the Convention.
30. On 7 September 1983, the Federal Court (Criminal Cassation Division) dismissed the public-law appeal on the following grounds:
"(a) It can be accepted that the ingredients of an offence under Art. 179 ter CC were present as far as the disputed recording is concerned. However, Pauty made the recording in order to prove the truth of his statements at a time when he was under investigation for attempted murder. If a complaint had been lodged under Art. 179 ter, it is not certain that the proceedings would have resulted in the imposition of a sentence. But this question can remain open. The provisions of the Criminal Code and of the VACC [Vaud Act implementing the Criminal Code] concerning telephone tapping define lawful and unlawful tapping and fix the penalties for the latter. They contain no rules for determining the validity of such tapping as evidence at a trial.
(b) It is true that Swiss law authorises infringement of personal rights and of the confidentiality of communications in the form of telephone tapping only where such a measure has been ordered by the competent authority and approved by a judge. To conclude from this that any evidence derived from unauthorised tapping must never in any circumstances be used in evidence would be to adopt too dogmatic a position and would often lead to absurd results (see Hans Walder, ‘Rechtswidrig erlangte Beweismittel im Strafprozessrecht’, in RPS 1966, pp. 36 et seq., and Klaus Rogall, ‘Gegenwärtiger Stand und Entwicklungstendenzen der Lehre von den strafprozessualen Beweisverboten’, in Zeitschrift für die gesamte Strafrechtswissenschaft 1979, pp. 1 et seq., esp. p. 15; see also Karl Heinz Gössel, ‘Kritische Bemerkungen zum gegenwärtigen Stand der Lehre von den Beweisverboten im Strafverfahren’, in Neue juristische Wochenschrift 1981, p. 649). In such a case it is necessary to balance, on the one hand, the interest of the State in having a specific suspicion confirmed or disproved and, on the other, the legitimate interest of the person concerned in the protection of his personal rights. To this end, all the relevant circumstances should be taken into consideration.
In the Federal Republic of Germany, the Constitutional Court has reached the same conclusion. In a case where a person was suspected of having committed offences involving tax evasion, fraud and forgery of documents, the court refused to attach any probative weight to a recording made privately. It considered, however, that the position would have been different if there had been an imperative community interest at stake which took precedence over the private interest of the person concerned; thus it held that it would not generally be contrary to constitutional law, in cases of necessity, to allow the authorities to use a recording that had been made by a third party and which could lead to the identification of a criminal or exculpate a person who had been wrongly accused, where serious offences were involved, such as offences against the person, serious attacks on the constitutional order and democratic freedoms, and offences against legally protected interests of the same order (Entscheidungen des Bundesverfassungsgerichts 34 - 1973 - pp. 238 et seq., esp. 249).
In the instant case, it is necessary to weigh, on the one hand, the interest in confirming or proving unfounded the specific suspicions that Schenk was guilty of incitement to murder and, on the other, Schenk’s interest in preserving the confidentiality of his conversation with Pauty. The conclusion is inescapable that the public interest in having the truth established in the matter of an offence relating to murder overrides Schenk’s interest in maintaining the confidentiality of a telephone conversation which in no way bore upon his privacy but related exclusively to the completion of an assignment entrusted to Pauty. The need to protect a person’s privacy cannot have the effect of making such a recording inadmissible as evidence in criminal proceedings when there are strong suspicions concerning a very serious offence (see Rogall, op. cit., 1979, pp. 29 et seq.).
Moreover, it is relevant to point out that Swiss law authorises tapping the telephone of an individual suspected of involvement in a crime. Admittedly, such tapping is subject to authorisation by a judge, but the recording of a conversation is not, as such, evidence which the State would have refrained from using as a matter of principle and in order to protect the higher interests of the individual. This type of evidence cannot be compared with a truth drug, coercion or torture, which are absolutely prohibited as a matter of public policy. Accordingly, there would have been no legal bar to prevent the same recording, made in Switzerland on the line of the telephone kiosk in the hospital where Schenk was staying, from being lawful and being admitted in evidence. It follows that an infringement of personal rights which does not amount to a breach of the Constitution under Swiss law - when certain conditions are satisfied - may be classified as minor where it could have been ordered under Art. 179 octies para. 2 CC (see ATF [Judgments of the Swiss Federal Court] 96 I 440).
