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You are here: BAILII >> Databases >> European Court of Human Rights >> QUARANTA v. SWITZERLAND - 12744/87 [1991] ECHR 33 (24 May 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/33.html Cite as: [1991] ECHR 33

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In the Quaranta case*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court***, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mrs D. Bindschedler-Robert,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr R. Bernhardt,

Mrs E. Palm,

Mr A.N. Loizou,

Mr J.M. Morenilla,

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

Registrar,

Having deliberated in private on 25 January and 23 April

1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 23/1990/214/276. The first number is

the case's position on the list of cases referred to the

Court in the relevant year (second number). The last two

numbers indicate the case's position on the list of cases

referred to the Court since its creation and on the list of

the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which

came into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force

on 1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 6 April 1990 and

then by the Government of the Swiss Confederation ("the

Government") on 27 June 1990, 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.

12744/87) against Switzerland lodged with the Commission under

Article 25 (art. 25) by an Italian national, Mr Claudio Quaranta,

on 18 December 1986. In the proceedings before the Commission

the applicant was identified by the initial "Q."; however, he

subsequently agreed to the disclosure of his identity.

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 Government's application referred to Articles 45,

47 and 48 (art. 45, art. 47, art. 48). The object of the request

and of the application 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. 3 (c) (art. 6-3-c).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30). The Italian Government,

having been informed by the Registrar of their right to intervene

in the proceedings (Article 48 (b) of the Convention and Rule 33

para. 3 (b)) (art. 48-b), did not indicate any intention of so

doing.

3. The Chamber 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 para. 3 (b)). On 26

April 1990, in the presence of the Registrar, the President drew

by lot the names of the other seven members, namely Mr F.

Matscher, Mr. C. Russo, Mr R. Bernhardt, Mr N. Valticos, Mrs E.

Palm, Mr A.N. Loizou and Mr J.M. Morenilla (Article 43 in fine of

the Convention and Rule 21 para. 4) (art. 43). Subsequently Mr

L.-E. Pettiti, substitute judge, replaced Mr Valticos, who was

prevented from taking part in the further consideration of the

case (Rules 22 para. 1 and 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Government, the Delegate of the Commission and the

applicant's representative on the need for a written procedure

(Rule 37 para. 1). In accordance with the order made in

consequence, the Registrar received the applicant's memorial on

16 August 1990 and that of the Government on 16 October.

On 2 January 1991 the Secretary to the Commission informed the

Registrar that the Delegate would submit his observations at the

hearing.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 6 July 1990

that the oral proceedings should open on 21 January 1991

(Rule 38).

On 21 November 1990 the Commission and the applicant lodged

various documents.

6. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Boillat, Head of the European Law and

International Affairs Section, Federal

Office of Justice, Agent,

Mr C. Vautier, a former Vaud cantonal judge,

Mr F. Schürmann, a member of the European Law and

International Affairs Section, Federal Office

of Justice, Counsel;

(b) for the Commission

Mr F. Martinez, Delegate;

(c) for the applicant

Mr J. Lob, avocat, Counsel.

The Court heard addresses by Mr Boillat and Mr Vautier for

the Government, by Mr Martinez for the Commission and by Mr Lob

for the applicant, as well as their replies to its questions.

AS TO THE FACTS

I. The particular circumstances of the case

7. Mr Quaranta, who is an Italian national, was born in 1962 at

Scorrano (Lecce). He arrived in Switzerland at a very young age,

with his parents. He resides at Vevey in the Canton of Vaud,

where he pursues the occupation of assistant plumber.

8. Between 1975 and 1978 he was placed in various homes for

juveniles. In December 1978 he was made the subject of an

educational assistance order by decision of the President of the

Lausanne Juvenile Court. On his return to his parents' home, he

began, in August 1979, a plumber's apprenticeship but failed to

complete it. He subsequently worked for a number of local

companies.

On 5 March 1982 the Vevey District Criminal Court gave him a

suspended sentence of ten months' imprisonment, with three years

probation, for aggravated theft, robbery, criminal damage and

taking and driving away a motor vehicle without a driving

licence. The court decided to treat him on the same footing as

his accomplice and accepted his plea of diminished responsibility

(Article 11 of the Swiss Penal Code), but without ordering an

expert psychiatric opinion; it also took into consideration his

youth, the short duration of his criminal activity, his personal

situation at the time of the offences, particularly as regards

his emotional insecurity, and the lasting improvement observed in

his behaviour. This decision is not here in issue.

