Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 17748/91

Guy ANKERL

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 24 May 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. 16-32) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-30). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 31-32). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 33-51) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 33). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 34). . . . . . . . . . . . . . . . . . . . .6

C. Article 6 para. 1 of the Convention

(paras. 35-45). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 46). . . . . . . . . . . . . . . . . . . . .8

D. Article 14 of the Convention

(paras. 47-48). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 49). . . . . . . . . . . . . . . . . . . . .8

E. Recapitulation

(paras. 50-51). . . . . . . . . . . . . . . . . . .8

DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS, M.A. NOWICKI,

J. MUCHA, D. SVÁBY . . . . . . . . . . . . . . . . . . . . .9

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 11

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 12

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 1933 and resident in

Geneva.

3. The application is directed against Switzerland. The respondent

Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head

of the European Law and International Affairs Section of the Federal

Office of Justice.

4. The case concerns the applicant's complaint under Article 6

para. 1 and Article 14 of the Convention that the principle of equality

of arms had not been respected in proceedings before a Geneva Court on

the ground that a witness for the opposing party was heard under oath,

whereas the applicant's wife was not.

B. The proceedings

5. The application was introduced on 10 December 1990 and registered

on 4 February 1991.

6. On 31 March 1993 the Commission 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 the admissibility and merits of the

applicant's complaint under Article 6 para. 1 of the Convention.

7. The Government's observations were submitted on 8 June 1993 and

the applicant's observations on 10 July 1993.

8. On 5 July 1994 the Commission declared the application

admissible.

9. In additional observations of 17 October 1994 the Government

submitted that the applicant had not complied with the requirements of

Article 26 of the Convention. The applicant submitted further

observations on 7 October 1994. The Commission found on 11 April 1995

that there was no basis for applying Article 29 of the Convention.

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, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

12. The text of this Report was adopted on 24 May 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. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

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. Since 1978 the applicant sub-leased an apartment in Geneva from

the Régie Immobilière SA which in turn leased it from the proprietor,

the SI Chrysanthemum SA. The applicant did not have a written

contract. The Régie Immobilière SA eventually went bankrupt. In 1986

the Régie Naef SA, acting in the name of Chrysanthemum, informed the

applicant that the building would be renovated and raised. On

8 May 1987 the Régie Naef SA informed the Régie Immobilière of the

termination of its lease contract; it also requested the latter to

terminate the applicant's sub-lease.

17. On 14 July 1987 the Régie Naef transmitted to the applicant pay

slips (bulletins de versement) for his rent, while stating that it did

not thereby recognise the existence of a contract between him and the

proprietor. On 21 July 1987 the Régie Immobilière informed the

applicant of the termination of the lease as of 28 February 1988.

18. Eventually, the GPR SA took over the administration of the

building. The applicant attempted to obtain from the GPR SA a

principal lease contract. L., the administrator at GPR SA, forwarded

the request to the proprietor who refused it. The GPR SA then

transmitted pay slips to the applicant who, by letter dated

29 February 1988, confirmed that he would in future pay the rent into

the account mentioned. This letter remained without a reply.

19. On 22 April 1988 the applicant and his wife had a meeting with L.

The discussion apparently concerned the issue whether or not the

applicant could remain in his apartment.

20. On 13 October 1988 the SI Chrysanthemum SA requested the Geneva

First Instance Court (Tribunal de première instance) to order the

vacation of the applicant's apartment. In his reply to the plaintiff's

action, the applicant contested this as the proprietor had demonstrated

the intention to conclude a lease contract with him as the principal

lessee.

21. On 19 May 1989 the Geneva First Instance Court held a hearing at

which it attempted to establish the content of the discussion on

22 April 1988. It first heard L. who spoke under oath. L. stated that

in his recollection he had clearly informed the applicant that there

no longer existed a lease contract. Insofar as the applicant had

expressed the wish to continue to reside in the apartment, he, L., had

clearly said that he himself could not take any decision in this

respect.

22. The Court then heard as a sworn witness V., an employee of the

Régie Naef, who stated that the applicant had been paying the rent to

the Régie Naef until the end of 1987. R., the representative of the

SI Chrysanthemum, who had not been sworn, testified that he had not

wished to conclude the contract with the applicant and that he had

informed L. accordingly. He stated that initially he would not have

been opposed to concluding a contract, but that he had subsequently

changed his mind as the relations with the applicant became strained.

23. The applicant's wife then made a statement, though not under

oath. She stated inter alia that L. had informed them that the

building would be raised, and that during renovation work they could

occupy another apartment. The applicant's wife concluded that they had

left L. reassured and optimistic (rassurés et optimistes). The

applicant's wife stated that she could not remember whether L. had said

that he would speak with the proprietor; she had had the impression

that he enjoyed a certain autonomy.