(c) In this case, as Schenk was strongly suspected of having participated in a crime intended to result in a person’s death; as the judge would have been entitled to order that his conversation of 26 June 1981 with Pauty should be recorded; as it was the latter who made such a recording while under investigation for attempted murder with or without premeditation; and as the conversation did not concern facts of an intimate nature, the [Rolle] District Criminal Court was entitled to refuse to rule the tape inadmissible in evidence and could assess it as evidence without infringing Swiss constitutional law. Nor, in so doing, did that court infringe Arts. 6 and 8 (art. 6, art. 8) ECHR." (Judgments of the Swiss Federal Court, vol. 109, part I, pp. 246-248)
31. Also on 7 September 1983, the Federal Court (Criminal Cassation Division) dismissed the application for a declaration of nullity. In particular, it declared inadmissible the submission based on the playing of the telephone recording to the Criminal Court: it held that this issue related to the introduction of evidence, which was governed by cantonal procedure.
32. On 6 July 1983, Mr. Schenk applied for a stay of execution of his sentence on health grounds. The Head of the Vaud Department of Justice, Police and Military Affairs rejected this application on 7 December, whereupon the applicant lodged an administrative-law appeal, which was dismissed by the Federal Court on 21 February 1984.
33. In August 1983, the applicant was transferred to Chamblon geriatric hospital to complete his sentence.
On 5 December 1984, he was granted a partial pardon by the Grand Council of the Canton of Vaud whereby the remainder of his sentence was remitted, having regard in particular to the state of his health. He was released on 8 December 1984.
34. The Swiss Criminal Code contains the following provisions relating to telephone tapping:
"A person who, without the consent of all the participants, has listened to by means of a listening device or recorded on a recording apparatus a private conversation between other persons; or
a person who has used or made known to a third party a fact when he knew or should have assumed that his own knowledge of this fact had been obtained by means of an offence under the first paragraph; or
a person who has kept or made available to a third party a recording which he knew or should have assumed had been made by means of an offence under the first paragraph
shall be liable to imprisonment or a fine, if a complaint is made."
"A person who, without the consent of the other participants, has recorded on a recording apparatus a private conversation in which he took part; or
a person who has kept a recording which he knew or should have assumed had been made by means of an offence under the first paragraph, or who has used such a recording for his own benefit or has made it available to a third party
shall be liable to a period of imprisonment not exceeding one year or a fine, if a complaint is made."
"The following shall not be guilty of an offence under the first paragraph of Article 179 bis or the first paragraph of Article 179 ter:
a person who has, by means of a telephone or accessory equipment authorised by the telephone company, listened to, or who has recorded on a recording apparatus, a conversation transmitted by telephone equipment controlled by the telephone authority;
a person who has, by means of a telephone or accessory equipment connected to the main installation, listened to, or who has recorded on a recording apparatus, a conversation transmitted by equipment not controlled by the telephone authority."
"No offence is committed where a person by the express authorisation of the law orders official monitoring of postal, telephone or telegraphic communications of specified persons or orders the use of monitoring devices (Articles 179 bis et seq.), provided that he immediately seeks the approval of the competent judge.
The approval referred to in the first paragraph may be given in order to investigate or prevent a crime or an offence whose seriousness or special nature justifies the proposed action, or an offence committed by means of the telephone."
35. Article 5 of the Swiss Criminal Code provides that the Code may be applicable to offences committed abroad against Swiss nationals:
"The present Code shall be applicable to anyone committing an offence abroad against a Swiss national, provided that the offence is punishable also in the State in which it was committed, where the offender is in Switzerland and is not extradited abroad or where he is extradited to the Confederation on account of the offence. The foreign law shall, however, apply if it is more favourable to the person charged with the offence.
The offender shall no longer be punishable on account of his offence if he has undergone the penalty imposed on him abroad or if he has been granted remission of sentence or if the penalty is time-barred.
Where he has not undergone abroad the penalty imposed on him, it shall be undergone in Switzerland; if he has undergone abroad only part of the penalty, the remainder shall be undergone in Switzerland."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-22167
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: LAWRENCE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza
TEXT: The applicant, Joseph Dwight Lawrence, is a United Kingdom national, born in the United States of America in 1952 and living in Northwood, Middlesex.
The facts of the case, as set out in documents submitted by the applicant, may be summarised as follows.