A. The proceedings before the Vevey District Criminal Court

9. The applicant, who was suspected of an offence under the

Federal Misuse of Drugs Act of 3 October 1951 ("the 1951 Act"),

appeared on 10 March 1985 before the investigating judge ("juge

informateur") of the Vevey-Lavaux district. In the course of

this sole examination, he requested free legal assistance

(Article 104 of the Vaud Code of Criminal Procedure - see

paragraph 18 below).

On 23 May 1985 the investigating judge communicated the

application to the President of the Criminal Court who rejected

it (Article 107 of the Vaud Code of Criminal Procedure - see

paragraph 18 below) on 31 May on the grounds that "the needs of

the defence [did] not require ... the provision of free legal

assistance" and that "the case [did] not give rise to particular

difficulties". Mr Quaranta was informed of this decision on 3

June and, although advised of his right to appeal against it

within ten days to the indictments tribunal, he did not do so.

On 5 June 1985 he went to the Criminal Court to reiterate

his request. By a letter of 7 June the registrar informed him

that he could not lodge such a request until his file had reached

the court.

10. On 23 August 1985 the investigating judge committed the

applicant for trial in the Vevey Criminal Court, charged with

offences under Articles 19 para. 1, 3rd, 4th and 5th indents, and

19 (a) para. 1 of the 1951 Act (see paragraph 19 below).

11. On 17 October 1985 the applicant repeated his request for

free legal assistance, but on 30 October the President of the

Criminal Court refused it for the same reasons as on 31 May

(see paragraph 9 above).

12. The hearing began on 12 November 1985 at 2.30 p.m.; it

lasted only twenty-five minutes. The applicant appeared in

person without the assistance of a lawyer. No representative of

the public prosecutor's office participated in the court

proceedings. The main documents in the file were read out,

including the committal order. Mr Quaranta answered the

President's questions and added a few words in his defence.

The same day, after having deliberated, the court found the

applicant guilty of taking drugs and drug trafficking and on this

account sentenced him to six months' imprisonment; the sentence

was not suspended. In addition, having stressed the relative

seriousness of the offences, committed while on probation under

the 1982 decision, it revoked the suspension order (Article 41

para. 3 of the Swiss Criminal Code) and ordered the activation of

the previous sentence (see paragraph 8 above), from which the

five days that the accused had spent in detention on remand were

to be deducted.

In the grounds of the judgment the court noted that the

applicant had taken hashish daily since 1975 and that from the

summer of 1983 to spring 1985 he had bought, in small quantities,

2 kg of this drug, most of which he had sold. It considered that

a heavy penalty was called for because of the large quantity of

hashish involved and the applicant's profit-making intention.

However, in mitigation, it took into account his "very

precarious" financial position during the period in question; he

was unemployed and he lived, together with his family, on social

security benefit.

B. The proceedings in the Criminal Court of Cassation of the

Vaud Cantonal Court

13. Through a lawyer, whose services he paid for himself, Mr

Quaranta appealed to the Court of Criminal Cassation of the Vaud

Cantonal Court.

He pleaded primarily that the court should quash the

judgment of 12 November 1985. In his view, his youth, his lack

of vocational training and his two previous convictions (see

paragraph 8 above) had made the presence of a lawyer necessary

for his defence. Furthermore, the contested decision was, he

claimed, flawed by reason of the criminal court's failure to

state why it had considered that the subjective conditions for

suspending the sentence were not satisfied.

In the alternative the applicant asked the Court of

Cassation to vary the decision. He argued that the trial court

had misapplied Article 41 of the Swiss Criminal Code inasmuch as,

on account of his age and the improvement observed in his

behaviour, he should have been left a last chance and been given

a further suspended sentence.

14. On 27 January 1986 the Criminal Court of Cassation dismissed

the appeal on the following grounds:

"Application to have the decision quashed (recours en

nullité)

...

