Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17771/91

R.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 9 September 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 14) . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5 - 9) . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 10 - 14) . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 32). . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 15 - 28) . . . . . . . . . . . . . . .3

a) Adoption of the applicant's child

(paras. 15 - 19). . . . . . . . . . . . .3

b) Appeal proceedings before the Zurich

authorities

(paras. 20 - 21). . . . . . . . . . . . .3

c) Proceedings before the Federal Court

(paras. 22 - 27). . . . . . . . . . . . .4

d) Proceedings concerning the subsistence

allowance

(para. 28). . . . . . . . . . . . . . . .5

B. Relevant domestic law and practice

(paras. 29 - 32) . . . . . . . . . . . . . . .5

a) Swiss Civil Code

(para. 29). . . . . . . . . . . . . . . .5

b) Federal Judiciary Act

(paras. 30 - 31). . . . . . . . . . . . .5

c) Subsequent developments

(para. 32). . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 33 - 53). . . . . . . . . . . . . . . . . .7

A. Complaints declared admissible

(para. 33) . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 34) . . . . . . . . . . . . . . . . . .7

C. Article 6 of the Convention

(paras. 35 - 52) . . . . . . . . . . . . . . .7

a) Issue of submitting further evidence

(paras. 37 - 39). . . . . . . . . . . . .7

b) Issue of an oral hearing

(paras. 40 - 45). . . . . . . . . . . . .8

c) Issue of commenting on the statement of

the opposing party

(paras. 46 - 52). . . . . . . . . . . . .9

CONCLUSION

(para. 53). . . . . . . . . . . . . . . . . . . . 10

SEPARATE OPINION OF MR. H. DANELIUS,

JOINED BY MR. S. TRECHSEL . . . . . . . . . . . . . . . . . 11

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 12

APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . 13

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, a Swiss citizen born in 1944, is a business

employee residing in Zurich. Before the Commission he is

represented by Mr. L.A. Minelli, a lawyer residing at Forch in

Switzerland.

3. The application is directed against Switzerland. The

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 application, insofar as declared admissible, concerns

the applicant's complaints under Article 6 of the Convention

that in proceedings before the Federal Court concerning the

adoption of his child he could not comment on the statement of

the opposing party; that he could not request the taking of

evidence; and that he did not have an oral hearing.

B. The proceedings

5. In respect of the complaints under Article 6 para. 1 of the

Convention the Commission considered that the application had

been introduced on 28 January 1991 (see admissibility decision,

at page 17). The application was registered on 7 February 1991.

6. On 6 January 1992 the Commission decided to communicate the

application to the respondent Government and invite them to

submit written observations on the admissibility and merits in

respect of the complaints under Article 6 para. 1 of the

Convention.

7. The Government's observations were received by letter dated

12 March 1992. The applicant submitted his observations in reply

on 17 April 1992.

8. On 12 October 1992 the Commission declared the application

inadmissible insofar as it concerned the applicant's complaints

under Article 8 of the Convention that his child had been adopted

without his consent. The remainder of the application

(complaints under Article 6 para. 1 of the Convention) was

declared admissible.

9. After declaring the case admissible, the Commission, acting

in accordance with Article 28 (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

10. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations

and votes, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ RUIZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM J.-C. GEUS

M. P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

11. The text of this Report was adopted on 9 September 1993 and

is now transmitted to the Committee of Ministers of the Council

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

Convention.

12. 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.

13. 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.

14. 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

a) Adoption of the applicant's child

15. On 24 March 1987 Ms. K. gave birth to a girl R. The

applicant from the beginning accepted paternity. On

26 March 1987 he declared in writing that he supported the

decision of Ms. K. to entrust the child to foster parents who

eventually might adopt the child. R. has lived with foster

parents since 30 March 1987. On 8 May 1987 Ms. K. signed a

declaration according to which she accepted a subsequent adoption

of R.

16. At the end of May 1987 the applicant wrote to the Youth

Secretariat of the Zurich-Land District, explaining that only

with difficulty could he accept that R. would no longer grow up

with her mother. However, after long conversations with Ms. K.

he accepted her decision. The applicant further wrote that the

prospect never to be allowed to see R. was incomprehensible and

painful. By letter of 26 June 1987 the Youth Secretary G.

replied that the applicant's declaration to respect Ms. K.'s

decision also implied that he would not do anything that could

endanger the future adoption; contacts between the applicant and

the child would only create unnecessary problems and not lie in

the child's interests.

