CASE OF THOMANN v. SWITZERLAND

1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 12 April 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 17602/91) lodged with the Commission under Article 25
(art. 25) by a Swiss national, Mr Martin Thomann, on 5 December 1990.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Switzerland
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 para. 1 of the Convention
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
3. The Chamber to be constituted included ex officio
Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr C. Russo,
Mr J. De Meyer, Mr M.A. Lopes Rocha, Mr J. Makarczyk and Mr P. Jambrek
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Swiss
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's and the applicant's memorials
on 2 November 1995. On 24 November 1995 and 4 January 1996 the
Commission produced various documents, as requested by the Registrar
on the President's instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 January 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
Mr P. Boillat, Head of the European Law
and International Affairs Section,
Federal Office of Justice, Agent,
Mr F. Schürmann, European Law and
Federal Office of Justice, Adviser;
The Court heard addresses by Mr Pellonpää, Ms Pauen and
I. Particular circumstances of the case
6. Mr Martin Thomann, a Swiss national who was born in 1949, lives
7. On 13 December 1988 the prosecutor's office of the Canton of
Basel-Stadt brought a prosecution (Anklageerhebung) against the
applicant on charges of aggravated fraud and attempted aggravated
fraud, having had previous convictions for the same offence
(wiederholter und fortgesetzter vollendeter und versuchter, teils
gewerbsmäßiger Betrug), negligent bankruptcy (leichtsinniger Konkurs)
and failure to keep accounts (Unterlassung der Buchführung).
8. The cantonal Criminal Court (Strafgericht) set down the case
for trial from 10 to 17 May 1989. However, it was not possible to
serve the summons to appear (Vorladung zur Verhandlung) on the
applicant, because he had quit his home without leaving an address.
An arrest warrant was accordingly issued, indicating that the trial
could take place at any time, even if the applicant was not present.
9. The court, composed of Judges Metzener, Becht-Gutmann and
Memminger, sat from 10 to 17 May 1989 in the applicant's absence. He
was arrested on 16 May 1989 and on 17 May attended court for the
delivery of the judgment, whereby he was sentenced to two and a half
years' imprisonment and fined five hundred Swiss francs for fraud and
attempted fraud both in the exercise of an occupation (gewerbsmäßiger
Betrug), negligent bankruptcy and failure to keep accounts.
B. The application for a retrial
10. The applicant immediately sought a retrial (see paragraph 24
below). The Criminal Court allowed his request and decided accordingly
not to provide a written statement of reasons for its judgment given
in absentia (Kontumazurteil). It then commenced proceedings under the
ordinary procedure and set down a new trial for 30 October 1989.
11. On discovering that the composition of the Criminal Court would
be identical to that of the court that had convicted him in absentia,
on 29 June 1989 Mr Thomann lodged an application (Ausstandsbegehren
wegen Befangenheit) challenging its three members. On 22 August the
challenge was dismissed by the same three judges.
On an appeal (Beschwerde) by the applicant, the Court of Appeal
(Apellationsgericht) of the canton set aside that decision on
5 October 1989 and directed that the Criminal Court rule on the
applicant's challenge without the judges concerned being present. The
court, composed of Judges Kunz, Stephenson and Stamm, dismissed the
12. Relying on Article 58 of the Federal Constitution and Article 6
para. 1 of the Convention (art. 6-1), the applicant lodged a new appeal
(Beschwerde) with the cantonal Court of Appeal, which dismissed it on
The Court of Appeal took the view that the decision to allow
a retrial under Article 267 para. 2 of the Code of Criminal Procedure
(see paragraph 24 below) was not an avenue of appeal in the strict
sense, but a decision to rehear the case (Restitution), whose sole
effect was to set aside a judgment given in absentia and to open a
trial under the ordinary procedure (gewöhnliches Verfahren), which
would result in a new judgment replacing the earlier one. In the
absence of statutory provisions on that point, the practice was for the
judge who had given the first judgment to hear the application for a
retrial and to sit in the new trial under the ordinary procedure. The
explanation of this practice was that the retrial did not entail the
exercise of functions that were different from those exercised by the
first judge or any criticism of his decision. Its sole purpose was to
supplement the facts on which the first judgment had been based. In
those circumstances, it could hardly be contended that there was a risk
of a lack of impartiality on the part of such a judge when he retried
The Court of Appeal considered in addition that judges giving
judgment in absentia were perfectly well aware that their decisions
were open to an application for a retrial. In the case in question the
judgment appealed had been given by a panel of three judges - a
circumstance which in itself reduced the risk of breaches of the duty
of impartiality - who had, moreover, agreed to set aside their own
decision, thus showing their opinion that Mr Thomann should not suffer
as a result of his absence from the first trial.
13. On 2 May 1990 the Federal Court dismissed the applicant's
public-law appeal (staatsrechtliche Beschwerde).