24. Finally, the applicant spoke, claiming that when he concluded the

lease contract with the Régie Immobilière SA, he had not realised that

he was in fact sub-leasing the apartment.

25. The Geneva First Instance Court gave its decision on

12 October 1989. It held that the parties were not bound by a lease

contract, and it ordered the applicant to vacate the apartment.

26. The Court first summarised the facts of the case and the

statements of the persons attending the hearing on 19 May 1989.

It then stated that it had to examine whether the proprietor had given

its agreement to a contract, inter alia by letting "the collaborator

of the administration explain to the (applicant) that he would refer

the matter to the proprietor" ("en laissant exposer à ce dernier, par

un collaborateur de la régie, qu'il allait en référer à la société

propriétaire").

27. The Court found, without reference to any particular statement

of a person attending the hearing, that "in the circumstances of the

particular case, a lease contract was not concluded, neither orally (no

proof having been adduced of an oral agreement), nor even by a

concluding act" ("dans les circonstances du cas d'espèce - il n'y a pas

eu conclusion d'un bail ni verbal

pas rapportée>, ni même par acte concluant").

28. The applicant then filed an appeal which the Court of Appeal

(Cour de justice) of the Canton of Geneva dismissed on 7 June 1990.

The Court did not pronounce itself on the issue that the applicant's

wife had not been heard as a witness under oath.

29. In his subsequent public law appeal (recours de droit public) to

the Federal Court (Tribunal fédéral) the applicant complained inter

alia under Articles 6 and 14 of the Convention that the courts had

arbitrarily relied solely on the statement of L., and disregarded his

wife's statement. He also complained that the representative of one

of the parties had been admitted to be heard as a sworn witness and

that this created an inequality in respect of the other party who had

not been under the circumstances in a position to present witnesses who

could be sworn.

30. On 3 October 1990 the Federal Court dismissed the public law

appeal. The Court referred inter alia to the applicant's complaint

that L. was heard as a witness under oath, whereas in the applicant's

view he should have been assimilated to the party which he represented.

The Court noted that the applicant was confusing the representatives

of the company, on the one hand, and mandated persons such as the

administrator of a building, on the other. The Federal Court found

that the lower Courts had not arbitrarily interpreted the Geneva Code

of Civil Procedure when they did not apply its Section 225 to L. when

hearing him as a witness. The Court continued:

"according to the commentators of the Geneva Code of Civil

Procedure, hearing a person as a source of information has only

an informative purpose and no probative value ... In the present

case it was not therefore arbitrary not to consider the

explanations furnished by [the applicant's wife]. In fact, the

applicant has not at all demonstrated that the Cantonal Court

interpreted in an untenable manner the statements of the witness

under oath, [ L.]."

"selon les commentateurs de la loi de procédure civile genevoise,

l'audition à titre de renseignement n'a qu'une portée

informative, sans valeur probante ... Il n'y avait donc rien

d'arbitraire, en l'espèce, à ne pas tenir compte des explications

fournies par [l'épouse du requérant]. Le recourant ne démontre,

du reste, nullement en quoi la cour cantonale aurait interprété

d'une manière insoutenable les déclarations du témoin assermenté,

[ L.]."

B. Relevant domestic law

31. Section 222 of the Geneva Code of Civil Procedure (Loi de

procédure civile) states that every person appearing as a witness must

make his statement under oath (sous la foi du serment).

32. According to Section 225 para. 1, certain persons, in particular

the spouse of one of the parties, cannot be heard as witnesses.

Section 226 provides that the persons mentioned in Section 225 may be

heard, though not under oath, and only to give information (seulement

à titre de renseignement).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

under Article 6 para. 1 and 14 (Art. 6-1, 14) of the Convention that

the principle of equality of arms had not been respected in the

proceedings in view of the fact that the witness for the proprietor was

heard under oath, whereas his wife was not.

B. Point at issue

34. Accordingly, the issue to be determined is

- whether there has been a violation of Article 6 para. 1 (Art. 6-

1) of the Convention,

- whether there has been a violation of Article 14 of the

Convention taken together with Article 6 para. 1 (Art. 14+6-1) of the

Convention.

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

35. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair ... hearing ... by a tribunal..."

36. The applicant submits that the Geneva First Instance Court only

heard three persons to ascertain the outcome of the meeting on

22 April 1988: L., the applicant and his wife. He points out that in

Geneva, the administrator of a building normally concludes a lease

contract. The Court heard L.(the administrator) as a witness under

oath, although as a representative of the proprietor he had as much

personal interest in the outcome of the case as the applicant himself.

