Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18990/91

Armin Nideröst-Huber

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 23 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-25). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16-24) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(para. 25) . . . . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 26-40). . . . . . . . . . . . . . . . . . . . . . . . 5

A. Complaint declared admissible

(para. 26) . . . . . . . . . . . . . . . . . . . . . . . 5

B. Point at issue

(para. 27) . . . . . . . . . . . . . . . . . . . . . . . 5

C. As regards Article 6 para. 1 of the Convention

(paras. 28-40) . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION

(para. 40) . . . . . . . . . . . . . . . . . . . . . . . 7

DISSENTING OPINION OF Mr. G. JÖRUNDSSON

JOINED BY MM. M.P. PELLONPÄÄ and B. MARXER. . . . . . . . . . . . . 8

DISSENTING OPINION OF Mr. I. CABRAL BARRETO . . . . . . . . . . . . 9

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . .10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Swiss citizen, born in 1940 and resident in

Rickenbach (Switzerland). He was represented before the Commission by

Mr. M. Ziegler, a lawyer practising in Lachen.

3. The application is directed against Switzerland. The respondent

Government were represented by Mr. Ph. Boillat, Head of the European

Law and International Affairs Section of the Federal Office of Justice.

4. The case concerns the failure of the Federal Court to serve on

the applicant observations of the Schwyz Cantonal Court on a civil law

appeal lodged by him. The applicant invokes Article 6 of the

Convention.

B. The proceedings

5. The application was introduced on 17 October 1991 and registered

on 24 October 1991.

6. On 1 December 1993 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 18 February 1994.

The applicant replied on 1 June 1994 after one extension of the time-

limit.

8. On 17 January 1995 the Commission (Second Chamber) declared the

application admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 22 January 1995 and they were invited to submit such

further information or observations on the merits as they wished. No

observations were submitted.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

12. The text of this Report was adopted on 23 October 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In December 1985, following a change in the majority of share-

holders, the applicant was dismissed without notice from his posts as

president of the board of management (Verwaltungsratspräsident) of a

limited company incorporated under Swiss law (Aktiengesellschaft) and

managing director (Geschäftsführer), respectively.

17. On 29 July 1986 the applicant brought an action for payment of

outstanding salary and compensation for dismissal against the company.

18. On 22 September 1988 the Schwyz District Court (Bezirksgericht)

dismissed the applicant's action.

19. On 19 June 1990 the Schwyz Cantonal Court (Kantonsgericht)

dismissed the applicant's appeal (Berufung). The Court found that the

applicant's dismissal without notice was justified as an important

reason for that dismissal existed. In the course of the struggle for

power between the applicant, who was supported by a part of the share-

holders, and the new majority of share-holders, the applicant had not

distinguished his own interests from those of the company and neglected

the company's interests. Thus, the applicant's conduct had destroyed

the confidence of the defendant in the applicant's loyal management of

the company.

20. On 12 October 1990 the applicant introduced at the Cantonal Court

a further appeal (Berufung) to the Federal Court (Bundesgericht).

21. On 22 October 1990 the Cantonal Court transmitted the appeal and

the file to the Federal Court and commented on the applicant's appeal.

In its comments the Cantonal Court stated inter alia that the basis of

confidence had been shattered because of the applicant's refractory

behaviour over the years and that the applicant had improperly accused

the District Court of bias. The comments of the Cantonal Court were

not transmitted to the parties.

22. On 12 December 1990 the defendant submitted observations, which

were transmitted to the applicant.

23. On 1 March 1991 the Federal Court dismissed the applicant's

appeal. The Federal Court, in a detailed reasoning, found that the

Cantonal Court had correctly assumed that the applicant's dismissal

without notice was justified. The applicant had, by his refractory

behaviour as managing director, continuously ignored the interests of

the former minority share-holders. The company, with the changed

majority of share-holders, could not be expected to continue the

employment contract and had the right to dismiss him without notice.

The Federal Court's judgment was served on the applicant on

30 April 1991.

24. On 2 May 1991 the Federal Court, upon the applicant's request,

transmitted to him the Cantonal Court's comments of 22 October 1990.