In a judgment, Coindet, of 11 November 1983 ... the First

Public-Law Chamber of the Federal Court laid down the

following principles:

The conditions set forth in Article 104 para. 2 CCP [Code

of Criminal Procedure] - the needs of the defence in a

criminal prosecution - are the same as those laid down in

the case-law concerning the right to free legal assistance

as it may be inferred from Article 4 of the Constitution.

The accused must be provided with defence counsel where the

sentence which he may expect on conviction cannot be

suspended because of its length, or where there is a

likelihood of an order confining him to a non-penal

institution [mesure privative de liberté]; in other cases

such a right may be recognised under Article 4 of the

Constitution only where, in addition to the relative

seriousness of the case, there are special difficulties from

the point of view of the establishment of the facts or the

legal issues raised; it is then necessary to take account of

the accused's capacities, his experience in the legal field

and the measures which appear necessary, in the specific

case, to provide for his defence, in particular as regards

the evidence which he will have to produce.

...

In this instance, the length of the term of imprisonment

did not in itself rule out the possibility of a suspended

sentence. Moreover, the appellant does not claim that free

legal assistance was necessary because he expected to

receive a sentence which could not be suspended by reason of

its length; there was no difficulty in the establishment of

the facts, which, as the appellant states in his memorial,

'are admitted in their large majority'; nor does the

appellant rely on legal difficulties, and he is correct in

not doing so; as regards the reasons relating to the

accused's personal situation, the fact that he is a young

adult within the meaning of Articles 100-100 ter of the

Criminal Code, and has already been convicted, cannot be

regarded as constituting a particular difficulty.

The submission is therefore unfounded and must fail.

...

In so far as the appellant seeks to show that the decision

was flawed with regard to points of fact which constituted

the basis of the reasoning of the first-instance court in

its refusal to suspend the sentence, it may be accepted that

this submission raises a question of nullity. But it is

unfounded. In fact, in order to establish whether the

subjective conditions for suspending a sentence are

satisfied, the trial judge must determine whether there are

prospects for the defendant's lasting improvement, having

regard to his past history and his character (Arrêts du

Tribunal fédéral, [ATF, official reports of the judgments of

the Swiss Federal Court] 101 IV 258, ground 1; Federal

Court: Meyer, 29.11.1983, ad Cass. : 7.10.1983). In this

instance the trial court noted the appellant's past history

and found that he took and trafficked in drugs. As regards

his character, it described his curriculum vitae, his family

situation, his reputation and his financial position. The

trial court therefore gathered together all the necessary

information to make a prognosis. Consequently, the

complaint that the decision was flawed in this respect is

unfounded and the application to have the decision quashed

must fail.

...

3. Application to have the decision varied (recours en

réforme)

...

According to the Federal Court, to determine whether the

past history and character of the accused and the

circumstances of the case make it possible to foresee an

improvement in his behaviour is essentially a matter of

assessment and the appellate authority can intervene in this

area only if the trial court based its decision on

questionable legal argument or exceeded its power of

assessment (Journal des Tribunaux [JT, Courts' Gazette] 1980

I 460 no. 58, and the judgments mentioned therein). The

same principles have been laid down by this Court: the

appellate body should intervene only where the trial court

misuses its power of assessment or where it has failed to

give expressly or impliedly the grounds for its decision

(see CCP with annotations, Article 415, p. 285).

In this instance, the grounds for refusing to suspend the

sentence were stated by implication and did not constitute

misuse of the power of assessment. The quantity of drugs

involved was large and the appellant's criminal activity

continued over a long period, while he was on probation

under another sentence. The profit-making purpose is clear.

Not even his precarious financial position excuses engaging

in such traffic. The information obtained regarding the

appellant is not wholly positive. The first-instance court

was therefore correct in taking the view that his past

history and his character and the circumstances of the case

were not such as to warrant a favourable prognosis and

therefore in refusing to suspend the sentence. The refusal

to suspend the sentence is therefore justified and the

application to have the decision varied must therefore also

fail."

C. Proceedings in the Federal Court

15. The applicant then lodged a public-law appeal with the

Federal Court, complaining of the arbitrary application of

Article 104 of the Vaud Code of Criminal Procedure and of

violations of Article 4 of the Constitution and Article 6 para. 3

(c) (art. 6-3-c) of the Convention. He also sought free legal

assistance in the proceedings before the Federal Court.