The applicant's wife only made a statement of no probative value, not

being legally entitled to testify under oath. The Court heard the

applicant only for information. The applicant further submits that

testimony given under oath was of crucial importance for the outcome

of the proceedings. A procedure admitting testimony under oath of only

one party, but not the other, placed the latter in a disadvantageous

position.

37. The Government submit that the proprietor was represented in the

Geneva First Instance Court by L. L. had acted upon the mandate of the

administering company, who in turn had acted upon the mandate of the

proprietor. Thus he could not be identified with the proprietor, not

being its legal representative and not being authorised to conclude a

lease contract, unless on specific authorisation by the proprietor.

Consequently, he must be heard as a witness since he was not a party

to the proceedings concerning the existence of a lease contract. There

was no inequality between parties as the notion of inequality implies

unequal treatment in comparable situations. The situation of the

parties to the proceedings was not comparable. It was only the

administering company which could have put forward the evidence

concerning the meeting of 22 April 1988, the applicant being in no

position to do so, as there were no other witnesses whom he could have

proposed.

38. The Government further submit that the Geneva First Instance

Court in its judgment did not make any reference to any particular

statement of the persons who had testified before this Court. The

Court did not rely on any particular statement, including that of L.

Thus there is no indication that the fact that L. spoke under oath had

any relevance to the Court's conclusions as to the credibility of his

evidence.

39. The Commission recalls that the Convention does not explicitly

secure the right to have witnesses called, or heard under oath, in

civil proceedings. The right to call and question witnesses in civil

proceedings is, however, an element in the right to a fair hearing in

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

equality of arms is one of the features of the wider concept of fair

trial. As regards litigation involving opposing private interests, the

equality of arms implies that each party must be afforded a reasonable

opportunity to present his case - including his evidence - under

conditions that do not place him at a substantial disadvantage vis-à-

vis his opponent (Eur. Court H.R., Dombo Beheer judgment of

27 October 1993, Series A no. 274, pp. 18-19, paras. 31-33).

40. Turning to the present case, the Commission notes that the issue

before the Geneva First Instance Court was whether a lease contract had

existed between the parties. L., the administrator of the building,

contested this, claiming that he was not competent to conclude a

contract. The applicant, on the other hand, claimed that the

administering company had intended to conclude a lease contract with

him and that the outcome of the meeting on 22 April 1988 supported his

belief that such a contract had existed by virtue of an oral agreement,

and that he could remain in the apartment.

41. Three persons had been present at the meeting of 22 April 1988,

namely the applicant, his wife and L. Thus, when attempting to

reconstruct the content of the meeting of 22 April 1988 before the

Geneva First Instance Court, the applicant placed importance on the

statement of his wife as she was the only witness who could confirm his

allegation that an oral agreement had indeed been concluded. The Court

heard L., the applicant and his wife. Only L. was sworn as a witness

under oath, not the applicant's wife.

42. The Commission recalls that it is a legal principle in many

countries that a party in a civil case cannot be heard as a witness

under oath in his or her own case. The same principle often extends to

persons who are closely related to a party, for instance a husband or

wife, children and other close relatives. There are good reasons for

such an exception from the normal rules. Indeed, persons having close

personal relations to a party would be put in a difficult conflict of

conscience and loyalty if they would either have to give information

which was harmful to that party or expose themselves to the risk of

being punished for perjury.

43. The Commission also observes that there were further elements

before the Geneva First Instance Court, such as the absence of any

written document confirming that a contract had been concluded and the

exchange of letters between the parties. The Court also heard

statements of other persons: V., an employee of the former

administering company, stated that the applicant had been paying the

rent to this company until the end of 1987; R., the representative of

the plaintiff, explained that he had not wished to conclude the

contract with the applicant. In its judgment, the Court summarised the

statements of all the persons who had testified. The Court, without

reference to any particular statement, found that it had not been

proven that a written or oral contract had been concluded between the

parties. Furthermore, the Commission notes that the statement of the

applicant's wife (para. 23) appears to have been rather vague and

inconclusive.

44. In the light of the above considerations, the Commission

considers that the present case can be distinguished from the Dombo

Beheer case both in principle (para. 42) and on the facts (para. 43).

45. In the circumstances, although there was a formal difference in

that L. was heard under oath whereas the applicant's wife was not heard

under oath, the Commission finds that there is no indication that the

proceedings as a whole were unfair.

CONCLUSION

46. The Commission concludes, by seven votes to six, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

D. Article 14 (Art. 14) of the Convention

47. The applicant complains under Article 14 of the Convention taken

together with Article 6 para. 1 (Art. 14+6-1) of the Convention about

unequal treatment as regards the hearing of witnesses.