17. On 27 July 1987 the Oberengstringen Guardianship Office

(Vormundschaftsbehörde) declared that R.'s father was unknown and

had not taken care of the child. With reference inter alia to

Section 265c of the Swiss Civil Code (Zivilgesetzbuch; see below,

Relevant domestic law and practice) the Office ruled therefore

that the father's consent to R.'s adoption was not necessary.

The Office also withdrew Ms. K.'s parental custody over R. and

appointed the Youth Secretary G. as the child's guardian. The

decision was not served on the applicant.

18. As from September 1988 the applicant was represented by a

lawyer.

19. In a letter of 5 September 1988 to the Oberengstringen

Guardianship Office, the applicant stated that he wished to rear

R. together with Ms. K., and that he had not consented to R.'s

adoption and did not intend to do so. A copy of this letter was

sent to the Youth Secretary G. who then transmitted a copy of the

decision of the Guardianship Office of 27 July 1987 to the

applicant.

b) Appeal proceedings before the Zurich authorities

20. The applicant unsuccessfully appealed against the decision

of 27 July 1987 to the Zurich District Council (Bezirksrat).

During these proceedings he was heard by a member of the District

Council.

21. The applicant's subsequent appeal to the Zurich Ministry of

Justice (Justizdirektion) was dismissed on 4 January 1990. In

its decision the Ministry found in particular that it could not

be said that the child's father was unknown. However, it

considered the conditions of Section 265c para. 2 of the Civil

Code to be satisfied.

c) Proceedings before the Federal Court

22. The applicant then filed an appeal (Berufung) with the

Federal Court (Bundesgericht). In the appeal statement, which

was prepared by a lawyer, the applicant explained in detail how

he had shown a serious interest in his child. He complained

that the authorities' conduct disclosed that they were determined

to proceed with an adoption. Finally he submitted that he

intended to marry R.'s mother. This appeal was communicated to

the Zurich Ministry of Justice for observations.

23. On 9 February 1990 the Zurich Ministry of Justice filed its

observations on the appeal, requesting the Federal Court to

dismiss it. The applicant did not become aware of these

observations until 6 September 1990, i.e. after the Federal Court

had given its judgment.

24. In its observations the Ministry of Justice found inter alia

that the applicant, in his descriptions of the events, had left

out relevant parts, for instance his statement of May 1987.

While he had expressed an interest in visiting the child, he no

longer pursued his efforts once the guardian told him that this

was not possible. The Ministry found that in fact the applicant

was not as helpless as he was making himself out to be. No

indications transpired from the applicant's appeal concerning the

recognition of paternity. The applicant mostly raised claims

which had been made in the proceedings at issue and had no basis

whatsoever. In fact the applicant no longer even knew where he

had unsuccessfully attempted to obtain a birth certificate of the

child.

25. On 20 April 1990 the Federal Court dismissed the appeal

without conducting an oral hearing. Notification of the

operative part of the decision, stating that the appeal was

dismissed, was served on the applicant on 23 April 1990 and

received by him, at the earliest, on 25 April 1990. The reasons

for the decision were dispatched to the applicant's lawyer on

27 July 1990. The decision stated that the Federal Court followed

the procedure provided for in Section 60 paras. 1 and 2 of the

Federal Judiciary Act (Organisationsgesetz; see below, Relevant

domestic law and practice). The decision further referred to a

statement of the Ministry of Justice of the Canton of Zurich that

the appeal should be dismissed.

26. In its decision the Federal Court found that the conditions

of Section 265c para. 2 of the Civil Code were met. The Court

noted in particular that upon R.'s birth the applicant had

accepted that he was not in a position to take care of her. In

his letter of May 1987 the applicant had not stated that he

wanted an intensive contact with R. but only that he was sad that

she could not grow up with her mother. Moreover, he had not at

the time reacted to Youth Secretary G.'s reply of 26 June 1987.