The Federal Court referred to its relevant case-law and
observed, inter alia, that the members of a panel of three judges did
not lose their impartiality merely because they had already given
judgment in absentia in the same case, provided that the outcome of the
case appeared to remain open and did not give the impression of being
predetermined (Anschein der Vorbestimmtheit). To establish whether
this was in fact the case, it was necessary to have regard to the
factual and the procedural circumstances of the two trials.
Given the importance of the presence of the defendant in person
before a criminal court, it could never be ruled out that a case heard
in the absence of the accused might have reached a different conclusion
if he had been present at the trial. Thus the cantonal Codes of
Criminal Procedure which allowed trial in absentia all empowered a
person convicted in such proceedings to seek the reopening of the trial
under the ordinary procedure. In contrast to an appeal, the purpose
of this remedy was not to conduct a review (Überprüfung) of the first
judgment. It took the case back to the trial stage so that it could
be entirely reheard at a new trial resulting in a new judgment.
Admittedly the judges had to deal with the same issues, namely
the accused's guilt and the appropriate sentence. However, as the
ordinary procedure made it possible to carry out certain steps, such
as examination and cross-examination, which the accused's absence had
precluded, the case was wholly reconsidered. Its outcome was therefore
open, as the court might very well arrive at a different conclusion
from its earlier decision. The contrary view expressed by Mr Thomann
on this point was based solely on his subjective impressions which,
according to the case-law, could not be taken into account. The
decisions that he invoked were irrelevant because they concerned an
issue unrelated to the case before the court, namely the concurrent
exercise of different functions, in particular that of trial judge and
Moreover, acceptance of the applicant's argument would invite
abuse because in the cantons where an application for a retrial was not
subject to objective conditions, it would be sufficient for an accused
to fail to appear for trial where he wished to have a judge of whom he
did not approve removed. He would therefore be placed at an advantage
in relation to an accused who did appear. It would also cause delays
in the proceedings, which would be aggravated by the fact that on each
occasion new judges would have to study the case.
C. The retrial under the ordinary procedure
14. The retrial took place from 26 September to 3 October 1990 in
Basel-Stadt Criminal Court, composed of Judges Metzener, Becht-Gutmann
and Memminger; the court took evidence from the applicant, who was
assisted by an officially appointed lawyer, and from several witnesses.
On 3 October Mr Thomann was sentenced to two years and three months'
imprisonment and fined five hundred Swiss francs for fraud and
attempted fraud in the exercise of an occupation, negligent bankruptcy
15. On 11 July 1991 the cantonal Court of Appeal acquitted
Mr Thomann on certain counts relating to the fraud charge and reduced
his prison sentence to two years' imprisonment.
On 9 December 1992 the Federal Court dismissed the applicant's
public-law appeal against that judgment.
16. An accused who appears for trial is first questioned as to his
personal circumstances and then allowed to make a short statement on
the indictment. The President of the Court then examines him in detail
on the charges brought against him (Article 178 of the Basel-Stadt Code
of Criminal Procedure (Strafprozeßordnung)).
17. The accused may be confronted with witnesses (Article 179) and
call other witnesses (Article 181). After the prosecuting authority
has made its submissions and any victim that may be participating in
the proceedings has made a statement, the accused may put the defence
case; he always has the last word, after the prosecutor has had an
opportunity to reply (Articles 185 and 186).
18. With the exception of the prosecuting authority, the parties
to criminal proceedings who have an interest in doing so may appeal
against the first-instance decision, in which case the Court of Appeal
rehears the whole case (second sentence of Article 236).
B. Procedure in proceedings conducted in absentia
19. In so far as possible, the preliminary investigation of a
suspect who is absent must be conducted with the same degree of
thoroughness as if he were present. In particular, witnesses with
relevant testimony must be heard (Article 260).
20. A person who is absent who has not been heard on the charges
brought against him may be committed for trial (öffentliche Anklage)
only if he has not been heard through his own fault and if, despite his
absence, it appears that the trial will result in a safe verdict
21. Where a person who is absent is committed for trial or a person
who is summoned to appear fails to do so without a valid excuse, the
President of the criminal court (Strafgerichtspräsident) orders that
the trial is to proceed in absentia (Kontumazialverhandlung). This is
indicated in the documents relating to the search and inquiry measures
taken to find the person concerned (Article 262 para. 1).
22. If the accused cannot be brought to the hearing, the relevant
documents of the investigation file are given to the members of the
court or are read out during the trial. The court gives judgment on
the basis of the file, after having heard the parties who are present
(Article 263 para. 1). The President may, of his own motion or at the
request of a party, order that evidence be taken from witnesses,
experts or any other persons (Article 263 para. 2).
23. If there is insufficient evidence to secure the accused's
conviction, the proceedings are stayed (Article 264 para. 1). On the
other hand, where the court convicts the accused, it must in its
judgment given in absentia (Kontumazurteil) determine the measures that
are to be taken as soon as the accused is arrested. The judgment must,
in so far as possible, be executed immediately (Article 264 para. 2).
