ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 29.04.1988"БЕЛИЛОС (belilos) ПРОТИВ ШВЕЙЦАРИИ" [рус. (извлечение), англ.]

to take part in the proceedings pending before the Court and designated the lawyer who would represent her (Rule 30).
3. The Chamber of seven judges to be constituted included ex officio Mrs. D. Bindschedler-Robert, the elected judge of Swiss nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 26 September 1986, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr. L.-E. Pettiti, Mr. B. Walsh, Mr. R. Bernhardt, Mr. A. Spielmann and Mr. N. Valticos (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).
4. Mr. Ryssdal, who had assumed the office of President of the Chamber (Rule 21 § 5), consulted - through the Registrar - the Agent of the Government, the Delegate of the Commission and the lawyer of the applicant on the need for a written procedure (Rule 37 § 1). In accordance with his orders, the following documents were received by the registry:
- the applicant"s memorial, on 22 December 1986;
- the Government"s memorial, on 24 February 1987;
- a supplementary memorial from the applicant, on 4 May; and
- a supplementary memorial from the Government, on 12 June.
In a letter received by the Registrar on 23 April 1987, the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing.
5. On 21 May, the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 50).
6. Having consulted - through the Registrar - the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President of the Court directed on 27 May that the oral proceedings should commence on 26 October 1987 (Rule 38).
7. The hearing was held in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand.
There appeared before the Court:
- for the Government
Mr. J. Voyame, Director of the Federal Office of Justice, Agent,
Mr. M. Krafft, Ambassador, Head of the Directorate of International Law, Department of Foreign Affairs,
Prof. L. Wildhaber, University of Basle,
Mr. P. Rossy, Department of Justice and Legislation, Canton of Vaud,
Mr. O. Jacot-Guillarmod, Head of the International Affairs Department, Federal Office of Justice, Counsel;
- for the Commission
Mr. J.A. Frowein, Delegate;
- for the applicant
Mr. J. Lob, avocat, Counsel.
The Court heard addresses by Mr. Voyame, Mr. Krafft and Prof. Wildhaber for the Government, by Mr. Frowein for the Commission and by Mr. Lob for Mrs. Belilos, who also addressed the Court, as well as their replies to its questions.
8. On 9 December, the applicant provided particulars of some of her costs and expenses, as the Registrar had requested on 4 November on behalf of the Court. The Government and the Delegate of the Commission made observations on this matter, and these reached the registry on 18 January and 25 February 1988 respectively.
AS TO THE FACTS
I. The circumstances of the case
9. Mrs. {Marlene Belilos}, who is a Swiss citizen, lives in Lausanne and was a student there at the material time.
1. The Lausanne Police Board
10. In a report of 16 April 1981, the Lausanne police laid an information against her for having contravened the municipality"s General Police Regulations by having taken part in a demonstration in the streets of the city on 4 April for which permission had not been sought in advance. The march had been organised by the "Lausanne bouge" ("Lausanne on the move") movement, which on the preceding days had distributed leaflets calling on people to join the demonstration, and some 60 or 70 people had taken part; they were requesting that the municipality should provide an autonomous youth centre.
At a sitting held on 29 May, the municipal Police Board, in the applicant"s absence, imposed on her a fine of 200 Swiss francs (CHF).
11. Mrs. Belilos lodged an application under sections 36 et seq. of the Vaud Municipal Decisions Act of 17 November 1969 to have that decision set aside, and the Police Board held an initial hearing on 14 July. After reading out the police report, it heard the defendant and then the policemen who had laid the information. In view of the applicant"s explanations, the Board adjourned its investigation of the case to a later date in order to be able to hear a witness. On 26 August, it gave Mrs. Belilos a further hearing, and also heard evidence from her former husband as a witness. He stated that at the material time he was with his ex-wife in a {Lausanne cafe}, where he had handed over to her the maintenance payment for their child.
