1986

ECHR

Belilos v Switzerland

1981 Mrs Belilos, received a fine imposed by Lausanne Police Board in her absence. Mrs Belilos applied to have the decision set aside, after a hearing the police decided not to set aside its decision. Belilos then applied to the Criminal Cassation Division of the Cantonal Court to declared the decision null and void. The court had only power of nullity, it could not give new rule on the merits. Art 6(1) ECHR 1950 ‘In the determination of any criminal charge everyone is entitled to fair hearing by independent and impartial tribunal’ Belilos alleged that police board was not independent and impartial in reviewing its own decision. Switzerland had made an ‘interpretative declaration of the ECHR ‘The Swiss Federal Council considers that the guarantee of fair trial … is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities’ Belilos applied to E commission HR, then the case was referred to European Court of Human Rights. The court was asked to declared that Switzerland had violated art 6(1) ECHR, reparation and amendments to legislation

The Swiss declaration has to be interpreted under the intention of Switzerland to secure itself against an interpretation of art 6(1) which it considered unacceptable. Where a state makes a declaration, presenting it as a condition of its consent to be bound by the Convention and intending to exclude or alter the legal effect of some of its provisions, such a declaration, whatever is called must be assimilated to a reservation under art 64. As it was the case, the declaration can be assimilated to a reservation. Art 64 ECHR ‘any state when signing the convention can make reservations to the extent that the law in force in its territory is not in conformity. Reservations of general character shall not be permitted. Any reservation shall contain a brief statement of the law concerned’ As the declaration was not permitted under art 64 it was invalid. However Switzerland was and regarded itself as bound by the Convention irrespective of the validity of the declaration. The commission accepts that a party may relieve its courts of the responsibility for prosecuting minor offences. It was compatible with art 6(1) that this duty devolved upon administrative authority, so long as the interested person could appeal to a tribunal affording the safeguards of art 6(1). In the case Tribunal could not determine questions of facts