24. A person convicted in absentia is formally notified thereof as
soon as he is brought before the relevant court or appears of his own
free will (Article 267 para. 1). He can apply for a retrial (Revision
des Verfahrens) in the ten days following notification (Article 267
para. 2). The application will only succeed if he shows that he did
not receive the summons or that, through no fault of his own, he was
prevented from appearing (Article 267 para. 3). If the application is
allowed, the case is retried under the ordinary procedure and a new
judgment is given (Article 267 para. 4); otherwise, or when no
application for a retrial is made, the judgment given in absentia
becomes final (Article 267 para. 5).
PROCEEDINGS BEFORE THE COMMISSION
25. In his application (no. 17602/91) lodged with the Commission
on 5 December 1990, Mr Thomann complained that he had been convicted
on 3 October 1990 by a court that was not impartial for the purposes
of Article 6 para. 1 of the Convention (art. 6-1).
26. The Commission declared the application admissible on
5 September 1994. In its report of 2 March 1995 (Article 31)
(art. 31), it expressed the opinion, by twenty votes to four, that
there had been no violation of Article 6 para. 1 (art. 6-1). The full
text of the Commission's opinion and of the two dissenting opinions
contained in the report is reproduced as an annex to this judgment (1).
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-III), but a copy of the Commission's report is
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION
27. The applicant complained of a breach of Article 6 para. 1 of
the Convention (art. 6-1), which, in so far as is relevant to the
present case, reads as follows:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by an ...
Relying, inter alia, on the judgments of De Cubber v. Belgium
of 26 October 1984 (Series A no. 86) and Padovani v. Italy of
26 February 1993 (Series A no. 257-B), he contended that the criminal
court that had tried him on 3 October 1990 could not be regarded as
impartial because it had been composed of judges who had already
convicted him in absentia on 17 May 1989. Even before he appeared
before them at the retrial, they had therefore already formed their
opinion as to his guilt. This had been all the more prejudicial to him
as the facts of the case were largely uncontested, it being essentially
the assessment of their gravity that was in dispute. The retrial had
thus been conducted without due regard to the importance to be attached
to the impartiality of a tribunal and to appearances in this field,
and, taken as a whole, had therefore been merely a purely formal
repetition of the earlier proceedings.
28. The Government maintained that in giving judgment in absentia
the judges had known perfectly well that the grounds for their decision
had been incomplete. Accordingly, by allowing the applicant's
application for a retrial (see paragraph 10 above) and by taking
evidence from him and from several witnesses during the retrial
proceedings, they had afforded Mr Thomann, as soon as he had
reappeared, an entirely new trial, with the result that they had even
reduced the sentence initially imposed (see paragraph 14 above). That
proved that they had indeed remained impartial.
In addition if the criminal court for the retrial had had to
be composed differently, the applicant would have been placed at an
advantage in relation to defendants who complied with their summons to
appear. He would have had the benefit of an additional procedure
besides the other appeals lodged by him in the cantonal Court of Appeal
and the Federal Court (see paragraph 15 above). Moreover, the
applicant had been assisted by a lawyer throughout the proceedings that
followed his application for a retrial being allowed (see paragraph 10
29. The Commission subscribed in substance to the Government's
30. The Court recalls that, when the impartiality of a tribunal for
the purposes of Article 6 para. 1 (art. 6-1) is being determined,
regard must be had not only to the personal conviction and behaviour
of a particular judge in a given case - the subjective approach - but
also to whether it afforded sufficient guarantees to exclude any
legitimate doubt in this respect (see, among other authorities, the
Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and
Decisions 1996-II, p. 356, para. 31).
31. As regards the subjective aspect of such impartiality, the
Court notes that there was nothing to indicate in the present case any
prejudice or bias on the part of Judges Metzener, Becht-Gutmann and
Memminger and that moreover the applicant did not level any criticism
at them in this respect. It cannot but presume their personal
impartiality (see the Bulut judgment cited above, p. 356, para. 32).
There thus remains the objective test.
32. In this connection the Court observes that the instant case
does not concern the successive exercise of different judicial
functions, but judges who sat twice in the same capacity.
33. In its judgments in the cases of Ringeisen v. Austria and
Diennet v. France, the Court held that "it cannot be stated as a
general rule resulting from the obligation to be impartial that a
superior court which sets aside an administrative or judicial decision
is bound to send the case back to a different jurisdictional authority
or to a differently composed branch of that authority". The Court
observed that "no ground for legitimate suspicion can be discerned in
the fact that" judges who "had taken part in the first decision" also
participate in the second (see the judgments of respectively
16 July 1971, Series A no. 13, p. 40, para. 97, and 26 September 1995,
Series A no. 325-A, p. 17, para. 38).
34. The applicant argued that this case-law concerned the situation
of judges to whom a case was remitted after a decision had been set
aside or quashed by a higher court. In such circumstances they no
longer had a "wide margin of appreciation", which made it less shocking
that they should retry the case. In the present case, on the other
hand, the members of the Criminal Court had retained complete freedom
of decision in the retrial. In addition, they had all three already
convicted Mr Thomann in absentia, whereas in the Ringeisen and Diennet