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On March 10th 1999, Mr Portmann was arrested in a house in Urnäsch as a suspect in an investigation on a bank robbery. Unnamed Swiss police officers handcuffed his hands in his back, shackled his feet, and placed a hood on his entire head.

The suspect was transported, handcuffed, shackled and hooded to the police station of Herisau where he was interrogated in the same condition by an investigative judge. He exercised his right to remain silent during the interrogation and the investigative judge ordered his detention. Then masked police officers removed his hood and requested him to sign a transcript of the interrogation. Upon his refusal, they placed the hood again on his head. He was detained in a basement cell before being transported to the police station of Trugen. There police officers removed his handcuff, shackle and hood.

On April 4th 2006, the applicant press charges by filing a complain to an investigative judge. On May 3rd 2006, the investigative judge closed the investigation on the ground that hooding was “standard police protocol” for suspects considered “dangerous” by police. No witness were interviewed in the investigation. On July 24th 2006, the prosecutor rejected the appeal of the applicant on the ground that hooding was necessary to keep “the anonymity of the police officers“. He refused to examine the allegation of violation of article 3 of the Convention and to award legal aid to the applicant.

On September 8th 2006, the federal tribunal (case 1P.469/2006) rejected his appeal on the ground that hooding was not “disproportionate” and denied him legal aid.

On September 19th 2006, Mr. Portmann filed pro se an application to the ECHR on the ground that the condition of his arrest and his detention were a violation of article 3. He added that lack of access to a tribunal and the lack of effective remedy were both a violation of articles 6-1 and 13. On November 3rd 2009, the application was communicated to the agent of the Swiss government.

On October 11th 2011, Judge Jočienė (Lithuania), Judge Björgvinsson (Iceland), Judge Malinverni (Switzerland), Judge Sajó (Hungary), Judge Karakaş (Turkey) and Judge Tulkens (Belgium) of the Court found no violation of article 3 on the surprising grounds that “the applicant could breathe through the hood“, “that he didn’t try to remove it” and that a “police officer was watching him almost at all time“.

In his dissenting opinion, Judge Pinto de Albuquerque (Portugal) found a violation of article 3 of the Convention based on the case-law of human rights courts and bodies (ECHR, CIDH, CAT, CPT, CCPR), on findings of the ICRC, ICRT and U.N special rapporteur on torture and on the facts of the case. He concluded that the hooding of the applicant was “unlawful“, “disproportionate”, “useless“, “objectively degrading” and an “inhumane and degrading treatment“.

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On January 26th 2011, Mr. Frank Schürmann the representative of the Swiss confederation for the ECHR announced the selection of 3 candidates for the election of the Judge for Switzerland (2011-2020). This Judge will be the 5th for Switzerland in the history of the Court. He will replace Judge Malinverni (2007-2011) who took office on January 19th 2007 after being elected on June 27th 2006.

The first Judge for Switzerland was Antoine Fabre (1963-1975), the 2nd Denise Bindschedler-Robert (1975-1991) and the 3rd Luzius Wildhaber (1991-2006).

According to the appendix AS/Jur(2008)52 of the  report 11767 of the Committee on Legal Affairs and Human Rights of the Assembly, the previous selection process in 2006 was not respecting any of the 5 principles surveyed. There was no call for candidature in the specialized press. The selection process was not made public and lacked any formal legal basis. Moreover, there was no assessment of candidates’ linguistic abilities, no consultation with civil society bodies and no involvement of a panel of independent experts.

Therefore the previous selection process in 2006 didn’t meet the criteria of fairness, transparency and consistency required by Recommendation 1649 (2004) even though the representative of the Swiss confederation claimed the opposite.

On January 27th 2009, a Resolution 1646 (2009) was adopted by the Assembly (PACE) underlining “the importance of appropriate national selection procedures in order to ensure and reinforce the quality, efficacy and authority of the Court“, asking that “the selection bodies/panels (and those advising on selection) are themselves as gender-balanced as possible” and warning : “In addition, in the absence of a fair, transparent and consistent national selection procedure, the Assembly may reject such lists.”

The selection process in 2010 didn’t meet again the criteria. There was no call for candidature in the specialized press.  The selection process was again done in secret without any formal legal basis. Again, there was no assessment of candidates’ linguistic abilities, no consultation with civil society bodies and no involvement of a panel of independent experts.

The call for candidature (see below) attracted only… 12 candidates. 6 candidates were removed by the government from the selection process. The gender balance of the selection panel is secret as the whole process. Interestingly,  Mr. Frank Schürmann the representative of the Swiss government refused to communicate any document relating to this selection process and the list of the 12 candidates.

Switzerland is home to 8,500 lawyers and 1,089 professional judges but the federal council didn’t select any lawyer as candidate. Instead the federal council proposed 2 lower court judges out of its 3 candidates in violation with point 4.5 of Resolution 1646 (2009) which states : “if possible, no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge“. In 2006, the only candidate  who was a judge Giusep Nay received only 13% of the vote of the Assembly.

The 3rd candidate, Ms. Helen Keller seems then the only real candidate of the Swiss government. After M. Walter Kalin (Switzerland) resigned for an unknown reason, she was nominated by the Swiss government for the election of the member of the Human Rights Committee (CCPR). On July 28th 2008, she was “elected” without vote…by being the only candidate (press release from Swiss govt). After being again nominated by the Swiss government,  she was “reelected” on September 2th 2010 as one of the 9 members among 18 candidates. Her mandate will expire on December 31th 2014.

MP Priti Patel declared at the House of Commons that the public have referring to the ECHR judges “disdain for the unelected bureaucrats in Strasbourg. Judge Jean-Paul Costa answered in an interview : Well it’s not necessarily pejorative to be a bureaucrat or to be unelected..After all high civil servants are unelected bureaucrats..When I shave myself in the morning, I see my face in the glass and I don’t see myself an unelected bureaucrat.

Whether or not the Assembly (PACE) will reject the list of candidates submitted by the Swiss government will be a test on the pledged commitment to a “fair, transparent and consistent” selection process. It will also have lasting consequences on the legitimacy of the Court.

Update :

On April 12th 2011, Ms. Helen Keller was elected by 103 members of the Assembly on 318 representatives (only 160 were voting). It will be her first position ever as a judge. In an interview to SwissInfo, Judge Keller declared that she will resign from being a member of the Human Rights Committee (CCPR) which will trigger the 3rd elections in the last 3 years for the U.N post (4 years mandate).

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