The applicant was involved in a boundary dispute with his neighbours. In March 1997 he had built a brick wall on an area which the neighbours claimed was their land, with the result that the neighbours commenced a civil action in trespass against the applicant in the Watford County Court in June 1997. The neighbours instructed a partner in the litigation department at a local firm of solicitors, Matthew, Arnold and Baldwin (“MAB”), to act for them in connection with the dispute. The firm was the largest in Watford.
The case was originally to be heard by a County Court Judge who, following the hearing of a number of preliminary issues on the case, became unavailable and was replaced by another such Judge (“the Deputy Judge”) on 11 August 1999. The applicant disputes the unavailability of the first Judge to preside over the proceedings after that date.
The Deputy Judge and his wife had instructed the private client partner at MAB to prepare their wills in November 1995. MAB had thereafter kept custody of the wills and, in late October or early November 1999, the Deputy Judge and his wife instructed the same partner at MAB to amend their wills by way of new codicils. They made an appointment to call in at MAB’s offices on the evening of 11 November 1999 which, as the Deputy Judge was aware, would coincide with his presiding over the trespass proceedings.
The trial commenced on 16 August 1999 in order to allow one of the neighbours’ witnesses to give evidence, since he would not be available on the dates listed for trial between 9 and 12 November. On 21 September 1999, the District Judge heard the applicant’s request that he withdraw from the case in favour of the original County Court Judge on the basis that the latter had been involved in the case throughout. The Deputy Judge refused the application. On 28 October 1999, the Deputy Judge heard an application by the applicant for summary judgment on the basis of alleged deliberate failure by the claimants, their expert and MAB to obey Court Orders. At the hearing, the Deputy Judge asked the applicant whether he was making a complaint about the conduct of MAB, to which the applicant responded that he was not. The applicant maintains that the Deputy Judge’s question was aimed only at a specific part of the application for summary judgment, which part concerned failures only on the part of the neighbours’ expert witness.
The Deputy Judge informed the applicant upon resumption of the trial on 9 November that MAB had made his will some years previously, and that they still held it, and the applicant took no point on the issue. By the end of that day two of the neighbours’, and one of the applicant’s, witnesses of fact had been examined at length. On the morning of 12 November, the Deputy Judge or one of his assistant staff approached the neighbours’ counsel outside the judges’ robing room and informed him of the Deputy Judge’s intention to impose a timetable for the trial, including a limit on the time to be allowed for examination-in-chief of outstanding witnesses of both parties. The neighbours’ counsel passed on this message to the applicant as requested by the person who had spoken to him, and the Deputy Judge, upon resumption of the hearing, announced a five minute limit upon examination-in-chief of the remaining witnesses. As a result, the applicant decided not to call his second witness of fact, who was to travel to the hearing from Israel to testify, and that witness’s written statement was not admitted into evidence.
The hearing ended on the afternoon of 11 November 1999 and the Deputy Judge rose to consider his judgment overnight. He and his wife arrived at the offices of MAB and signed the codicils as previously arranged, meeting a solicitor and a paralegal who each witnessed the signatures. The paralegal had been waiting to meet a colleague in the reception area and was asked to witness the codicil on the spur of the moment. She had worked at MAB since around 1995 in the firm’s debt collection department and had assisted in typing some letters in connection with the neighbours’ case against the applicant in 1997, 1998 and 2000. MAB subsequently wrote to the applicant and named the solicitor as a member of the firm’s tax, trusts and probate department, but this identification is disputed by the applicant.
The following morning the Deputy Judge delivered judgement in the County Court proceedings in favour of the neighbours. The applicant was required to remove the wall which he had built on the land at issue, which was held to constitute part of the applicant’s property. The applicant was also made subject to an injunction prohibiting him from entering onto the neighbour’s land or interfering with it. The applicant was ordered to pay GBP 190 in damages to the neighbours and a proportion of their costs.
The applicant was granted leave to appeal to the Court of Appeal by that court in March 2000. He raised three grounds of appeal: that the Deputy Judge had misunderstood or misdirected himself with regard to the necessary components of an “adverse possession” claim in that the neighbours had never had the necessary intention to possess; that because the Deputy Judge before and during the trial had dealings with the solicitors acting for the neighbours, there was an appearance of bias; and that the Deputy Judge conducted the hearing in an unfair manner, limiting the applicant’s examination of his witnesses in a way in which the neighbours had not been so limited. Lord Justice Mantell, in granting leave, commented that he considered all three grounds arguable, but that the third was of lesser weight.
The applicant found out about the Deputy Judge’s 11 November 1999 meeting at MAB shortly afterwards.