B. Relevant domestic law

25. Section 56 of the Federal Judiciary Act (Bundesrechtspflege-

gesetz) reads as follows:

(Translation)

"The Cantonal authority has to inform the other party immediately

of the filing of the appeal, even when it appears to be lodged

out of time. Within a week the Cantonal authority has to submit

to the Federal Court the writs of appeal, a copy of its decision

and of previous procedural decisions as well as the complete file

and its possible observations. It has to inform the Federal

Court about the date on which the impugned decision was served

on the parties, the date at which the appeal was received or

posted and when the opposing party was informed."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

26. The Commission has declared admissible the applicant's complaint

that the Federal Court failed to serve on him observations of the

Schwyz Cantonal Court on a civil law appeal lodged by him.

B. Point at issue

27. Accordingly the issue to be determined is whether there has been

a violation of the applicant's right to a fair hearing, as guaranteed

by Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

28. The applicant complains of a violation of the principle of

equality of arms, because he did not receive the Cantonal Court's

comments of 22 October 1990 during the proceedings before the Federal

Court. He relies on Article 6 para. 1 (Art. 6-1) of the Convention

which, as far as relevant, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law..."

29. The applicant submits that in its observations of 22 October 1990

the Cantonal Court made wrong or at least questionable submissions to

which he could not react. However, the principle of equality of arms

requires that important legal submissions must be served on the parties

in order to allow them to react thereto. The right to make

observations under Section 56 of the Federal Judiciary Act does make

a Cantonal Court a party to the proceedings before the Federal Court

because in making observations such a court makes statements in favour

of a party. As such observations emanate from an official body, they

are practically more important than the submissions of the opposing

party. There is therefore a shift in the equality of arms in favour

of the party it supports, which necessitates that the appellant must

be able to receive and comment on the observations.

30. The applicant submits further that, in any event, the Federal

Court's failure to serve the Cantonal Court's observations on him

violated his right to a fair hearing. The observations contained new,

and, in his view, incorrect elements which the Federal Court adopted

in its judgment. But even if the observations did not relate to new

elements, the Cantonal Court's remarks were likely to show him in an

unfavourable light before the Federal Court.

31. In the Government's view no issue arises with regard to the

principle of equality of arms as this principle does not concern the

relations between a party and the deciding authority. In any event,

the fact that the applicant had no possibility to comment on the

Cantonal Court's observations did not infringe the principle of fair

trial.

32. The Government also point to the specific function of the

observations under Section 56 of the Federal Judiciary Act in the

proceedings before the Federal Court. The scope of such observations

is limited as they must not contain any new statement of facts. Their

purpose is to allow the Cantonal authority to comment on legal

questions invoked for the first time in the appeal, to rectify

erroneous or tendentious interpretations of the judgment, to clarify

ambiguous passages of the judgment and to comment on complaints about

obvious mistakes allegedly made by the court.

33. The Government further submit that in the present case the

observations of the Cantonal Court were very short and merely summed

up its judgment. They only referred to elements already contained in

the judgment and neither supplemented the facts nor the legal

reasoning. The Federal Court adopted the Cantonal Court's findings on

the facts as contained in the judgment, without relying on the Cantonal

Court's observations. When the Federal Court described the applicant's

conduct with a concise formula used by the Cantonal Court in its

observations ("renitent" for systematic opposition) it did not depart

from the Cantonal Court's judgment.

34. The Government also argue that civil proceedings should not be

aligned to criminal proceedings in an artificial way, as the

requirements inherent in the concept of fair trial are stricter with

regard to criminal proceedings and Contracting States have a greater

latitude when dealing with civil cases. In the context of the civil

proceedings the requirements of Article 6 (Art. 6) are met if, like in

the present case, the possibility for a second exchange of memorials

exists if the Cantonal Court's observations would have contained new

and serious arguments.

35. The Commission notes that the applicant complains of a violation

of the principle of equality of arms. This principle concerns the

procedural equality of the parties in court proceedings, and there is

no appearance of any violation of that principle in the present case.

36. However, the wider concept of a fair hearing in Article 6 para. 1

(Art. 6-1) of the Convention also includes various other requirements.

One such requirement is that the court shall not, in principle, base

its decision on any material which is unknown to the parties to the

proceedings and on which they have not had the opportunity to comment.

37. In the present case, it is uncontested that the Cantonal Court's

comments on the case, which were submitted to the Federal Court on

22 October 1990 together with the applicant's appeal, were not

communicated to the applicant before the Federal Court decided on the

appeal.