27. The Court noted that the applicant had not until

5 September 1988 contacted the Guardianship Office. However, he

had not explained in which way he would personally take care of

the child. The Court further found that the applicant had not

applied for legal recognition of his paternity until April 1989

when the Zurich District Council had set him a time-limit to

prove it.

d) Proceedings concerning the subsistence allowance

28. On 21 December 1990 the Zurich District Court

(Bezirksgericht) ordered the applicant to pay a monthly

subsistence allowance to R. From this decision it also

transpires that R.'s adoption had entered into legal force.

B. Relevant domestic law and practice

a) Swiss Civil Code

29. According to Section 265c of the Swiss Civil Code

(Zivilgesetz-buch), consent of a parent to a child's adoption

need not be obtained "1. if he is unknown, absent for a longer

period of time and of unknown residence, or permanently of

unsound mind; 2. if he has not seriously taken care of the child"

("1. wenn er unbekannt, mit unbekanntem Aufenthalt länger

abwesend oder dauernd urteilsunfähig ist, 2. wenn er sich um das

Kind nicht ernstlich gekümmert hat").

b) Federal Judiciary Act

30. According to Section 62 of the Federal Judiciary Act

(Organisa-tionsgesetz) in the version in force at the relevant

time, upon appeal an oral hearing should in principle take place

before the Federal Court in non-pecuniary civil cases. Section

60 in the version in force at that time dealt with cases in which

the Federal Court decided on the appeal without public

deliberations. Section 60 stated:

[Translation]

"1. The Federal Court may immediately or after obtaining

a reply, without public deliberations and unanimously,

a. decide that it will not deal with the appeal ...

...

2. The Federal Court may also, after the time-limit for

an accessory appeal has expired, at once or after obtaining

a reply without public deliberations, decide, provided it

is unanimous, to dismiss the appeal if it regards the

appeal without any doubt as being unfounded."

[German]

"1. Das Bundesgericht kann sofort oder nach Einholung der

Antwort ohne öffentliche Beratung bei Einstimmigkeit

a. beschliessen, dass auf die Berufung nicht eingetreten

wird ..

...

2. Ebenso kann das Bundesgericht nach Ablauf der Frist

für die Anschlussberufung sofort oder nach Einholung der

Antwort ohne öffentliche Beratung bei Einstimmigkeit die

Berufung abweisen, wenn er sie ohne irgendwelchen Zweifel

als unbegründet erachtet."

31. As regards the taking of evidence, Section 55 para. 1 c) in

the version in force at the relevant time stated that the appeal

must not contain "statements which are directed against the

establishment of the facts, allegations of new facts, new

objections, contestations and means of evidence" ("das Vorbringen

neuer Tatsachen, neue Einreden, Bestreitungen und Beweismittel").

Section 63 para. 2 states, in so far as relevant:

[Translation]

"The Federal Court must in its decision rely on the

determination of the last Cantonal instance in respect of

the factual circumstances, except if they were reached in

violation of rules of evidence of Federal law."

[German]

"Das Bundesgericht hat seiner Entscheidung die

Feststellungen der letzten kantonalen Instanz über

tatsächliche Verhältnisse zugrunde zu legen, es wäre denn,

dass sie unter Verletzung bundesrechtlicher

Beweisvorschriften zustande gekommen sind."

c) Subsequent developments

32. The Federal Court has subsequently been confronted in

another case with a public law appeal (staatsrechtliche

Beschwerde) directed against the guardianship authorities of the

Canton of Thurgau. On 17 December 1992 the Federal Court upheld

the public law appeal. In its decision it instructed "the Canton

of Thurgau ... to determine the jurisdiction in guardianship

matters in such a manner that in cases such as the present one

at least at one level a court with full powers will examine all

legal and factual issues" ("der Kanton Thurgau wird ... die

Zuständigkeit im Vormundschaftsbereich so zu ordnen haben, dass

in Angelegenheiten der vorliegenden Art wenigstens in einer

Instanz ein Gericht mit umfassender Kognition die Rechts- und

Tatfragen prüft").

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

33. The Commission has declared admissible the applicant's

complaints that in proceedings before the Federal Court

concerning the adoption of his child (a) he could not comment on

the statement of the opposing party; (b) he could not request the

taking of evidence; and (c) he did not have an oral hearing.

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 in particular in that in the proceedings before the

Federal Court (a) the applicant could not request the taking of

evidence; (b) the applicant did not have an oral hearing; and (c)

the applicant could not comment on the statement of the opposing

party.