At the hearing of the appeal before the Court of Appeal on 25 January 2001, the applicant confined his grounds of appeal to the first two grounds considered at the leave stage, although the court did comment on all three grounds in its judgment. On the first ground, following a fresh examination of the facts, the court concluded that adverse possession had been established in favour of the neighbours, and that such possession had continued for more than twelve years thereby extinguishing the applicant’s predecessor-in-title’s ownership of the land. Lord Justice Gibson went on to comment on the second and third grounds of appeal as follows:
“22. It seems to me that the fair-minded and informed observer would recognise that every judge lives in the community and that in his private life, away from his judicial life, he may need to use the services of service providers, including solicitors. That observer would also appreciate that solicitors, by the very nature of their work, have many clients the affairs of each of whom must be kept separate from those of another client. The use by a judge of the services of a firm of solicitors for his personal purposes, such as for drafting his will, would not, I think, give rise to any expectation, or even any suspicion, in the fair-minded and informed observer that the judge in his judicial capacity would, by reason of that connection over his will, be untrue to his judicial oath and favour another client of those solicitors. The observer would take note of the fact that at the time when the Deputy Judge heard the evidence of Mr Moore [the applicant’s predecessor-in-title] he was not aware who were the solicitors of the claimants [ie the applicant’s neighbours] and that, having heard that evidence, the Deputy Judge was the obvious person to complete the hearing of the trial. Indeed, if he had stood down, there would at least have been a risk that Mr Moore’s evidence would have to be taken in front of another judge, thereby adding disproportionately to the costs of what is essentially a very minor dispute. The observer would take note of the fact that the Deputy Judge volunteered the information that the claimants’ solicitors had acted for him in preparing his will and that the Deputy Judge had obtained the express confirmation of the parties that there was no objection to him continuing to preside in the case. The observer would, in my view, have attached particular importance to the fact that the will, as the Deputy Judge told the defendants [ie the applicant] was being kept by the claimants’ solicitors. That in itself would indicate that there was a continuing relationship with the solicitors and that it was possible that the will might need to be altered in some way (and codicils are frequently made after a will has been executed), when probably there would be contact between the Deputy Judge and those solicitors. As the Deputy Judge obtained confirmation from the defendants that despite his connection with the solicitors over his will there was no objection to him continuing to sit, the observer would reasonably regard the completion of a codicil, which the solicitors had been asked by the Deputy Judge to prepare, as within the reasonable scope of what had been cleared with the parties.
23. The witnessing of the signature of the testator on a testamentary document, as the informed observer would know, is a mere ministerial task, and the fact that a secretary in the litigation department of the solicitors happened to be available to be such a witness is in itself neither sinister nor significant. The observer would note that the Deputy Judge as made clear that he did not discuss the claimants’ case against the defendants when he went to complete his codicil.
24. The passing of a message to the claimants’ counsel by the Deputy Judge, or the court usher, or the Deputy Judge’s clerk would not, in my view, be regarded by the observer as of any significance whatsoever. There is no evidence that the Deputy Judge was consulting Mr Cowen in passing that message to Mr Cowen and Mr Lawrence. I have already stated that what Mr Cowen has said occurred. In my judgment, it is impossible to regard that incident as indicating any appearance of bias.
25. ... the mere fact that a witness of the Deputy Judge’s signature to his codicil was a secretary who had some connection with the case, in that her initials appear (with the initials of another) on letters to the defendants in relation to this case, would not appear to the fair-minded observer to be of any importance. Nor, in my judgment, can there possibly be some sort of duty on the Deputy Judge to have investigated precisely what functions were performed in the affairs of the claimants’ solicitors by a mere witness to his signature.
26. Looking at the matter objectively, I am wholly unable to see that the fair-minded and informed observer would conclude from the various matters to which Mr Lawrence has attached importance that this was a case in which there has been an appearance of bias. For this reasons, therefore, I do not accept his arguments on this ground.
27. For completeness I should also deal briefly with Mr Lawrence’s further objection that the Deputy Judge conducted the trial unfairly in imposing a timetable on the trial at the start of the second day, only allowing five minutes for the examination in chief of further witnesses. Mr Lawrence submits that this is quite unfair, because two witnesses for the claimants were examined in chief at greater length on the first day.