On 5 December 1986 the Federal Court allowed his request for

free legal assistance, but dismissed the appeal in the following

terms:

"1. The appellant states that the submissions on which he

relies ... overlap for the most part and he gives no

specific grounds, as required under Article 90 para. 1 (b)

OJ [Federal Act on the organisation of the courts of 16

December 1943], concerning the complaint of a violation of

the European Convention on Human Rights. Moreover, the

guarantees secured by the provisions of Article 6 (art. 6)

of the European Convention are in part already contained in

Article 4 of the Constitution. They do not therefore in

this case have separate effect (ATF 105 Ia 305, ground f,

103 Ia 5, ground 2). The present appeal can consequently be

examined only from the point of view of domestic law.

...

... In other words provision of free legal assistance is

indispensable where the case in question is of some gravity

and gives rise to difficulties as to the facts or to the law

of a kind that the accused is not in a position to deal with

(ATF 111 Ia 82 s., ground 2 c, 102 Ia 89 et seq.). In order

to ascertain whether the minimum requirements of Article 4

of the Constitution are satisfied, it is necessary in each

case to assess all the specific circumstances (ATF 102 Ia

90).

4. (a) As far as the length of the likely sentence is

concerned (an order of confinement in a non-penal

institution not being relevant to the present case), the

appellant does not claim that he risked, in the given

circumstances and for the only offences of which he was

accused, a sentence whose length was in excess of a sentence

which might be suspended. Clearly the risk of the

activation of the previous suspended sentence (which was

here for a term of ten months' imprisonment) has to be taken

into account (see the Coindet judgment, cited above, ground

2 b). But the appellant does not maintain that, in view of

this possibility, he in fact risked a custodial sentence of

more than eighteen months. On the contrary, he relied on

the total of sixteen months' imprisonment imposed on him in

order to argue that free legal assistance might have made it

possible for him to obtain a more lenient sentence. It must

therefore be recognised that the overall sentence which he

actually risked did not exceed eighteen months and therefore

did not entail the obligation to grant him free legal

assistance.

(b) Evidently, the appellant's case must be regarded in

itself as relatively serious, for the reasons set out in the

judgments of the Cantonal Court and the Criminal Court.

However, various considerations which the case-law has

identified as militating in favour of according free legal

assistance did not apply: Quaranta was not in detention on

remand for a long time, which would have been an impediment

to his defence; he was released on the very day on which he

had been arrested (ATF 101 Ia 91, ground 3 e, 100 Ia

187/188); the prosecution case was not argued, at the trial

hearing on 12 November 1985, by a representative of the

public prosecutor's office (ATF 106 Ia 183, ground 2 b, 103

Ia 5 i. f.); despite a certain instability, the appellant

did not appear to be a man of diminished capacity either

physically or mentally, as can be inferred from the

attestation and the statements of his employer, as well as

those of the social worker questioned by the police. In

addition, his case did not give rise to any difficulty as to

the facts, since the investigation concerning him consisted

merely of a single interview by the investigating judge.

Moreover, he immediately admitted the facts in respect of

which he was accused, and which are not in any case

contested in the appeal (ATF 111 Ia 85/86, 101 Ia 92).

...

(aa) As regards the possibility of diminished criminal

responsibility, the appellant relies, in the first place, on

the extract from the contested judgment in which it is

stated that 'from 1975 until spring 1985, and with greater

frequency since 1983, the accused has taken hashish on a

daily basis', an extract reproduced verbatim from the

first-instance judgment of 12 November 1985. Secondly, he

relies on the Conconi judgment (ATF 102 IV 74 et seq.). It

appears, however, from the file of the investigating judge

of the Vevey-Lavaux district that the above-mentioned

statement of fact is not accurate. Questioned on 10 March

1985 by the police, the appellant stated: 'I have been

smoking hash for about ten years. For two years I have

smoked every day'. The same day, he answered the

investigating judge as follows: 'I first came into contact

with hashish at the age of thirteen ... . Since then I have

smoked it from time to time; it is really only over the last

two years that I have been smoking hashish almost daily'.

The police report of 10 April 1985 notes that Quaranta

'stated that he had been smoking hashish for about ten years

and more regularly for two years'. There is no evidence to

the effect that, contrary to his statements, the appellant

smoked hashish on a daily basis 'from 1975 onwards', or

indeed that he has in fact smoked every day since 1983.