C. Article 6 (Art. 6) of the Convention

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

insofar as relevant:

"In the determination of his civil rights and obligations

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

Judgment shall be pronounced publicly but the press and

public may be excluded from all or part of the trial in the

interest of morals, public order or national security in a

democratic society, where the interests of juveniles or the

protection of the private life of the parties so require,

or to the extent strictly necessary in the opinion of the

court in special circumstances where publicity would

prejudice the interests of justice."

36. The Commission considers, and this has not been disputed

by the parties, that the present case, relating to the adoption

of the applicant's child, concerned "the determination of his

civil rights and obligations" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention. This provision was

therefore applicable to the proceedings at issue.

a) Issue of submitting further evidence

37. The applicant complains under Article 6 para. 1 (Art. 6-1)

of the Convention that he could not request the taking of

evidence before the Federal Court.

38. The Government refer to Sections 55 para. 1 (c) and 63

para. 2 of the Federal Judiciary Act. According to these

provisions, the appeal statement must not contain new means of

evidence; and the Federal Court was bound by the determination

of the facts by the last Cantonal instance (see above, para. 31).

39. The Commission considers that the Federal Court, deciding

as the only court on the applicant's claims, considered factual

issues of the case (see above, paras. 26 et seq.). The

Commission further recalls that in his appeal statement the

applicant explained in detail how he had shown a serious interest

in his child (see above, para. 22). Thus, it may have been

important for the applicant to submit evidence contesting the

assessment of the necessity of adoption by the Zurich

administration. However, the Federal Judiciary Act expressly

excluded this possibility.

b) Issue of an oral hearing

40. The applicant complains under Article 6 para. 1 (Art. 6-1)

of the Convention that he never had an oral hearing before a

court.

41. The Government contend that the applicant did not ask for

an oral hearing before the Federal Court. They note that the

Federal Judiciary Act did not envisage such a right.

42. In the Commission's opinion, as the Federal Court was the

only court deciding on the applicant's claims, Article 6 para. 1

(Art. 6-1) of the Convention entitled him to a hearing before

that Court, which he did not have.

43. Article 6 para. 1 (Art. 6-1) of the Convention does not

prevent a person from waiving of his own will, either expressly

or tacitly, the entitlement to have his case heard orally.

However, a waiver must be made in an unequivocal manner and must

not run counter to important public interests (see Eur. Court

H.R., HÃ¥kansson and Sturesson judgment of 21 February 1990,

Series 171-A, p. 20, para. 67; Schuler-Zgraggen judgment of

24 June 1993, para. 58).

44. The applicant did not ask for a hearing. As in the

HÃ¥kansson and Sturesson case, where "Swedish law expressly

provided for the possibility of holding public hearings" (loc.

cit.), Section 62 of the Swiss Federal Judiciary Act also

permitted the Federal Court to order an oral hearing in such

cases (see above, para. 30). In addition, however, Section 60

para. 2 of the Swiss Federal Judiciary Act also provided for the

possibility of the Federal Court, if unanimous, to dismiss the

appeal "at once or after obtaining a reply ... if it regards the

appeal without any doubt as being unfounded" (see above,

para. 30). The Federal Judiciary Act thus excluded an oral

hearing under certain conditions upon which the applicant had no

influence.

45. It is true that the applicant could have asked for a hearing

under Section 62 of the Federal Judiciary Act. However, in the

present case, the Federal Court dismissed the applicant's appeal

according to Section 60 para. 2 of the Federal Judiciary Act (see

above, para. 25). The Government have not shown that in view of

the categoric wording of Section 60 para. 2 the applicant's

request to have an oral hearing would have had any reasonable

prospects of success. It could not therefore have been expected

of him to ask for an oral hearing.

c) Issue of commenting on the statement of the opposing party

46. The applicant complains under Article 6 para. 1 (Art. 6-1)

of the Convention that in the proceedings before the Federal

Court he could not comment on the statement of the opposing

party.

47. In the Government's view, the applicant could have applied

for leave to comment on a possible statement of the other party,

though they again refer to Section 60 of the Federal Judiciary

Act (see above, para. 30).