28. In my judgment there is nothing in this point either. The chief witness of fact for the defendants was Mr Moore. It is apparent from the transcript of the hearing in August that Mr Moore was examined by Mr Lawrence in chief at some length. The fact that the two sons of the late Mr Griffiths were examined on 9th November for rather longer than five minutes does not, to my mind, lead to the conclusion that on 10th November the Deputy Judge, exercising his case management powers and imposing a rather more rigorous timetable from then on, was showing bias or acting unfairly. The Deputy Judge’s direction also applied to the further witnesses of the claimants. In any event, as I have said, the main witness of the defendants had already given evidence without any time limit. Further the other witnesses had produced witness statements and there was no need for there to be a lengthy examination in chief. (...)”
The Court of Appeal therefore dismissed the appeal.
The applicant has recently discovered that the Deputy Judge was never charged by MAB for the work done in connection with the codicils signed on 11 November 1999. In this connection, the Deputy Judge wrote to the head of the Civil Appeals Office in November 2001 indicating that the purpose of the codicils was to delete a charitable gift that he and his wife had decided to give instead in celebration of his wife’s seventieth birthday. He attached a letter dated 30 October 2001 from MAB, which explains that the codicil involved the deletion of one clause of the wills of the Deputy Judge and his wife and that, given the simplicity of the work, it would have been uneconomic to render an account for it.
The applicant has informed the Court that be a further hearing is listed before the Court of Appeal for mid-December 2001 on the question of whether or not that court has jurisdiction to re-open the matter in light of the recent developments.


ITEMID: 001-120080
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: LOHUIS AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicants are Netherlands nationals resident in the Netherlands. They are represented by Mr A.B. Lever, a lawyer practising in Apeldoorn. A list of the applicants is set out in the appendix.
3. From the 1980s onwards the Netherlands, in common with other European Union countries, introduced measures aimed at limiting the quantity of dung, or faecal matter, produced by certain animals including pigs. This initially involved a system of “dung production quotas”.
4. On 1 September 1998 the Pig Farming Restructuring Act (Wet herstructurering varkenshouderij) entered into force.
5. The Pig Farming Restructuring Act, according to its preamble, was enacted with a view to implementing European Union Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources, and also in order to preserve amenity, the quality of the environment and the health and well-being of animals.
6. The Pig Farming Restructuring Act transformed “dung production quotas” into a maximum number of pigs per farm – the so-called “pig entitlement” (varkensrecht). Pig entitlements (except in so far as they concerned breeding sows, which were treated as a special category) were transferable, within certain (especially territorial) limits (sections 16-17 of the Pig Farming Restructuring Act) and subject to the lapse of a variable proportion of the entitlement upon transfer (section 18 of the Pig Farming Restructuring Act); they could not, however, be used as collateral (section 22).
7. The pig entitlement was calculated in each case by reducing the average number of pigs held on the farm in 1996 or, in certain cases, 1995 by 10% (sections 6 and 7 of the Pig Farming Restructuring Act). A further reduction by 15% was foreseen with effect from 1 January 2000 (section 31 of the Pig Farming Restructuring Act). It was the actual number of pigs kept in those years that was decisive; any “latent capacity” (latente ruimte), that is the difference between the number of pigs a farmer would have been allowed to keep at the relevant time and the number actually kept, was lost.
8. Provision for special cases of hardship was made in the Pig Farming Restructuring (Hardship) Decree (Besluit hardheidsgevallen herstructurering varkenshouderij); such cases included, among others, farms which – as determined by precise formulae – had, for specific reasons (a farmer’s ill-health not among them), been working significantly below the capacity allowed them in 1995 and 1996 by the dung production quota legislation then in force.
9. The Pig Farming Restructuring Act and the Pig Farming Restructuring (Hardship) Decree were repealed with effect from 1 January 2006.
10. The applicants are, or were at the relevant time, pig farmers resident and farming in the Netherlands.
11. The applicants Lohuis and Lohuis-Voshaar, who ran a farm as a partnership (maatschap), were farming at considerably less than full capacity in 1995 and 1996 owing to ill-health. They ended up losing over 30% of their original pig entitlements as “latent capacity”, in addition to the 25% total reduction prescribed by the Pig Farming Restructuring Act. They have since given up farming.
12. The applicant Van Gerwe farmed at two locations, on one of which he was building a new pig shed in 1995; farming began there in 1996. Thanks to a clause beneficial to him in the Pig Farming Restructuring (Hardship) Decree he lost only 5% of his entitlements for that location as “latent capacity”. For the other location he lost the full 25%.