12. The Police Board gave its decision on 4 September "without the interested parties being present". In the "As to the facts" part of its decision, it described the convening, the course and the consequences of the relevant demonstration; it went on to list the allegations made by Mrs. Belilos, who inter alia challenged the legitimacy of the body giving judgment and denied that she had taken part in the demonstration; thirdly, it mentioned the evidence given by the defendant"s ex-husband; and, lastly, it noted that the policemen had confirmed their report and categorically denied the applicant"s claim that she had not taken part.
In the "As to the law" part of its decision the Police Board noted that its jurisdiction could not be disputed and it concluded that it had "satisfied itself in the course of its inquiries that the defendant [had] indeed participated in the demonstration on 4 April 1981". Having regard to the fact, on the one hand, that Mrs. Belilos had not played an active role but, on the other hand, that this was not a first offence, the Board reduced the fine to 120 CHF; it also ordered her to pay costs of 22 CHF.
The decision was notified to the applicant by registered letter on 15 September.
2. The Criminal Cassation Division of
the Vaud Cantonal Court
13. Mrs. Belilos applied to the Criminal Cassation Division of the Vaud Cantonal Court to have that decision declared null and void. She claimed principally that in view of the requirements of Article 6 (art. 6) of the Convention, the Police Board had no power to make a determination of the disputed offence; and in any event, she asked the court to hear her former husband and to redetermine the facts fully. The Criminal Cassation Division dismissed the appeal on 25 November 1981, holding:
"(...)
The applicant argued that the decision was not compatible with Art. 6 (art. 6) of the European Convention on Human Rights (ECHR), which enshrines the right to a hearing by an independent and impartial tribunal established by law, and that the reservations made when Switzerland acceded to the Convention did not allow an administrative authority, a fortiori where it was an agency of the executive that was judge in its own cause, to determine a criminal charge, the judicial review by the Cassation Division being moreover inadequate.
In a judgment of 9 June 1980, in the case of {Marlene Belilos} and Others, this court stated that by virtue of the reservations made by Switzerland, proceedings before an administrative authority relating to the determination of a criminal charge were not covered by the obligation to provide a public hearing and to pronounce judgment publicly (see also Cass.: Leonelli, 31 July/16 October 1981; Christinat, 23 May/6 August 1981).
As regards Art. 6 para. 1 (art. 6-1) ECHR, Switzerland made the following declaration (RS [Compendium of Federal Law] O.101, p. 25): "The Swiss Federal Council considers that the guarantee of fair trial in Art. 6, paragraph 1 (art. 6-1), of the Convention, in the determination of ... any criminal charge against the person in question is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities relating to ... the determination of such a charge."
In its communication of 4 March 1974 concerning the Convention for the Protection of Human Rights and Fundamental Freedoms, the Federal Council stated that where the decision taken by an administrative authority could be referred to a court not for a ruling on the merits but solely for review of its lawfulness (pourvoi en {nullite}), the question arose whether that review procedure satisfied the requirements of Art. 6 (art. 6) of the Convention.
It answered this question in the affirmative, as Art. 6 para. 1 (art. 6-1) was intended only to ensure ultimate control by the judiciary, and the judicial element of a fair trial seemed to be sufficiently ensured in Swiss law as the Federal Court had derived from the right to a hearing rules on the administration of justice which corresponded to those listed in Art. 6 (art. 6) of the Convention (FF [Federal Gazette] 1974 I p. 1032, Communication).
The fact that appeal proceedings are in written form without any oral argument or taking of evidence is not contrary to Art. 6 (art. 6) ECHR (Cassation Division of the Federal Court: Risse, 14.09.1981).
The Cassation Division therefore carries out the ultimate control by the judiciary required by the European Convention on Human Rights, subject to the reservations made by Switzerland, even if it cannot hear witnesses.
..."
3. The Federal Court
14. The applicant lodged a public-law appeal against this decision with the Federal Court. In her submission, Switzerland"s interpretative declaration in respect of the Convention (see paragraph 29 below) did not mean that an administrative authority such as the Police Board was empowered to determine the merits of a criminal charge. Such a jurisdiction was conceivable only if judicial review was ultimately available. This was not so in the present case, however, as the Criminal Cassation Division of the Vaud Cantonal Court and the Federal Court had limited powers, which did not normally allow them to review questions of fact (on which the Police Board"s findings were final), for example by examining witnesses. Furthermore, under section 12 of the Vaud Municipal Decisions Act the municipality could delegate its powers to a senior police official, who was an agent of the executive; that being so, the Police Board was acting as judge in its own cause.