38. The Government submit that the observations of the Cantonal Court

were very short and merely summed up its judgment. However, it must

be assumed that where, as in the present case, a court makes

substantive comments on an appeal against one of its judgments, these

comments cannot lack relevance. This is so even if the comments do not

add anything substantially new to what was already stated in the

judgment against which the appeal was lodged but repeat in a different

wording, or give special emphasis to, parts of the reasoning in the

judgment. As regards the present case it also appears that the Federal

Court, when dismissing the appeal, did so in terms which bore some

resemblance to the Cantonal Court's comments which had not been

communicated to the applicant.

39. In these circumstances, the Commission considers that the fact

that the Cantonal Court's comments were not communicated to the

applicant and he was not given the opportunity of replying to them

before the Federal Court ruled on his appeal was an infringement of his

right to a fair hearing as referred to in Article 6 para. 1 (Art. 6-1)

of the Convention.

CONCLUSION

40. The Commission concludes, by 26 votes to 4, that in the present

case there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (H. DANELIUS)

(Or. English)

DISSENTING OPINION OF Mr. G. JÖRUNDSSON

JOINED BY MM. M.P. PELLONPÄÄ and B. MARXER

Contrary to the majority of the Commission, I am of the opinion

that there has been no violation of the applicant's rights under

Article 6 of the Convention in the present case.

I recall that the principle of equality of arms is only one

feature of a wider concept of a fair trial and implies that each party

shall have a reasonable opportunity of presenting his case to the Court

under conditions which do not place him at a substantial disadvantage

vis-à-vis his opponent (Eur. Court H.R., Dombo Beheer B. V. judgment

of 27 October 1993, Series A no. 274, p. 19, para. 33; No. 7450/76,

Dec. 28.2.77, D.R. 9 p. 110).

The applicant submits that the Cantonal Court by filing

observations supported the opposing party and thus became itself a

party to the proceedings.

I recall that Article 6 para. 1 of the Convention requires in

criminal cases that the accused receives observations made by the

prosecution or the procurator general in proceedings before courts of

appeal or cassation irrespective of their contents (see M.B. v.

Austria, Comm. Report 8.9.94, para. 56).

However, in the present case the observations in question were

submitted in civil proceedings. In this respect I recall that an

attorney general acting before a supreme court, may under certain

circumstances, in particular when he recommends the dismissal of an

appeal, be considered objectively speaking as opposing party to an

appellant in civil proceedings (see Lobo Machado v. Portugal, Comm.

Report 19.5.94, para. 53, at present pending before the Court).

In the present case the observations in question were submitted

by a court, which as such was bound to respect the principle of

impartiality. As it is the task of a court in civil proceedings to

find against one of the litigant parties, the fact that the Cantonal

Court did find against the applicant cannot make it a party to the

appeal proceedings, nor the fact that it filed observations, in

accordance with domestic law, with the Federal Court in which it relied

on its own judgment.

In this respect, it should also be observed that during the

proceedings before the Federal Court the observations of the Cantonal

Court were transmitted to neither party. Moreover, the applicant has

not shown that the observations in any way supplemented the facts or

the legal reasoning already contained in the judgment. We here note

that in its judgment of 19 June 1990 the Cantonal Court had dealt at

length with the applicant's performance as managing director. The

Cantonal Court's comments of 22 September 1990 only summarised its

previous judgment.

I therefore consider that, in the proceedings before the Federal

Court, no problem arises as to the equality of arms between the

applicant and the defendant company. Moreover, the Federal Court's

failure to transmit the Cantonal Court's comments to the parties did

not otherwise render the proceedings unfair.

(Or. French)

DISSENTING OPINION OF MR. I CABRAL BARRETO

Even if I fail to see how, in the proceedings examined in the

Lobo Machado case, the intervention of the State Counsel's Office goes

against Article 6 para. 1 (see my dissenting opinion appended to the

Commission's Report), I wish to support the dissenting opinion of my

colleague, Mr. G. Jörundsson: I find it difficult to consider a court

as somehow allied to a party.

I consider that the Cantonal Court is, objectively speaking,

impartial; to my mind, its conduct in the proceedings in question can

be seen as an attempt to collaborate between the judicial bodies in

order to assist the Federal Court.

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NIDERÖST-HUBER v. SWITZERLAND

NIDERÖST-HUBER v. SWITZERLAND

LEXI