13. The applicant Schutte lost the full 25% of his 1995-1996 entitlement plus 5% as “latent capacity”. He also stated that he had run into financial difficulties as a result of the uncertainty facing pig farming in the late 1990s, which had forced him to sell off some of his land and purchase pig entitlements from elsewhere.
14. The applicant Van den Heuvel lost the full 25% of his former entitlements, plus a claimed 30% as “latent capacity”.
15. On 26 June 1998 the applicants, together with other pig farmers and a non-governmental organisation set up to further the interests of pig farmers (hereafter “the original plaintiffs”), brought a civil action in tort against the State before the Regional Court (arrondissementsrechtbank) of The Hague, arguing among other things that the new legislation constituted a “deprivation of possessions” within the meaning of Article 1 of Protocol No. 1.
16. On 23 December 1998 the Regional Court gave judgment holding, as relevant to the case, that pig entitlements constituted “possessions”, and that depriving the applicants thereof without any compensation constituted a tort as long as adequate arrangements for compensation were not made. The Pig Farming Restructuring (Hardship) Decree was not sufficient to mend matters since it could merely limit the damage, not compensate for it.
17. The State appealed to the Court of Appeal (gerechtshof) of The Hague. The original plaintiffs lodged a cross-appeal.
18. On 20 January 2000 the Court of Appeal gave judgment holding that the measures complained of constituted not a “deprivation” of possessions but a “control” of their use. It accepted the necessity of measures to be taken, and also the proportionality of the first reduction of the pig entitlements by 10%. The second reduction by an additional 15%, however, it found disproportionate. It therefore held that section 31 of the Pig Farming Restructuring Act should not be put into effect as regards the original plaintiffs, dismissing their claims for the remainder.
19. A number of the original plaintiffs, including the applicants, lodged an appeal on points of law to the Supreme Court (Hoge Raad). The State lodged a cross-appeal.
20. On 16 November 2001 the Supreme Court delivered a judgment (LJN (Landelijk Jurisprudentie Nummer, National Jurisprudence Number) AD5493) quashing the judgment of the Court of Appeal. As relevant to the case before the Court, it found that Article 1 of Protocol No. 1 was applicable and that there had been an interference with the applicants’ right to the peaceful enjoyment of their possessions. However, there was no “de facto expropriation” as the applicants argued. On this point, the Supreme Court held as follows:
“6.1.3. According to the case-law of [the European Court of Human Rights], in cases where there is no formal expropriation there is a deprivation within the meaning of the second sentence of Article 1 of Protocol No. 1 if it concerns a ‘de facto expropriation’ (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 63, Series A no. 52, Nederlandse Jurisprudentie (Netherlands Law Reports, NJ) 1988, no. 290, and Fredin v. Sweden (no. 1), 18 February 1991, § 42, Series A no. 192).
According to the case-law of [the European Court of Human Rights] cited in the advisory opinion of the Acting Procurator General ... it is, in the case of a (partial) withdrawal of a licence, or of a restriction of a different kind of the rights flowing from the licence, not the licence itself that constitutes the nexus (aanknopingspunt) for the protection of property, but the enterprise exploited with that licence. In line with this, whenever – as in the cases in issue in the present proceedings – the contested Government measure purports to restrict certain enterprise activities (bedrijfsactiviteiten) in pursuance of goals such as those pursued by the quota arrangement of the Pig Farming Restructuring Act (...), then in answering the question whether that measure constitutes a ‘de facto expropriation’ the effects of that measure on the affected enterprise as a whole must be examined (...). The circumstance that the legislative arrangements (regelingen) involved provide for (limited) transferability of dung production quotas and pig entitlements does not deprive these legislative arrangements of the character of a restriction imposed on the exploitation of the enterprise (aan de bedrijfsvoering opgelegde beperking).”
The Supreme Court went on to hold that the new legislation constituted a “control of use” of the applicants’ possessions. The legislature had not, in principle, overstepped its “margin of appreciation”. It had to be recognised, however, that the interests of the individual pig farmers among the plaintiffs deserved protection: in particular, a “fair balance” had to be found in each case, implying a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The case was remitted to a different Court of Appeal, that of Arnhem, which would have to review the individual cases of the pig farmers party to the proceedings. The instruction to the Arnhem Court of Appeal was phrased as follows:
“7.3 It follows [from the above] that the second paragraph of Article 1 of Protocol No. 1 does not, in principle, constitute a basis for not applying the Pig Farming Restructuring Act in respect of those pig farmers who have been affected by the impugned measures only as concerns dung production quotas or pig entitlements allotted them by law and which they have not acquired for a consideration in any other way.