Moreover, the same evidence makes clear that he only used

hashish, and not 'hard' drugs. In any event the committal

order and the criminal court's judgment of 12 November 1985

concerned solely hashish.

On issues of law it was unnecessary to appoint a lawyer

to act for the appellant in order to draw the Court's

attention to the fact that, in accordance with the Conconi

judgment, 'the court has a duty, where consumption of

narcotics is involved, to consider whether the circumstances

cast doubt on the accused's responsibility'. Quaranta

appeared in no way disturbed and, unlike Conconi, he had

never used 'hard' drugs. The cantonal courts, which

inquired into the accused's character and expressed their

views in this respect, therefore clearly considered that

there were no grounds for doubting his mental state.

Whether or not they were under an obligation to say so

expressly in their judgments, as would seem to be a possible

inference from the Conconi judgment, is immaterial in

relation to an alleged obligation to accord free legal

assistance.

(bb) The question whether the reason for the refusal to

suspend the new sentence also necessarily entailed the

activation of the previous suspended sentence (cf. ATF 107

IV 92/93) was not in itself a complex legal issue which

required the granting of free legal assistance. Given the

appellant's previous history and the nature and the dates of

the new offences, there is no evidence that the provision of

legal assistance - which Quaranta moreover received for his

appeal to the Criminal Court of Cassation - would have been

necessary for the protection of his rights.

... ."

16. On 21 July 1987 Mr Quaranta went to the prison of

Bellechasse (Fribourg) to serve his sentence, but the High

Council of the Canton of Vaud accorded him a partial pardon by a

decree of 18 November 1987 which was worded as follows:

"The enforcement of the sentences of ten months'

imprisonment, less five days of detention on remand, and six

months' imprisonment to which Quaranta was sentenced by the

Vevey District Criminal Court respectively on 5 March 1982

and 12 November 1985 shall be suspended as from 24 December

1987 for a probationary period of three years from the date

of suspension."

II. Relevant domestic law

A. The Federal Constitution

17. According to the first paragraph of Article 4 of the Federal

Constitution,

"All Swiss nationals shall be equal before the law. In

Switzerland there shall be no vassals; and there shall be no

privileges attaching to a place, birth, persons or

families."

B. Free legal assistance

18. The two provisions of the Vaud Code of Criminal Procedure

relied on or applied in the present case are as follows:

Article 104

"The accused must be provided with defence counsel in all

cases in which a representative of the public prosecutor's

office participates in the court proceedings.

In other cases, he may be provided with defence counsel,

even against his will, when the needs of the defence so

require, in particular for reasons relating to his

personality or because of the particular difficulties of the

case."

Article 107

"At any time until the opening of the trial, the accused

may request free legal assistance. He shall make such a

request to the investigating judge, who shall transmit it

forthwith, with his preliminary opinion, to the President of

the competent court; when the case has already been referred

to the court, the accused shall submit his request directly

to the President.

The President shall take his decision promptly; ... ."

C. The anti-drugs legislation

1. The Federal Misuse of Drugs Act of 3 October 1951

19. Sections 19 para. 1 and 19 (a) para. 1 provide inter alia:

Section 19 para. 1

"Any person who unlawfully cultivates alkaloid or hemp

plants with a view to producing narcotics,

any person who unlawfully manufactures, extracts,

transforms or prepares narcotics,

any person who unlawfully stocks, dispatches, transports,

imports, exports or carries them in transit,

any person who unlawfully offers, distributes, sells,

deals in, procures, prescribes, markets or transfers them,

any person who unlawfully possesses, holds, purchases or

otherwise acquires them,

any person who takes steps to pursue these ends,

any person who finances illegal traffic in narcotics or who

serves as intermediary for such financing, and

any person who publicly encourages the consumption of

drugs or reveals how to obtain or consume them,

shall be liable, if he has acted intentionally, to

imprisonment or a fine. In serious cases the sentence may

be imprisonment (réclusion or emprisonnement) for at least

one year; such a sentence may be accompanied by the

imposition of a fine of up to one million Swiss francs.

... ."