15. On 2 November 1982, the Federal Court (1st Public-Law Division) delivered a judgment dismissing the appeal on the following grounds:
"...
2. The guarantee of a fair trial provided for in Article 6 § 1 (art. 6-1) ECHR [European Convention on Human Rights] lays down inter alia that "everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...".
(a) The sole issue raised by the appellant"s complaint is whether Article 6 (art. 6) ECHR precludes proceedings whereby the facts are established by a body such as the Police Board, which is not an independent tribunal. Contrary to that Board"s statement in its ruling of 18 January 1982, the appellant did not claim, even by implication, that the Police Board was in this case an (administrative) body lacking impartiality. In any event, such a complaint was not formulated in terms sufficiently clear with regard to section 90(1)(b) OJ [Federal Judicature Act].
(b) The scope of Article 6 § 1 (art. 6-1) ECHR must be examined in the light of Switzerland"s interpretative declaration, according to which: "the Swiss Federal Council considers that the guarantee of fair trial in Article 6 § 1 (art. 6-1) of the Convention, ... is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities ...". (Article 1 § 1 (a) of the Federal Decree of 3 October 1974 approving the ECHR, RO [Official Collection of Federal Statutes] 1974, 2149.) In its communication of 4 March 1974 to the Federal Assembly, the Federal Council noted that this interpretative declaration was formulated precisely with a view to "cases in which the decision taken by an administrative authority may be referred to a court not for a ruling on the merits but solely for review of its lawfulness (pourvoi en {nullite})", on the basis of the interpretation of Article 6 § 1 (art. 6-1) given by the President of the European Commission of Human Rights (FF 1974 I p. 1032). The Federal Court finds no grounds for departing from that interpretative declaration (ATF [Judgments of the Swiss Federal Court] 107 Ia 167), even though its validity and its scope have been contested by academic writers (D. Brandle, Vorbehalte und auslegende {Erklarungen} zur {europaischen} Menschenrechtskonvention, {Zurich} thesis 1978, pp. 113 - 114). Moreover, the European Court of Human Rights has also acknowledged that Article 6 § 1 (art. 6-1) is complied with in so far as a decision of an administrative authority may be subject to ultimate control by the judiciary, since the guarantee of a fair trial must be assessed having regard to the entire procedure (ATF 98 Ia 238; cf. J. Raymond, "La Suisse devant les organes de la CEDH", in RDS [Revue de droit suisse] 98/1979 II p. 67, and the decisions cited therein; D. Poncet, La protection de {l"accuse} par la Convention {europeenne} des Droits de l"Homme, p. 29, No. 78).
3. The Vaud legislature used the right conferred on cantons by Article 345 § 1(2) CC [Swiss Criminal Code] to allow certain minor offences to be tried by the municipal authority (section 45 of the Local Authorities Act of 28 February 1956; sections 1 et seq. MDA [Municipal Decisions Act]). According to section 41 MDA, judicial review of such municipal decisions is effected by the Cassation Division of the Cantonal Court, which may determine both whether the correct procedure has been followed (in the case of a recours en {nullite} - section 43 MDA) and whether the law has been properly applied (in the case of a recours en {reforme} - section 44 MDA). It does not therefore have full competence to re-examine the facts. However, that is not necessary under Article 6 § 1 (art. 6-1) ECHR provided that appeal lies to a judicial authority which not only reviews the correctness of the procedure - including "whether there are serious doubts as to the facts found" (section 43 (e)) - but may also be called upon to consider complaints of "incorrect application of the law" and of "misuse of discretion in the application of the law" (section 44). The Cantonal Court therefore enjoys a much more extensive power of review than the Federal Court in a public-law appeal, where jurisdiction is restricted to ensuring that a decision is not arbitrary (cf. Schubarth, Die Artikel 5 und 6 (art. 5, art. 6) der Konvention, insbesondere

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