However, after remittal it will have to be examined whether the impugned measures under the Pig Farming Restructuring Act constitute an ‘individual and excessive burden’ for one or more of the [individual] appellants [i.e. not including the non-governmental organisation aforementioned] owing to specific facts and circumstances not applicable to all pig farmers, and whether the relevant provisions of the Pig Farming Restructuring Act should not be left unimplemented in their respect, at least as long as no provision is made for adequate financial compensation. This may be the case, in particular – but not exclusively –, if a pig farmer’s dung production quota or pig entitlement, obtained for a consideration, is affected, it being of particular importance to what extent the State has created expectations finding their expression in, for example, the price for which the rights in issue were obtained.
As mentioned, such problems have been provided for in part by the Pig Farming Restructuring (Hardship) Decree. The [individual] appellants have however stated that this Decree does not apply to them.
7.4. In so doing it will be possible also to take into consideration facts and developments in the field of legislation that have occurred subsequent to the judgment of the Court of Appeal. After remittal the parties will be able to expand and adapt their positions accordingly.”
21. The applicants lodged an application with the Court on 13 May 2002, complaining that the new legislation did not constitute a “control of the use of property” within the meaning of Article 1 of Protocol No. 1 but a “deprivation of possessions” without any form of compensation.
22. On 8 April 2004 the Court, sitting as a Committee of three judges (former Article 27 § 1 of the Convention), declared that application (no. 18689/02) inadmissible. It found that domestic remedies had not been exhausted as required by Article 35 § 1 of the Convention, since, after the case had been remitted by the Supreme Court to the Court of Appeal of Arnhem, the proceedings had not yet been pursued to a final decision.
23. After the Court’s decision of inadmissibility, proceedings were resumed in the Court of Appeal of Arnhem on the basis of the Supreme Court’s remittal judgment of 16 November 2001.
24. The Arnhem Court of Appeal gave an interlocutory judgment on 29 August 2006. It found, as relevant to the case before the Court, that both the Court of Appeal of The Hague and the Supreme Court had dismissed the suggestion that the applicants’ pig entitlements were “possessions” within the meaning of Article 1 of Protocol No. 1 of which they had been deprived. Referring to the judgment of a Chamber of this Court (J.A. Pye (Oxford) Ltd v. the United Kingdom, no. 44302/02, § 46, 15 November 2005), it held that it had nonetheless to consider whether a “reasonable relationship of proportionality” existed regardless of whether the interference with the applicants’ rights was to be seen as a “deprivation” of possessions or as “control” of their use.
25. Faced with the need to consider the applicants’ cases individually, it came to the provisional conclusion that the applicant Lohuis had been disproportionately affected. He had lost no less than 34% of his pre-existing rights, his “latent capacity”, in addition to the 25% total reduction under the Pig Farming Restructuring Act; this had rendered an investment in a new pig shed made in 1993, worth 60,000 Netherlands guilders (NLG), useless. In the case of the applicant Van den Heuvel there was a dispute as to the actual extent and value of the “latent capacity” actually lost. The claims of the applicants Schutte and Van Gerwe, whose loss of “latent capacity” was minimal, would have to be dismissed in their entirety. The proceedings were adjourned so that the loss suffered by the applicants Lohuis and Van den Heuvel could be established.
26. In a second interlocutory judgment, delivered on 3 July 2007, the Arnhem Court of Appeal found it established that the applicant Lohuis had suffered a disproportionate loss in that he had lost his 34% “latent capacity”, for which he had received no compensation. It also found it established that the applicant Van den Heuvel had lost “latent capacity” in an amount of 25% of his former entitlement. However, he had obtained this “latent capacity” by taking over dung production quotas attached to land which he had purchased; hereafter, the discussion centred on whether he had paid a consideration for these quotas or not. It adjourned the proceedings to hear any witnesses brought forward by the parties and obtain a report by an expert.
27. The Arnhem Court of Appeal delivered its final judgment on 17 November 2009, after having heard witnesses and taken cognisance of a report by an expert. It found that the applicant Van den Heuvel had lost “latent capacity” in an amount of 25%, but had been able largely to set off his loss against capacity tied to the land which he had purchased. With respect to the 25% reduction provided for by the Pig Farming Restructuring Act, he was affected no worse than any other pig farmer; he could therefore not be said to have been made to bear an “individual and excessive burden”.