Section 19 (a) para. 1

"Any person who unlawfully and intentionally consumes

narcotics or any person committing an infringement of

Article 19 in order to provide for his own consumption shall

be liable to detention or a fine.

... ."

2. The Swiss Criminal Code

20. The term of imprisonment (emprisonnement) is laid down in

Article 36 of the Criminal Code:

"The term of imprisonment (emprisonnement) shall be not

less than three days and, except as expressly provided to

the contrary by statute, shall not exceed three years."

21. The rules governing the suspension of sentence are set out

in Article 41, which is worded as follows:

"1. Where a custodial sentence of not more than eighteen

months or an accessory penalty is imposed, the court may

suspend the enforcement of the sentence, if the record and

character of the convicted person suggest that this measure

will deter him from committing further offences and if he

has made reparations, to the extent which might reasonably

be expected of him, for damage as assessed by the court or

by agreement with the injured party.

The sentence may not be suspended where the convicted

person has undergone, in respect of an intentional offence

(crime or délit), more than three months' imprisonment

(réclusion or emprisonnement) within the five years

preceding the commission of the offence. Foreign

convictions are to be taken into account in so far as they

are not contrary to Swiss public policy.

In suspending the sentence, the court shall accord the

convicted person a probationary period of from two to five

years.

Where more than one sentence is involved, the judge may

limit the effect of the suspension to certain of them.

... ."

22. In the case of abnormal offenders, alcoholics and drug

addicts, the court may order the following measures and

treatment:

Article 43 para. 1

"Where the mental state of an offender who has committed,

by reason of this state, an offence punishable by

imprisonment (réclusion or emprisonnement) under the present

Code requires medical treatment or special care intended to

remove or reduce the danger of the offender's committing

other such offences, the court may order that he be sent to

a hospital or an asylum. It may order out-patient treatment

if the offender does not represent a danger for other

persons."

...

Where out-patient treatment is ordered, the court may

suspend the sentence imposed if that sentence is not

compatible with the treatment. In such circumstances, it

may order the convicted person to comply with rules of

conduct under Article 41 (2) and, if necessary, place him

under court supervision.

... ."

Article 44

"1. If the offender is an alcoholic and he has committed

the offence in question by reason of this state, the court

may commit him to an establishment for alcoholics or if

necessary to a hospital in order to prevent new offences.

The court may also order out-patient treatment. Article 43

(2) is applicable by analogy.

The court shall order if necessary an expert opinion on

the physical and mental state of the offender and on the

appropriateness of the treatment.

...

6. This Article applies by analogy to drug addicts.

... ."

PROCEEDINGS BEFORE THE COMMISSION

23. In his application (no. 12744/87) lodged with the Commission

on 18 December 1986, Mr Quaranta claimed to be the victim of a

violation of Article 6 para. 3 (c) (art. 6-3-c) of the

Convention. He maintained that he had not had the means to pay a

lawyer of his choice and that, in view of the nature of the case,

a lawyer should have been appointed to represent him during the

investigation and subsequently at the hearing before the Vevey

Criminal Court.

24. The Commission found the application admissible on 6 July

1988. In its report of 12 February 1990 (Article 31) (art. 31),

it expressed the unanimous opinion that there had been a

violation of Article 6 para. 3 (c) (art. 6-3-c). The full text

of its opinion is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 205

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS SUBMITTED TO THE COURT BY THE GOVERNMERNT

25. At the hearing the Government confirmed the submissions set

out in their memorial, in which they requested the Court to hold

that "Switzerland has not infringed the European Convention on

Human Rights in respect of the facts which gave rise to the

application lodged by Mr Quaranta".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 para. 3 (c) (art. 6-3-c)

26. The applicant complained that the President of the Vevey

District Criminal Court had twice refused his application for

free legal assistance in the proceedings before that court. He

relied on Article 6 para. 3 (c) (art. 6-3-c) of the Convention,

which is worded as follows:

"3. Everyone charged with a criminal offence has the

following minimum rights:

...