48. However, in its examination above of the applicant's allegations

under Article 6 para. 1 (Art. 6-1) of the Convention, the Commission

has already dealt with the issue of equality of arms. The Commission

considers that no separate issue arises under Article 14 of the

Convention taken together with Article 6 para. 1 (Art. 14+6-1) of the

Convention.

CONCLUSION

49. The Commission concludes unanimously that no separate issue

arises under Article 14 in conjunction with Article 6 para. 1 (Art. 14

+6-1) of the Convention.

E. Recapitulation

50. The Commission concludes, by seven votes to six, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention

(see para. 46).

51. The Commission concludes unanimously that no separate issue

arises under Article 14 in conjunction with Article 6 para. 1

(Art. 14+6-1) of the Convention (see para. 49).

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

(Or. English)

DISSENTING OPINION OF Mr. L. LOUCAIDES,

JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS,

M.A. NOWICKI, J. MUCHA, D. SVÁBY

I regret but I am unable to agree with the conclusion of the

majority of the Commission that there has been no violation of

Article 6 para. 1 of the Convention.

The issue before the Geneva First Instance Court was whether a

lease contract had existed between the parties. L., the administrator

of the building, contested this, claiming that he was not competent to

conclude a contract. The applicant, on the other hand, claimed that

the administrative company had intended to conclude a lease contract

with him and that the outcome of the meeting on 22 April 1988 supported

his belief that such a contract had existed by virtue of an oral

agreement, and that he could remain in the apartment.

Three persons had been present at the meeting of 22 April 1988,

namely the applicant, his wife, and L. Thus, when attempting to

reconstruct the content of the meeting of 22 April 1988 before the

Geneva First Instance Court, the applicant placed importance on the

statement of his wife as she was the only witness who could confirm his

allegation that an oral agreement had indeed been concluded.

At the hearing, the Geneva First Instance Court, when aiming to

determine the content of the meeting of 22 April 1988, heard L., the

applicant and his wife. Only L. was sworn as a witness under oath, not

the applicant's wife.

The Geneva First Instance Court found that no written or oral

contract had been concluded between the parties. It is true that the

Court did not rely on the statement of any particular person who had

testified at the hearing. Nevertheless, given that only three persons

had been present at the meeting of 22 April 1988, the Court must have

relied on L.'s statement rather than the applicant's view, as confirmed

by his wife.

The Federal Court found that the statement of the applicant's

wife had no probative value ("sans valeur probante"). The Federal

Court thus expressly confirmed that there was a formal difference in

the quality of evidence given by L. as opposed to the statement given

by the applicant's wife.

The applicant's wife was prevented by law from making a statement

as a witness under oath. Thus, Section 225 para. 1 on the Geneva Code

of Civil Procedure expressly states that the spouse of one of the

parties cannot be heard as a witness.

According to the Convention organs' case-law, importance must be

"attached to appearances and to the increased sensitivity of the public

to the fair administration of justice" (Eur. Court H.H., Borgers

judgment of 30 October 1991, Series A No.214-B, p. 31, para. 24).

It is not up for the Convention organs to indicate those means

to States which will ensure that their legal systems are in compliance

with the requirements of a fair hearing under Article 6 para. 1 of the

Convention (see Eur. Court H.R., Colozza judgment of 12 February 1985,

Series A no. 89, p. 15 et seq. para. 30). It suffices to point out

that in the proceedings before the Geneva courts the applicant was both

formally and in fact placed at a disadvantage since L. could make a

statement as a witness under oath whereas the applicant's wife could

not. Moreover, the testimony of the applicant's wife was treated to

be of no probative value by virtue only of her husband/wife status.

The testimony of a husband/wife in respect of a case involving the

spouse may be approached with caution but should not, in my opinion,

be rejected from the outset merely because of this status.

In my opinion the applicant was placed at a substantial

disadvantage vis-à-vis his opponent and, consequently, the requirement

of equality of arms has not been respected. Thus, the applicant did

not have a fair hearing within the meaning of Article 6 para. 1 of the

Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

10 December 1990 Introduction of application

4 February 1991 Registration of application

Examination of admissibility

31 March 1993 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

8 June 1993 Government's observations

10 July 1993 Applicant's observations in reply

5 July 1994 Commission's decision to declare

application admissible

Examination of the merits

2 August 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

7 October 1994 Applicant's observations

17 October 1994 Government's observations

7 December 1994 Commission's consideration of state of

and 11 April 1995 proceedings and decision not to apply

Article 29 of the Convention

17 May 1995 Commission's deliberations on the merits,

final votes and consideration of text of

the Report

24 May 1995 Adoption of Report

Menu

ANKERL v. SWITZERLAND

ANKERL v. SWITZERLAND

LEXI