Judgment (Merits) of European Court of Human Rights, February 22, 1984 (case CASE OF SUTTER v. SWITZERLAND)

Judge:N\/A
Defense:SWITZERLAND
Resolution Date:February 22, 1984
SUMMARY

No violation of Art. 6-1

 
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COURT (PLENARY)

CASE OF SUTTER v. SWITZERLAND

(Application no. 8209/78)

JUDGMENT

STRASBOURG

22 February 1984

In the Sutter case,

The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 48 of the Rules of Court[] and composed of the following judges:

             Mr.               R. Ryssdal, President,

             Mr.               J. Cremona,

             Mr.               Thór Vilhjálmsson,

             Mr.               W. Ganshof van der Meersch,

             Mrs.               D. Bindschedler-Robert,

             Mr.               L. Liesch,

             Mr.               F. Gölcüklü,

             Mr.               F. Matscher,

             Mr.              J. Pinheiro Farinha,

             Mr.               L.-E. Pettiti,

             Mr.               B. Walsh,

             Mr.               R. Macdonald,

             Mr.               C. Russo,

             Mr.               R. Bernhardt,

             Mr.               J. Gersing,

and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 24 March and 25 October 1983 and 23 January 1984,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

  1.    The present case was referred to the Court by the European Commission of Human Rights ("the Commission") and the Government of the Swiss Confederation ("the Government"). The case originated in an application (no. 8209/78) against Switzerland lodged with the Commission in 1978 under Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Swiss national, Mr. Peter Sutter.

  2.    The Commission’s request and the Government’s application were lodged with the registry of the Court within the period of three months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47) - the former on 17 May and the latter on 8 July 1982. The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Swiss Confederation recognised the compulsory jurisdiction of the Court (Article 46) (art. 46) and the application to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The request and the application sought a decision from the Court as to the existence of violations of Article 6 para. 1 (art. 6-1).

  3.    The Chamber of seven judges to be constituted included, as ex officio members, Mrs. D. Bindschedler-Robert, the elected judge of Swiss nationality (Article 43 (art. 43) of the Convention), and Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b) of the Rules of Court). On 28 May 1982, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. W. Ganshof van der Meersch, Mr. L. Liesch, Mr. E. García de Enterría, Sir Vincent Evans and Mr. R. Bernhardt (Article 43 in fine (art. 43) of the Convention and Rule 21 para. 4).

  4.    Mr. Wiarda, who had assumed the office of President of the Chamber (Rule 21 para. 5), ascertained, through the Registrar, the views of the Agent of the Government and the Delegates of the Commission regarding the procedure to be followed. On 22 June, he decided that the Agent should have until 30 September 1982 to file a memorial and that the Delegates should be entitled to reply in writing within two months from the date of the transmission of the Government’s memorial to them by the Registrar.

  5.    On 29 June 1982, the Chamber decided under Rule 48 to relinquish jurisdiction forthwith in favour of the plenary Court.

  6.    The Government’s memorial was received at the registry on 30 September. On 10 November, the Secretary to the Commission informed the Registrar that the Delegates would submit their own observations at the hearings. On 20 December, he transmitted to the Registrar the applicant’s claims under Article 50 (art. 50).

  7.    After consulting, through the Registrar, the Agent of the Government and the Delegates of the Commission, the President directed on 20 December 1982 that the oral proceedings should open on 21 March 1983.

  8.    Mr. Wiarda being unable to attend, Mr. Ryssdal, the Vice-President of the Court, assumed the office of President (Rule 9, read in conjunction with Rules 24 para. 1 and 48 para. 3).

  9.    The hearings were held in public at the Human Rights Building, Strasbourg, on 21 March. Immediately before they opened, the Court had held a preparatory meeting; it had authorised the person assisting the Delegates of the Commission to use the German language (Rule 27 para. 3).

    There appeared before the Court:

    - for the Government:

                 Mr. J. Voyame, Director

                                             of the Federal Office of Justice,               Agent,

                 Mr. G. Messmer, Judge

                                             at the Federal Court,

                 Mr. R. Barras, Chief Military Prosecutor,

                 Mr. O. Jacot-Guillarmod, Federal Office of Justice,

                 Mr. M. Rusca, Federal Office of Justice,               Counsel;

    - for the Commission:

                 Mr. S. Trechsel,

                 Mr. A. Weitzel,               Delegates,

                 Mr. L. Minelli, the applicant’s representative

                                             before the Commission, assisting the Delegates (Rule 29              

                                             para. 1, second sentence, of the Rules of Court).

    The Court heard addresses by Mr. Trechsel, Mr. Weitzel and Mr. Minelli for the Commission and by Mr. Voyame and Mr. Barras for the Government, as well as their replies to its questions and a question put by one of its members. On 15 December 1983, the Commission filed two documents which the Registrar, acting on the President’s instructions, had asked it to produce.

    AS TO THE FACTS

    I.   THE PARTICULAR CIRCUMSTANCES OF THE CASE

  10.    At the time of the events giving rise to this case, Mr. Peter Sutter, a Swiss national born in 1949, was a student and resident in Basel.

  11.    During refresher courses (Wiederholungskurse) organised in 1974 and 1975 as part of ordinary military obligations, he was subjected to five and seven days’ strict arrest for refusing to comply with Article 203 bis of the service regulations, relating to hair-cuts.

  12.    Shortly before the beginning of the 1976 refresher course, the applicant received a registered letter from his unit commander instructing him to report for the course with a regulation hair-cut. He nevertheless presented himself on 28 August 1976 with his hair longer than authorised and refused to obey the officer’s verbal order to have it cut.

  13.    On 8 November 1976, the Military Prosecutor (auditeur militaire) drew up a "bill of indictment" (Anklageschrift) against Mr. Sutter, charging him with repeated insubordination and, subsidiarily, failure to observe service regulations (Articles 61 and 72 of the Military Criminal Code).

  14.    On 16 May 1977, at the close of a public hearing, Divisional Court no. 5 delivered in public a judgment sentencing the applicant to ten days’ imprisonment for the two offences.

    Mr. Sutter’s defence counsel had unsuccessfully requested the Divisional Court to decline jurisdiction on the ground that it lacked the independence and impartiality required by Article 6 (art. 6) of the...

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