(c) to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient

means to pay for legal assistance, to be given it free when

the interests of justice so require;

... . "

27. The Court points out that the right of an accused to be

given, in certain circumstances, free legal assistance

constitutes one aspect of the notion of a fair trial in criminal

proceedings (see the Artico judgment of 13 May 1980, Series A

no. 37, p. 15, para. 32). Sub-paragraph (c) of Article 6 para. 3

(art. 6-3-c) attaches two conditions to this right. The first,

lack of "sufficient means to pay for legal assistance", is not in

dispute in the present case. On the other hand, it is necessary

to determine whether the "interests of justice" required that the

applicant be granted such assistance.

28. The Commission observed that even if the refusal of the

President of the Criminal Court, during the investigation (see

paragraph 9 above) and then prior to the hearing (see

paragraph 11 above), was in conformity with Swiss law and

practice, it did not necessarily follow that the criteria applied

by the national authorities were decisive for the purposes of the

Convention; it considered that in the present case the "interests

of justice" required that the applicant be accorded free legal

assistance both during the investigation and before the Vevey

District Criminal Court.

29. The Government disputed that view. In their contention

Article 6 para. 3 (c) (art. 6-3-c) does not provide a higher

level of protection than the guarantees which the Federal Court

has inferred from Article 4 of the Federal Constitution. They

argued that the right to free legal assistance was not absolute,

but depended on the assessment of all the circumstances of the

case and was subject to a number of conditions which were

substantially the same in federal law and in the law of the

various cantons. The Vaud legislation provided for the right to

free legal assistance in criminal proceedings and made the grant

of such assistance subject to certain conditions; Article 104,

2nd paragraph, of the Vaud Code of Criminal Procedure recognised

such a right, inter alia, "when the needs of the defence so

require" (see paragraph 18 above). The Government stressed that

sub-paragraph (c) of Article 6 para. 3 (art. 6-3-c) of the

Convention was drafted in similar terms. They considered

nevertheless that the Court had had few opportunities to define

the notion of "interests of justice" and that its case-law in

this field lacked clarity. Should the Court confirm the

Commission's opinion, the Government invited it to specify

expressly in what way the judicial authorities had infringed

Article 6 para. 3 (c) (art. 6-3-c).

30. On several occasions the Court has observed that the

Contracting States enjoy considerable freedom in the choice of

the means of ensuring that their legal system satisfies the

requirements of Article 6 (art. 6). Its task is to determine

whether the method chosen by them in this connection leads to

results which, in the cases which come before it, are consistent

with the requirements of the Convention.

31. As the Government emphasised, in rejecting Mr Quaranta's

application the cantonal and federal authorities relied on

specific considerations such as the fact that there were no

special difficulties arising from the case, the fact that no

representative of the prosecuting authority attended the

first-instance hearing, the applicant's character, the shortness

of his detention on remand and the penalty which he risked

incurring.

32. In order to determine whether the "interests of justice"

required that the applicant receive free legal assistance, the

Court will have regard to various criteria. To a large extent

they correspond to those put forward by the Government. However,

the way in which the Swiss authorities appear to apply them may

differ - and in the present case did differ - from the Court's

approach.

33. In the first place, consideration should be given to the

seriousness of the offence of which Mr Quaranta was accused and

the severity of the sentence which he risked. He was accused of

use of and traffic in narcotics and was liable to "imprisonment

or a fine" (section 19 para. 1 of the 1951 Act - see paragraph 19

above).

According to the Government, there was nothing in the file

to indicate that the Criminal Court was likely to impose a

sentence exceeding eighteen months, the maximum for a suspended

sentence. By sentencing the applicant to six months'

imprisonment, the court did not reach this limit, even if the

sentence imposed in 1982 is taken into account (see paragraph 8

above).

The Court notes however that this was no more than an

estimation; the imposition of a more severe sentence was not a

legal impossibility. Under section 19 para. 1 of the Federal

Misuse of Drugs Act, in conjunction with Article 36 of the Swiss

Criminal Code, the maximum sentence was three years' imprisonment

(see paragraph 20 above). In the present case, free legal

assistance should have been afforded by reason of the mere fact

that so much was at stake.

34. An additional factor is the complexity of the case. The

Court agrees with the Government that the case did not raise

special difficulties as regards the establishment of the facts,

which the applicant had moreover admitted immediately at his only

examination by the investigating judge. However, the outcome of

the trial was of considerable importance for the applicant since

the alleged offence had occurred during the probationary period

to which he was made subject in 1982 (see paragraph 8 above).

