EGV-SZ 2001 - Kanton Schwyz

A. 5.1
mentar, 2. Aufl., Kehl/Strassburg/Arlington 1996, N 116 zu Art. 5 und
N 125f. zu Art. 6 EMRK).
Aus dem Entscheid in der Beschwerdesache 36833/97 vom 15. November
2001 kann dazu in englischer Originalsprache wörtlich entnommen
werden:
2. The applicant raises various complaints under Article 5 § 3 of the
Convention which states, insofar as relevant:
“Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly before a judge
or other officer authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial ...”
a) The applicant complains that he was not brought “promptly” before
a “judge or other officer authorised by law” within the meaning of this
provision in that the Investigating Office is not an independent body.
The Government submit that this complaint is manifestly ill-founded.
Thus, in the Canton of Schwyz the Public Prosecutor’s Office is not capable
of overturning a decision of, or withdrawing a case from, the Investigating
Office, were it to be dissatisfied with the latter’s approach. Furthermore
there is no risk of an incompatible accumulation of functions
since the Public Prosecutor’s Office alone will raise the charges at the trial
before the court. The Investigating Office is solely responsible for the
investigation, and the supervision of the Public Prosecutor’s Office is only
of an administrative nature which does not impinge on the independence
of the Investigating Office. In any event, the Government contend
that the applicant has not maintained that in his case the Public Prosecutor’s
Office in fact interfered with the investigations, or that during these
proceedings the Investigating Office consulted another authority.
The applicant replies that the Investigating Office is appointed by the
Government of the Canton of Schwyz and works under the supervision of
the Public Prosecutor’s Office as well as of Government administration.
Therefore, the Office in no ways fulfils the requirements of Article 5 § 3
of the Convention. The Investigating Office is even less independent than
the District Attorney’s Office of the Canton of Zurich in respect of which
the Court has found that it did not offer the independence required by
this provision (see the Huber v. Switzerland judgment of 23 October 1990,
Series A no. 188, p. 18, § 43). In particular, whereas the Public Prosecutor’s
Office of the Canton of Zurich takes care not to interfere with the
preliminary investigations, this will frequently be the case in the Canton
of Schwyz. The applicant refers hereby to a document of the Canton of
Schwyz of 1987 from which it transpires that a public prosecutor has
stated that he could quash the decision of an investigating judge and order
continuation of the investigations. The Public Prosecutor’s Office,
which may issue instructions to the Investigating Office, has full powers of
supervision, and in the present case repeatedly dealt with the applicant’s
complaints.
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