28. The Arnhem Court of Appeal quashed the judgment of the Regional Court. It held that the State had committed a tort in respect of the applicants Lohuis and Lohuis-Voshaar and was therefore liable for any damage thereby caused, the amount of which would need to be assessed and settled in due course. It dismissed the other applicants’ appeals.
29. The State lodged an appeal on points of law against the Court of Appeal’s judgment.
30. The applicants Lohuis and Lohuis-Voshaar lodged a cross-appeal. The other applicants did not, having been advised by counsel that an appeal lodged by them had no prospects of success.
31. The applicants Lohuis and Lohuis-Voshaar argued that the Court of Appeal ought, on reflection, to have given favourable consideration to their argument that they had suffered a “deprivation of possessions” within the meaning of Article 1 of Protocol No. 1.
32. The Supreme Court gave judgment on 2 September 2011. It dismissed the State’s appeal and the cross-appeal by the applicants Lohuis and Lohuis-Voshaar in their entirety. In dismissing the latter, it referred to its own judgment of 16 November 2001, which was binding on the Court of Appeal.
33. The Netherlands Civil Code (Burgerlijk Wetboek) defines “property” (goederen) as “all things and all other proprietary rights (vermogensrechten)” (Article 3:1). “Proprietary rights” within the meaning of that Article are “rights which, either separately or together with another right, are transferable, or which purport to give the person entitled (rechthebbende) material benefit, or which are obtained in exchange for present or future material benefit” (Article 3:6). Article 3:228 provides that all transferable property can be encumbered (i.e. as collateral) with a pledge (pandrecht) or a mortgage (hypotheek).


ITEMID: 001-76690
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SAVOIA and BOUNEGRU v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The first applicant, Mr Alessandro Savoia, is an Italian national who was born in 1973. The second applicant, Ms Svetlana Bounegru, is a Moldovan national who was born in 1983. The couple live in Rome. They are represented before the Court by Mr G. Di Pietro, a lawyer practising in Rome.
The first applicant wanted to marry the second applicant in Italy. On 5 July 2004 he contacted the Italian Embassy in Moldova and the Ministry of Foreign Affairs, in order to acquire information about the procedure to obtain a visa for marriage purposes.
The latter institutions replied by sending information related to the application for a tourist visa.
On 23 August 2004 all relevant documents satisfying the requirements of the tourist visa were sent to the Embassy. According to the applicants, it was apparent from the information they were given that no visa for marriage purposes could be requested.
On 2 September 2004 the Italian Embassy in Moldova informed the applicants that their request would be rejected. The applicants were told that no visas had been issued in favour of Moldovan nationals for over five years.
On 23 September 2004, after all the documents necessary for the marriage had been supplied and verified, the municipality of Rome issued the couples’ marriage bans. The applicants’ lawyer made a request to the competent Italian authorities for the second applicant’s visa for marriage purposes. He did not receive any replies.
As the second applicant was pregnant, the first applicant went to Moldova in order to celebrate the marriage over there.
On 5 October 2004 the applicants got married in Moldova.
On 15 October 2004 the Italian authorities granted the second applicant a visa in her quality of an Italian national’s family member. The couple moved to Rome and started to reside there.
On 19 October 2004 the applicants presented to the Police station in Rome a request for a residence permit for the second applicant’s family members.
On 7 February 2005 the applicants addressed a registered letter to the Italian Minister of Foreign Affairs. They asked in what way it would be possible to obtain a visa for family members, in order to reunite in Italy the second applicant’s relatives. They were told that it would have been possible to allow the entry in Italy of the mother of the second applicant but not of her brothers.
On 20 February 2005 the applicants requested the Town Council to issue a written declaration stating that the matrimonial home was the residence of the second applicant. However, the Town Council could not accede to this request as the second applicant did not possess a residence permit.
On 21 February 2005 the applicants requested that the second applicant be granted Italian citizenship. Their request was rejected as according to Italian law, citizenship could be granted either after a marriage and six months of residence or after three years of marriage. Moreover, the processing of the citizenship request would have required seven hundred and thirty days.
According to the information provided by the applicants on 16 February 2005, on that date the second applicant had not obtained a residence permit in Italy.