The Criminal Court therefore had both to rule on the possibility

of activating the suspended sentence and to decide on a new

sentence. The participation of a lawyer at the trial would have

created the best conditions for the accused's defence, in

particular in view of the fact that a wide range of measures was

available to the Court.

35. Such questions, which are complicated in themselves, were

even more so for Mr Quaranta on account of his personal

situation: a young adult of foreign origin from an

underprivileged background, he had no real occupational training

and had a long criminal record. He had taken drugs since 1975,

almost daily since 1983, and, at the material time, was living

with his family on social security benefit.

36. In the circumstances of the case, his appearance in person

before the investigating judge, and then before the Criminal

Court, without the assistance of a lawyer, did not therefore

enable him to present his case in an adequate manner.

37. This defect was not cured either in the Criminal Court of

Cassation of the Canton of Vaud, despite the presence of a lawyer

paid by the applicant, or in the Federal Court, although he was

accorded free legal assistance before that court, because of the

limits on the scope of the review which may be carried out by

those two courts (see, as the most recent authority, mutatis

mutandis, the Weber judgment of 22 May 1990, Series A no. 177,

p. 20, para. 39).

38. In conclusion, there has been a violation of Article 6

para. 3 (c) (art. 6-3-c).

II. APPLICATION OF ARTICLE 50 (art. 50)

39. Article 50 (art. 50) of the Convention provides as follows:

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with the obligations arising from the ... Convention, and if

the internal law of the said Party allows only partial

reparation to be made for the consequences of this decision

or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

Under this provision Mr Quaranta claimed compensation for

damage and the reimbursement of costs and expenses.

A. Damage

40. The applicant conceded that he had been accorded a partial

pardon on 18 November 1987. He claimed, however, that he had

sustained pecuniary damage on account of his imprisonment, which

had lasted more than six months, from 21 July to 24 December 1987

(see paragraph 16 above). He also alleged non-pecuniary damage

inasmuch as, in view of the fact that he had been deprived of an

effective defence for a long period, he had experienced a

distressing feeling of isolation, confusion and abandonment.

Under these two heads he sought compensation which could be

"assessed on an equitable basis" at 10,000 Swiss francs.

41. In the Government's contention, there are no grounds for

asserting that the outcome of the trial would have been more

favourable to the applicant if he had received free legal

assistance. The claim in respect of pecuniary damage should

therefore be dismissed. As regards non-pecuniary damage, they

argued, on the basis of the Neumeister judgment of 7 May 1974

(Series A no. 17), that a pardon, without repairing all the

consequences of a violation, played an important role in this

connection so that a finding of a violation would in the present

case constitute sufficient satisfaction.

42. In the opinion of the Commission's Delegate, the experience

of being judged without the assistance of counsel left

Mr Quaranta with a feeling of anxiety and bitterness which

deserved compensation.

43. The Court does not perceive any causal connection between

the breach of Article 6 (art. 6) and the alleged pecuniary

damage. On the other hand, the violation found must have caused

the applicant non-pecuniary damage justifying the award, assessed

on an equitable basis, of 3,000 Swiss francs.

B. Costs and expenses

44. In respect of his costs and expenses the applicant claimed

10,000 Swiss francs, namely 2,000 for the proceedings before the

Criminal Court of Cassation, 2,000 for the application for a

pardon and 6,000 for the "European proceedings properly so

called".

45. The Court considers, in agreement with the Government, that

only the costs incurred in the Criminal Court of Cassation can be

reimbursed, and not those referable to the application for a

pardon. Mr Quaranta failed to provide any details concerning the

costs relating to the proceedings in Strasbourg. Making an

assessment on an equitable basis, the Court awards him a total of

7,000 Swiss francs, less the 10,441 French francs paid by the

Council of Europe as legal aid.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6

para. 3 (c) (art. 6-3-c) of the Convention;

2. Holds that the respondent State is to pay to the applicant,

for non-pecuniary damage, 3,000 (three thousand) Swiss

francs and, for costs and expenses, 7,000 (seven thousand)

Swiss francs less 10,441 (ten thousand four hundred and

forty one) French francs, to be converted into Swiss francs

at the exchange rate applicable on the day of delivery of

the present judgment;

3. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 24 May 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar