Lutta Heinz gegen Schweiz

Nichtzulassungsentscheid no. 46220/99, 27 septembre 2001

The European Court of Human Rights (Second Section), sitting on 27 September 2001 as a Chamber composed of

Mr C.L.Rozakis, President,

Mr A.B. Baka,

Mr L. Wildhaber,

Mr G. Bonello,

Mrs V. Strá?nická,

Mr P. Lorenzen,

Mr A.Kovler, judges,

and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced on 14 December 1998 and registered on 17 February 1999,

Having deliberated, decides as follows:

The applicant, Heinz Lutta, is a Swiss national born in 1950 who resides in Bäch in Switzerland. Before the Court he is represented by Mr M. Ziegler, a lawyer practising in Lachen.

The facts of the case as submitted by the applicant may be summarised as follows.

Criminal proceedings were instituted against the applicant on account of water pollution. During the course of the investigations he was remanded in custody for a period of three days. On 2 May 1994 the Horgen District Court(Bezirksgericht) convicted the applicant of various charges of having contravened the Environment Act (Umweltschutzgesetz) and the Protection of Waters Act (Gewässerschutzgesetz). The conviction was confirmed upon appeal by the Court of Appeal (Obergericht) of the Canton of Zürich on 23 September 1996 which sentenced the applicant to three months' imprisonment, suspended on probation, a fine of 5,000 Swiss francs (CHF), and damages of CHF 1,500.10.

The applicant then filed two pleas of nullity(Nichtigkeitsbeschwerde), one with the Court of Cassation (Kassationsgericht) of the Canton of Zürich in which he complained of various procedural deficiencies, the other with the Federal Court (Bundesgericht) in which he complained of his conviction. On 28 October 1997 the Court of Cassation partly upheld the applicant's plea of nullity. In particular, it found that the Horgen District Court, contrary to Article 6 § 1 of the Convention, had not pronounced its judgment publicly; however, the Court of Cassation considered it unnecessary for this reason to quash the previous decision as this would unnecessarily prolong the proceedings.

Against the decision of the Court of Cassation the applicant filed on 15 December 1997 a public law appeal(staatsrechtliche Beschwerde) with the Federal Court. Therein, he complained, inter alia, that the Court of Cassation had not conducted an oral hearing and had disregarded certain submissions of his; that it had failed to transmit one submission of a lower instance to him for observation; that it had failed to draw the necessary conclusions from the fact that the judgment of the Horgen District Court had not been pronounced publicly; that a District Attorney who had ordered the applicant's detention on remand had breached Article 5 § 3 of the Convention; that certain District Court judges had been biased; and that previous instances had in various respects incorrectly assessed the evidence. In his public law appeal the applicant also requested all submissions in the proceedings to be transmitted to him for his observations.

The Federal Court transmitted a copy of the applicant's public law appeal to the Court of Cassation of the Canton of Zürich and to the Zürich Public Prosecutor's Office. The latter filed no observations, whereas the Court of Cassation submitted a reply, numbering three pages, on 2 April 1998. Therein it explained, inter alia, why the applicant could in respect of one issue no longer be considered a victim, and why certain other submissions were new and could not therefore be considered by the Federal Court. It pointed out that the Court's jugment in the Nideröst Huber -case (judgment of 18 February 1997, Reports 1997-I, p. 101) would, if applied consistently, prolong proceedings ad infinitum, and it also explained its point of view in respect of the complaint under Article 5 § 3 of the Convention.

On 22 April 1998 the Federal Court transmitted a copy of the observations of the Court of Cassation to the applicant. By letter of 24 April 1998 the applicant filed a request with the Federal Court, asking for the opportunity to reply to the observations of that court, though it appears that he received no reply thereto.

In two judgments of 3 June 1998 the Federal Court dealt with the applicant's plea of nullity and public law appeal. Both judgments were served on the applicant on 15 June 1998.

In the judgment of 3 June 1998 concerning the applicant's plea of nullity, the Federal Court considered the various relevant legal provisions and concluded that the applicant had been incorrectly convicted. As a result, it quashed the judgment of the Court of Appeal of the Canton of Zürich of 23 September 1996. The applicant was awarded CHF 2,200 as compensation for costs.

In the other judgment of 3 June 1998, numbering 29 pages, the Federal Court dismissed the applicant's public law appeal, while imposing CHF 2,000 as court costs on him. In its judgment it dismissed the applicant's complaints that he had not had an oral hearing before the Court of Cassation and that his subsequent submissions had not been considered. To the extent that the applicant had not been able to comment before the Court of Cassation on the observations of a lower instance, the Federal Court considered a reply unnecessary as the submissions had been "completely irrelevant"(völlig belanglos). Insofar as the applicant complained about the consequences of the lack of public pronouncement, the Federal Court found that the applicant had insufficiently substantiated this complaint, and that in any event it found the Court of Cassation's reasoning pertinent. The Federal Court also dismissed the applicant's complaints about the taking of evidence.

Proceedings were then resumed before the Court of Appeal of the Canton of Zürich which on 19 October 1998 acquitted the applicant of the various offences.

1. The applicant complains under Article 6 § 1 of the Convention that, contrary to the Court's case-law expressed in the Nideröst Huber case (see the judgment cited above), the Federal Court did not offer him the possibility to reply to the submissions of the Court of Cassation. It is submitted that the Federal Court, in its judgment of 3 June 1998 on the applicant's public law appeal, referred in substance to the submissions of the lower instance.

2. Also under Article 6 § 1 of the Convention the applicant complains that the Federal Court on 3 June 1998, after upholding his plea of nullity and instead of striking his public law appeal off the list of cases, unnecessarily dealt in substance with it and dismissed it, thus bringing about court costs of CHF 2,000.

3. The applicant complains that the imposition of court costs in the Federal Court's judgment of 3 June 1998 concerning his public law appeal breached Article 6 § 2 of the Convention, as the Federal Court in fact referred to his guilt.

The applicant complains under Article 6 § 1 of the Convention that the Federal Court did not offer him the possibility to reply to the submissions of the Court of Cassation. Under this provision he furthermore complains that the Federal Court did not strike his public law appeal off the list of cases. The applicant also complains that the imposition of court costs in the Federal Court's judgment of 3 June 1998 concerning his public law appeal breached Article 6 § 2 of the Convention.

Article 34 of the Convention provides, insofar as relevant:

It is true that in the present case the Federal Court on 3 June 1998 dealt in substance with the applicant's public law appeal and then dismissed it. This decision the applicant is now contesting before the Court. However, the Court also notes that on 3 June 1998, in a separate decision, the Federal Court upheld the applicant's plea of nullity on the ground that the applicant had been incorrectly convicted, and it quashed the judgment of the Court of Appeal of the Canton of Zürich of 23 September 1996. As a result, proceedings were resumed before the Court of Appeal which on 19 October 1998 acquitted the applicant.

In the Court's opinion, any defects which may have arisen during the criminal proceedings instituted against the applicant must be considered as having been rectified by the finding of the Federal Court according to which the applicant had been incorrectly convicted, and by his subsequent acquittal by the Court of Appeal (see application no. 18763/91, decision of 12 January 1994, DR 76-A, p. 36; application no. 8083/77, decision of 13 March 1980, DR 19, p. 226).

Thus, the applicant has sought and gained redress for his complaints about his criminal conviction before the Swiss courts. It follows that he can not now claim to be the "victim" of a violation of the Convention as required by Article 34 of the Convention.

The application is therefore manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis

Registrar President