48. The Commission recalls that the right to a fair hearing,

which includes the principle of equality of arms, implies that

everyone who is a party to civil or criminal proceedings shall

have a reasonable opportunity of presenting his case to the court

under conditions which do not place him at a substantial

disadvantage as compared with his opponent. However, this right

does not preclude States from regulating the exchange of

memorials. Thus, it must be distinguished, for instance, whether

the Court concerned was competent to examine all issues of the

case, or merely questions of law, and whether the applicant was

granted some other opportunity of commenting on the statement of

the opposing party (see No. 2804/66, Dec. 16.7.68, Yearbook 11

p. 381 at p. 398 et. seq.; No. 10938/84, dec. 9.12.86, D.R. 50

p. 98 at p. 115; mutatis mutandis Eur. Court H.R., Brandstetter

judgment of 28 August 1991, Series A no. 211, p. 27, para. 67;

Ruiz-Mateos judgment of 23 June 1993, Series A no. 262,

para. 63).

49. The applicant's appeal to the Federal Court was communicated

to the Zurich Ministry of Justice for observations. On

9 February 1990, the Ministry filed its observations, requesting

the Federal Court to dismiss the appeal. In its statement, the

Ministry commented on the applicant's appeal in the light of its

own decision of 4 January 1990. The applicant did not become

aware of the statement of the opposing party until

6 September 1990, i.e. after the Federal Court had given its

judgment (see above, paras. 22 et seq.).

50. Thus, the opposing party could reply to the applicant's

statements whereas the applicant had no knowledge of the other

party's views. He was, therefore, in a situation of inequality

towards the opposing party. As the applicant was not otherwise

heard (see above, paras. 41 et seq.) and the Federal Court also

examined factual issues of the case (see above, paras. 26 et

seq.), he was placed at a substantial disadvantage in comparison

with his opponent.

51. In the Government's submissions, the applicant could in

advance have applied for leave to comment on any statement of the

opposing party.

52. The Commission recalls that according to Section 60 para. 2

of the Federal Judiciary Act the Federal Court could, if

unanimous, dismiss the appeal at once, or immediately after it

had received the statement of the opposing party (see above,

para. 30). The Government have not shown that in view thereof

a request by the applicant for leave to comment on any statement

of the opposing party would have had reasonable prospects of

success. It could not therefore have been expected of him to

make such a request in advance.

CONCLUSION

53. The Commission concludes, by a unanimous vote, that there

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

Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

SEPARATE OPINION OF MR. H. DANELIUS

JOINED BY MR. S. TRECHSEL

I agree with the conclusion of the Commission that there has

been a violation of Article 6 para. 1 of the Convention in the

present case. However, in regard to the issue of an oral

hearing, I wish to make the following additional observations.

It follows from the Håkansson and Sturesson judgment that

a party's failure to request an oral hearing can in many

circumstances be interpreted as a tacit waiver of the right to

such a hearing. The question arises whether such an

interpretation would be justified also in the present case.

According to Section 62 of the Swiss Federal Judiciary Act,

an oral hearing before the Federal Court is in principle

compulsory in non-pecuniary civil cases. The exceptions referred

to in Section 60 para. 2 of the Act concern cases where it is

clear that an appeal must be rejected on the ground of being

unfounded.

This being the legal background, it is obvious that the

applicant, when appealing to the Federal Court, wished his appeal

to be dealt with under Section 62, which would automatically lead

to an oral hearing being held, and not under Section 60 para. 2,

which would result in the rejection of his appeal. Consequently,

the fact that he did not specifically request an oral hearing

cannot, in these circumstances, be interpreted as a tacit waiver

of such a hearing.

For these reasons, and having regard to the fact that the

Federal Court was the only court which dealt with the applicant's

case, I agree with the Commission in finding that the rejection

of the appeal without an oral hearing was not in conformity with

the requirements of Article 6 para. 1 of the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

31 October 1990 and

21 January 1991 Introduction of the application

7 February 1991 Registration of the application

Examination of Admissibility

6 January 1992 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application

12 March 1992 Government's observations

17 April 1992 Applicant's observations in reply

12 October 1992 Commission's decision to declare the

application in part admissible and in

part inadmissible

Examination of the merits

5 December 1992 Commission's consideration of the

state of proceedings

31 August 1993 Commission's deliberations on the

merits, final vote

9 September 1993 Adoption of the Report

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R. v. SWITZERLAND

R. v. SWITZERLAND

LEXI