Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application Nos. 1) 15252/89 2) 15628/89

3) 17384/90

N.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 14 May 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 16). . . . . . . . . . . . . . . . . . . . . 1

A. The applications

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

B. The proceedings

(paras. 5 - 11). . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12 - 16) . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17 - 50) . . . . . . . . . . . . . . . . . . . . 4

A. The particular circumstances of the case

(paras. 17 - 50) . . . . . . . . . . . . . . . . . 4

1. Proceedings instituted against the

Canton of St. Gallen in 1983

(paras. 17 - 38). . . . . . . . . . . . . . . 4

a) Proceedings between 1966 and 1982

(paras. 17 - 19). . . . . . . . . . . . 4

b) Responsibility action of 1983

(paras. 20 - 38). . . . . . . . . . . . 4

2. Proceedings instituted against the

Swiss Confederation

(paras. 39 - 43). . . . . . . . . . . . . . . 6

B. Relevant domestic law

(paras. 44 - 50) . . . . . . . . . . . . . . . . . 7

1. Federal Judiciary Act (Organisationsgesetz)

(paras. 44 - 47). . . . . . . . . . . . . . . 7

2. Federal Responsibility Act

(Verantwortlichkeitsgesetz)

(para. 48). . . . . . . . . . . . . . . . . . 8

3. Responsibility Act of the Canton of

St. Gallen

(paras. 49 - 50). . . . . . . . . . . . . . . 8

III. OPINION OF THE COMMISSION

(paras. 51 - 99). . . . . . . . . . . . . . . . . . . .10

A. Complaints declared admissible

(para. 51) . . . . . . . . . . . . . . . . . . . .10

B. Points at issue

(para. 52) . . . . . . . . . . . . . . . . . . . .10

C. Proceedings instituted against the

Canton of St. Gallen

(paras. 53 - 77) . . . . . . . . . . . . . . . . .10

1. Applicability of Article 6 para. 1

of the Convention

(paras 54 - 62) . . . . . . . . . . . . . . .10

2. Relevant criteria in the application of

Article 6 para. 1 of the Convention

(para. 63). . . . . . . . . . . . . . . . . .11

3. Compliance with Article 6 para. 1 of

the Convention

(paras. 64 - 76). . . . . . . . . . . . . . .11

Conclusion

(para. 77) . . . . . . . . . . . . . . . . . . . .13

D. Imposition of court costs in advance

(paras. 78 - 97) . . . . . . . . . . . . . . . . .13

1. Applicability of Article 6 para. 1

of the Convention

(paras. 79 - 86). . . . . . . . . . . . . . .13

2. Compliance with Article 6 para. 1

of the Convention

(paras. 87 - 96). . . . . . . . . . . . . . .14

Conclusion

(para. 97). . . . . . . . . . . . . . . . . .16

E. Recapitulation

(paras. 98 - 99) . . . . . . . . . . . . . . . . .16

JOINT CONCURRING OPINION OF MM. GEUS AND MARXER . . . . . . . . . .17

JOINT DISSENTING OPINION of MM. BUSUTTIL, GÖZÜBÜYÜK,

WEITZEL, SCHERMERS, DANELIUS, Mrs. THUNE and Mr. ROZAKIS. . . . . .18

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .19

APPENDIX II : PARTIAL DECISION ON THE ADMISSIBILITY OF

8 APRIL 1991 . . . . . . . . . . . . . . . . . .21

APPENDIX III : DECISION ON THE ADMISSIBILITY OF

11 MAY 1992. . . . . . . . . . . . . . . . . . .34

APPENDIX IV : DECISION ON THE ADMISSIBILITY OF

13 May 1993 . . . . . . . . . . . . . . . . . . 45

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 applications

2. The applicant, a Swiss citizen born in 1935, is a pig-breeder

residing at Oberbüren in Switzerland.

3. The applications are directed against Switzerland. The

Government are represented by their Agent, Mr. O. Jacot-Guillarmod,

Deputy Director of the Federal Office of Justice, and their Deputy

Agent, Mr. Ph. Boillat, Head of the European Law and International

Affairs Section of the Federal Office of Justice.

4. The applicant complains under Article 6 para. 1 of the Convention

about the length of proceedings instituted against the Canton of

St. Gallen; and about advance court costs which he was asked to pay.

He also complained under Article 6 para. 1 of the Convention about the

length of criminal proceedings instituted against him (cf. para. 10

below).

B. The proceedings

5. The applicant originally filed six applications which were

introduced as follows: 1) No. 15252/89 on 23 April 1987;

2) No. 15628/89 on 25 July 1989; 3) No. 15629/89 on 18 May 1989;

4) No. 15630/89 on 18 May 1989; 5) No. 15857/89 on 3 October 1989; and

6) No. 17384/90 on 10 September 1990.

6. These applications were registered as follows: 1) 20 July 1989;

2) 4 October 1989; 3) 16 October 1989; 4) 16 October 1989;

5) 4 December 1989; and 6) 31 October 1990.

7. On 8 April 1991 the Commission decided to join the applications;

to communicate them in so far as they concerned complaints raised in

three applications (Nos. 15252/89, 15628/89 and 17384/90) about the

length of the proceedings instituted against the Canton of St. Gallen,

the length of the criminal proceedings instituted against the

applicant, and the court costs of 6,500 SFr which the applicant was

asked to pay in the proceedings against the Swiss Confederation; and

to declare inadmissible the remainder of the applications.

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

19 July 1991; the applicant's observations were dated

18 September 1991.

9. On 11 May 1992 the Commission declared Applications

Nos. 15252/89, 15628/89 and 17384/90 admissible.

10. In additional observations of 10 July 1992 the Government

submitted that the applicant had in fact not raised before the

Commission a complaint about the criminal proceedings instituted

against himself; and that he had not complied with the requirements of

the exhaustion of domestic remedies within the meaning of Article 26

of the Convention in respect of these proceedings and the proceedings

instituted against the Canton of St. Gallen.

Insofar as the Government maintained that the applicant had

failed to exhaust domestic remedies, the Commission found no basis for

applying Article 29 of the Convention.

Insofar as the Government maintained that the applicant had not

complained about the length of the criminal proceedings instituted

against himself, the Commission has obtained further submissions from

the parties and by decision of 13 May 1993 rejected this part of the

applications under Article 29 of the Convention.

11. 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

12. 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

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

J.-C. GEUS

M. P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOVICKI

13. The text of this Report was adopted on 14 May 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.

14. 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.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I, the Commission's decisions

on the admissibility of the applications as Appendices II, III and IV.

16. 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

1. Proceedings instituted against the Canton of St. Gallen in 1983

a) Proceedings between 1966 and 1982

---------------------------------

17. In 1965/1966 the applicant's pigs became ill and had to be

killed. The applicant was of the opinion that the illness had been

caused by manure which had entered the drinking water supply. In 1966

he unsuccessfully introduced an action against the Oberbüren municipal

and water corporation, claiming damages of 150,000 SFr. Following

further appeals, the St. Gallen Cantonal Court (Kantonsgericht) in 1975

upheld the action to the amount of 85,844 SFr.

18. On 24 June 1981 the applicant introduced a first responsibility

action (Verantwortlichkeitsklage) against the Canton of St. Gallen,

claiming damages of 653,273.60 SFr on account of the long duration of

the previous proceedings. The action was dismissed on 10 December 1982

by the Federal Court (Bundesgericht) on account of forfeiture

(Verwirkung).

19. Between 1971 and 1978 bankruptcy proceedings were conducted

against the applicant.

b) Responsibility action of 1983

-----------------------------

20. On 12 December 1983 the applicant introduced with the Federal

Court a responsibility action under Section 42 of the Federal Judiciary

Act (see below, Relevant domestic law), numbering three pages, against

the Canton of St. Gallen. He complained inter alia that the

bankruptcy authorities had carelessly conducted the bankruptcy

proceedings against him and claimed damages of 1,505,156.85 SFr.

21. On 6 January 1984 the Federal Court invited the applicant to

consult a lawyer and to introduce an improved action. Mr. T., a

lawyer, then represented the applicant. On 6 February, 28 March and

7 May 1984 T. asked for a prolongation of the time-limit to file the

improved action.

22. On 7 May 1984 T. also filed a request for legal aid (Armenrecht).

In a letter of 25 May 1984 the Court informed the applicant that it saw

no responsibility of the Canton of St. Gallen for the damages claimed.

On 25 June 1984 the applicant informed the Federal Court that T. no

longer represented him; the applicant also requested a prolongation of

the time-limit. A further request for prolongation was filed on

20 August 1984.

23. On 3 September 1984 the applicant filed an improved action,

numbering 110 pages, in which he claimed 1,320,783.20 SFr. Therein he

complained inter alia of the continuing damaging conduct of the

St. Gallen authorities. He alleged in particular that until 1983 he

had not been able to consult the various documents, for instance the

minutes of the bankruptcy proceedings and the final statement of the

account (Schlussabrechnung); he also alleged that the bankruptcy

administration had failed to raise certain claims for damages arising

out of the applicant's bankruptcy (Folgeschaden) against a municipality

and water corporation.

24. The Court held a preparatory hearing on 20 February 1985 at which

the applicant was present. On 26 February 1985 the Court granted the

applicant legal aid and, upon his request, appointed H. as his lawyer.

25. On 23 August 1985, following a settlement with his previous

lawyers against whom he had introduced claims, the applicant withdrew

various claims against the Canton of St. Gallen amounting to

653,273.60 SFr from his above action.

26. Thereupon, the applicant unsuccessfully attempted to negotiate

a friendly settlement with the Canton of St. Gallen.

27. On 6 August 1986 B., a substitute for the lawyer H., introduced

with the Federal Court a further improved action. Therein he claimed

under Item No. (1) 256,501.40 SFr damages for the harm caused by the

polluted drinking water to the applicant's pig-breeding. Under

Items Nos. (2) - (4) he further requested approximately 400,000 SFr.

28. On 11 August 1986 the Federal Court invited the Canton of

St. Gallen to reply to the action before 30 September 1986. The

time-limit was prolonged. On 30 September 1986 the Federal Court

decided to limit the proceedings to Item No. (1) of the applicant's

action of 6 August 1986. The Canton of St. Gallen filed its reply on

15 December 1986.

29. On 23 October 1987 H. informed the Federal Court that the

applicant had withdrawn his power of attorney. By letter of

2 November 1987 the Federal Court replied that in view of the

conditions of legal aid granted on 26 February 1985 this was not

possible. On 26 November 1987 the Court rejected the applicant's

request for a new lawyer.

30. On 15 December 1987, at a preparatory hearing, the parties could

not agree on a friendly settlement. The Court then requested the

parties to submit further written statements.

31. On 1 February 1988 the applicant requested suspension of the

proceedings as the diet of the Canton of St. Gallen was dealing with

the case. This was refused by the Court on 19 February 1988. H. then

asked for a prolongation of the time-limit for filing a further

statement.

32. The applicant filed his statement on 18 April 1988. He then

wrote to the Court on 27 May 1988, insisting on the withdrawal of H.'s

power of attorney. On 31 May 1988 H. filed a separate statement. On

11 July 1988 the applicant complained to the Court that he had received

no reply to his letter of 27 May 1988, and that the proceedings lasted

too long.

33. The Canton of St. Gallen filed its reply on 22 August 1988. On

2 September 1988 the written proceedings were closed.

34. Following a hearing on 25 September 1988 the Federal Court

dismissed the applicant's action on 25 October 1988. The judgment

numbering ten pages was served on the applicant on 18 November 1988.

Therein the Court found that in view of the legal aid granted to the

applicant on 26 February 1985 it could not consider the submissions

filed by the applicant on 18 April 1988.

35. In its decision the Court considered that the action had to be

dismissed as the Canton of St. Gallen lacked standing. In particular,

according to the 1980 Additional Act there was no primary

responsibility of the Canton of St. Gallen for acts of bankruptcy

officials at the time of the damaging conduct complained of. Before

the Additional Act entered into force, responsibility proceedings had

to be primarily directed against the officials concerned, and only

subsidiarily against the Canton. The Court saw no indication of a

continuing damaging conduct of the bankruptcy authorities after the

Additional Act entered into force.

36. A further decision of the Federal Court of 25 October 1988

concerned legal aid. The Court noted therein that it had dismissed the

applicant's claims as to Item No. (1) of his ameliorated action of

6 August 1986. The remaining items lacked prospects of success inter

alia as certain issues had definitively been decided on

10 December 1982. As a result, the legal aid granted to the applicant

was withdrawn. The Court requested the applicant to pay advance costs

of 6,000 SFr. If this sum was not paid, the Court threatened to

declare inadmissible the remaining items of the applicant's action.

37. By letter of 16 December 1988 the applicant wrote to the Federal

Court that he did not have the means to pay the sum of 6,000 SFr.

38. On 6 January 1989 the Federal Court declared inadmissible the

remaining items of the applicant's action on the ground that he had

failed to pay the costs in advance.

2. Proceedings instituted against the Swiss Confederation

39. Following the decision of the Federal Court of 25 October 1988

(see above, para. 34), the applicant introduced with the Federal

Finance Department (Eidgenössisches Finanzdepartement) a claim for

damages, resulting from the Court's decision. The Department dismissed

the claim on 23 March 1989.

40. The applicant then introduced with the Federal Court a

responsibility action against the Swiss Confederation (Schweizerische

Eidgenossenschaft) in which he claimed damages amounting to

671,554.90 SFr. The applicant also challenged certain Federal Court

judges, and requested legal aid. In his action of 24 pages the

applicant alleged that the decision of the Federal Court of

25 October 1988 had been wrong in fact and in law. The applicant also

complained of the length of the proceedings, approximately five years,

alleging "obstruction of the proceedings" ("Prozessverschleppung") and

"infinite sloppiness" ("grenzenlose Schlamperei"). He complained of

damaging conduct on behalf of the Federal Court in that this length

prevented him from introducing proceedings against the Cantonal

authorities in time.

41. By decision of 14 December 1989 the Federal Court, consisting of

three judges, dismissed the applicant's challenge of Federal Court

judges. It further dismissed his request for legal aid. With

reference to Section 12 of the Federal Responsibility Act (see below,

Relevant domestic law) it found that the previous decisions of the

Federal Court had become definitive, and their legality could not be

examined in responsibility proceedings. The action a priori lacked

prospects of success (erscheint von vorneherein aussichtslos), and the

applicant was invited to pay advance court costs of 6,500 SFr.

42. The applicant then requested the reopening of the previous

proceedings. On 6 March 1990 the Federal Court rejected this request

and again invited the applicant to pay advance court costs amounting

to 6,500 SFr.

43. In a further decision of 4 May 1990 the Federal Court noted that

the applicant had failed to pay the advance court costs and declared

his action inadmissible.

B. Relevant domestic law

1. Federal Judiciary Act (Organisationsgesetz)

44. According to Section 42 of the Federal Judiciary Act the Federal

Court decides as the only court in civil litigation between Cantons and

private persons.

45. Section 153 of the Federal Judiciary Act concerns court costs.

According to para. 1 b) the costs will vary as a rule between 200 and

20,000 SFr, depending on the special circumstances of the case, e.g.

its particular volume or complexity.

46. Section 150 para. 1 of the Federal Judiciary Act provides:

"Whoever calls upon the Federal Court in civil cases must, upon

an order of the President, provide a security for the probable

court costs (Section 153); for particular reasons, this security

may exceptionally be waived in part or completely."

"In der Zivilrechtspflege hat, wer das Bundesgericht anruft, nach

Anordnung des Präsidenten die mutmasslichen Gerichtskosten

(Art.153) sicherzustellen; ausnahmsweise kann aus besonderen

Gründen diese Sicherstellung ganz oder teilweise erlassen

werden."

47. Section 152 para. 1 of the Federal Judiciary Act states:

"Upon request the Federal Court will exempt an indigent party,

whose application does not appear without prospects of success,

from paying the court costs ..."

"Das Bundesgericht gewährt einer bedürftigen Partei, deren

Rechtsbegehren nicht aussichtslos erscheint, auf Antrag Befreiung

von der Bezahlung der Gerichtskosten ..."

2. Federal Responsibility Act (Verantwortlichkeitsgesetz)

48. The Federal Responsibility Act regulates the responsibility for

damages of the Confederation and her members of office and civil

servants. Section 1 states that the Act is applicable to members of

the Federal Court. According to Section 3 of the Act, the

Confederation becomes liable to compensate damage which a civil servant

causes illegally to third persons while exercising his official duties

(in Ausübung seiner amtlichen Tätigkeit Dritten widerrechtlich zufügt).

Section 10 of the Act provides that the Federal Court shall decide as

the only court on disputed claims. Section 12 states:

"The legality of orders, decisions and judgments which have

formally obtained legal force cannot be examined in

responsibility proceedings."

"Die Rechtmässigkeit formell rechtskräftiger Verfügungen,

Entscheide und Urteile kann nicht in einem

Verantwortlichkeitsverfahren überprüft werden."

3. Responsibility Act of the Canton of St. Gallen

49. According to Section 13 para. 1 of the Responsibility Act of the

Canton of St. Gallen in force until 1980, bankruptcy officials were

primarily responsible for their conduct in office; the Canton was only

subsidiarily responsible.

50. According to Section 13 para. 2 (d) of the 1980 Additional Act

(Nachtragsgesetz) the Canton or the municipality is directly

responsible to compensate damage which bankruptcy officials cause to

third persons. The Additional Act entered into force on

4 December 1980. Section 13 para. 2 is also applicable if the damage

was caused before 4 December 1980, as long as the damaging conduct

(schädigende Handlung) continued after the entry into force of the Act.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

51. The Commission has declared admissible the applicant's complaints

about the length of the proceedings instituted against the Canton of

St. Gallen; and the court costs which he was asked to pay in advance.

B. Points at issue

52. Accordingly, the issues to be determined are whether there has

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

- in respect of the length of the proceedings instituted against

the Canton of St. Gallen;

- in respect of the court costs which the applicant was asked to

pay in advance.

C. Proceedings instituted against the Canton of St. Gallen

53. The applicant complains that the proceedings which he instituted

against the Canton of St. Gallen were not terminated within a

reasonable time. He relies on Article 6 para. 1 (Art. 6-1) of the

Convention which includes the following provision:

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

any criminal charge against him, everyone is entitled to a ...

hearing within a reasonable time by (a) ... tribunal ..."

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

54. The Commission must first examine whether Article 6 para. 1

(Art. 6-1) of the Convention is applicable to the proceedings at issue.

This has not been contested by the parties.

55. Article 6 para. 1 (Art. 6-1) of the Convention extends to

"contestations" (disputes) over "civil rights" which can be said, at

least on arguable grounds, to be recognised under domestic law (see

Eur. Court H.R., Editions Périscope judgment of 26 March 1992, Series A

no. 234-B, para. 35).

56. As to the issue whether the applicant could claim a "right" under

domestic law, the Commission notes that the Responsibility Act of the

Canton of St. Gallen envisages since 1980 a responsibility action

against the Canton in case of damage alleged to be caused by the

bankruptcy officials. It also envisages the possibility of an action

against the Canton of St. Gallen in the case of damage caused before

1980, where the damaging conduct continued after the entry into force

of the revised law (see above, paras. 49 et seq.).

57. In the present case, the applicant filed a responsibility action

against the Canton of St. Gallen. Insofar as he was complaining about

acts committed before the revised Responsibility Act entered into force

in 1980, he should have filed his action against the bankruptcy

officials concerned. Nevertheless, the applicant also alleged that the

damaging conduct of the bankruptcy officials continued after the entry

into force of the revised law.

58. It is not for the Commission to examine the prospects of success

of an action brought on these grounds (see Eur. Court H.R., Editions

Périscope judgment, loc. cit., para. 38). It suffices to note that the

applicant was complaining of continuing damaging conduct by the

bankruptcy officials, and that the revised Responsibility Act envisages

in such cases the responsibility of the Canton of St. Gallen.

59. Thus, the "right" claimed by the applicant could be said, at

least on arguable grounds, to be recognised under domestic law.

60. As to the "civil" nature of the claim, Section 42 of the Federal

Judiciary Act expressly refers to the "civil" character of the

litigation at issue (see above, para. 52). Moreover, the action which

concerned damages was "pecuniary" in nature (see Eur. Court H.R.,

Editions Périscope judgment, loc. cit., para. 40). The right in

question was therefore a "civil right" within the meaning of Article 6

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

61. Finally, the Commission considers that in the present case there

was a "contestation" (dispute) concerning the existence of the right

claimed by the applicant.

62. It follows that Article 6 para. 1 (Art. 6-1) of the Convention

is applicable to the proceedings at issue.

2. Relevant criteria in the application of Article 6 para. 1

(Art. 6-1) of the Convention

63. The reasonableness of the length of proceedings must be assessed

in the light of the particular circumstances of the case and with the

help of the following criteria: the complexity of the case, the conduct

of the parties, and the conduct of the authorities dealing with the

case (see Eur. Court H.R., Vernillo judgment of 20 February 1991,

Series A no. 198, p. 17, para. 28).

3. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

64. The applicant submits in respect of the proceedings which he

introduced against the Canton of St. Gallen that, even if the file was

voluminous, the case could not be considered complex. He points out

that the Federal Court often did not speedily decide on his requests,

for instance to be granted legal aid; it also waited two years before

transmitting his statement of 3 September 1984 to the opposite party.

65. The Government submit that these proceedings were conducted

within a reasonable time as required by Article 6 para. 1 (Art. 6-1)

of the Convention. The applicant was largely responsible for any delay

by requesting five times in 1984 and once in 1988 a prolongation of

time-limits for filing a statement. The frequent change of lawyers

also slowed down proceedings. The Federal Court afforded the

applicant's case particular care, for instance by drawing his attention

to the possibility of improving his action. It attempted to accelerate

the proceedings while having due regard to the applicant's rights.

66. The Commission notes that the applicant introduced his

responsibility action before the Federal Court on 12 December 1983 (see

above, para. 20). Improved actions were introduced on 3 September 1984

and 6 August 1986. The Court dismissed part of the action on

25 October 1988 and declared the remainder inadmissible on

6 January 1989 (see above, paras. 34 et seq.).

67. The proceedings thus lasted from 12 December 1983 until

6 January 1989, i.e. a period of five years and 25 days. However, the

Commission notes that during this period the applicant had to

reformulate his actions.

68. As regards the complexity of the case, the Commission notes that

in his action for damages the applicant complained about damaging

conduct of bankruptcy officials. On 25 May 1984 the Federal Court

informed the applicant that the Canton of St. Gallen could not be made

responsible for the damages claimed (para. 22 above). It dismissed

part of the applicant's action on 25 October 1988 on the ground that

it saw no continuing damaging conduct on the part of the bankruptcy

officials concerned, and that the Canton of St. Gallen could not

therefore be made responsible for his claims. In its judgment of

6 January 1989 the Court dismissed the remainder of the action as the

applicant had failed to pay court costs in advance.

69. Thus, the complexity of the issues dealt with by the Federal

Court contributed to some extent to the length of the proceedings.

70. As regards the applicant's conduct, the Commission notes that his

original action was badly formulated, and that subsequently he filed

improved actions. Moreover, on five occasions in 1984 the applicant

requested a prolongation of the time-limit to file the improved action;

in 1988 he requested the suspension of the proceedings and a further

prolongation of a time-limit to file a statement. In 1984 and 1987 the

applicant withdrew his lawyer's power of attorney. The applicant was

also involved in settlement negotiations (see above, paras. 25 et seq.)

71. It follows that the applicant's behaviour contributed to the

length of the proceedings.

72. As regards the conduct of the authorities, the applicant has

referred to one particular period of inactivity of the Federal Court.

Thus, he claims that the Court waited two years until it transmitted

his statement of 3 September 1984 to the opposite party.

73. The Commission notes that, after the applicant filed his improved

action on 3 September 1984, the Federal Court held a preparatory

hearing on 20 February 1985. On 26 February 1985, it granted the

applicant legal aid and appointed a lawyer (see above, para. 24). The

period thereafter can be explained by the fact that the applicant was

involved in settlement negotiations (paras. 25 and 26, above).

74. However, once the applicant's lawyer introduced a further

improved action with the Federal Court on 6 August 1986 (see above,

para. 27), the Court obviously concluded that the applicant no longer

intended to pursue the settlement negotiations and that it could

continue examination of the case. As a result, the applicant's action

was communicated to the Canton of St. Gallen on 11 August 1986.

75. The Commission further notes the Federal Court's endeavours to

ensure that the applicant, a person without legal training, could

properly present his case, and that he was represented by a lawyer.

On the other hand, in order not unduly to prolong the proceedings, the

Federal Court at a later stage in fact refused the applicant's request

for a new lawyer (see above, para. 29). The applicant's request for

a suspension of the proceedings as the diet of the Canton of St. Gallen

was dealing with his case was also refused (para. 31, above).

76. In these circumstances, the Commission does not find that the

length of the proceedings complained of exceeded the "reasonable time"

referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

Conclusion

77. The Commission concludes, by 16 votes to 4, that there has been

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

respect of the length of the proceedings instituted against the Canton

of St. Gallen.

D. Imposition of court costs in advance

78. The applicant complains that in the proceedings which he

attempted to institute against the Swiss Confederation he was asked to

pay advance court costs amounting to 6,500 SFr. The applicant relies

on Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar

as relevant:

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

everyone is entitled to a .. hearing ... by (a) ... tribunal ..."

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

79. The Commission must first examine whether Article 6 para. 1

(Art. 6-1) of the Convention is applicable to the proceedings at issue.

This has not been contested by the Government.

80. Article 6 para. 1 (Art. 6-1) of the Convention extends to

"contestations" (disputes) over "civil rights" which can be said, at

least on arguable grounds, to be recognised under domestic law (see

Editions Périscope, loc. cit., para. 35).

81. As to the issue whether the applicant could claim a "right" under

domestic law, the Commission notes that the Federal Responsibility Act

envisages in principle the responsibility of the Confederation for

damage caused by civil servants, and that this Act also applies to

members of the Federal Court (see above, para. 48). On the other

hand, according to Section 12 of the Federal Responsibility Act, "the

legality of ... decisions and judgments which have formally obtained

legal force cannot be examined in responsibility proceedings"

(see ibid.).

82. In his action the applicant complained of the Court's conduct of

the proceedings, and that in view of the ensuing delays he had suffered

prejudice as he had missed other time-limits. The Federal

Responsibility Act does not exclude such a claim. There was no other

remedy under Swiss law to complain about the length of court

proceedings which had been terminated (see the Commission's decision

on admissibility of 11 May 1992, below at page 33).

83. It is not for the Commission to examine the prospects of success

of an action brought on these grounds (see Editions Périscope judgment,

loc. cit., para. 38). It suffices to note that the applicant was not

merely complaining of the decision, but of damage resulting from the

Federal Court's conduct, and that the Federal Responsibility Act

provides in such cases for a action before the Federal Court.

84. Thus, the "right" claimed by the applicant could be said, at

least on arguable grounds, to be recognised under domestic law. The

applicant's action would have led to the "determination" of this right.

Moreover, the action concerned damages and was thus "pecuniary" in

nature (see Editions Périscope judgment, loc. cit., para. 40). The

right in question was therefore a "civil right" within the meaning of

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

85. Finally, the Commission considers that in the present case there

was a "contestation" (dispute) concerning the existence of the right

claimed by the applicant.

86. It follows that Article 6 para. 1 (Art. 6-1) of the Convention

is applicable to the proceedings at issue.

2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

87. As regards the merits of his complaint, the applicant submits

that his case was not without prospects of success.

88. The Government submit, with reference to Section 153 para. 1 b)

of the Federal Judiciary Act, that the amount of advance costs fixed

in the present case was not disproportionate.

89. The Government further recall, with reference to

Section 152 para. 1 of the Federal Judiciary Act, that the Federal

Court had already granted legal aid to the applicant, and appointed a

lawyer, in the proceedings against the Canton of St. Gallen leading to

the decision of 25 October 1988. The applicant was indigent, but his

action was without any prospects of success. His responsibility action

concerned decisions of the Federal Court which had already become

final.

90. According to the Convention organs' case-law, Article 6 para. 1

(Art. 6-1) of the Convention secures to everyone the right to have any

claim relating to his civil rights and obligations brought before a

tribunal. In this way Article 6 para. 1 (Art. 6-1) embodies the right

to a court, of which the right of access, that is the right to

institute proceedings before courts in civil matters, constitutes one

aspect (see Eur. Court H.R., Philis judgment of 27 August 1991,

Series A no. 209, p. 20, para. 59).

91. However, Article 6 para. 1 (Art. 6-1) of the Convention does not

debar Contracting States from making regulations, in the interests of

the good administration of justice, concerning the access to courts.

Moreover, the right to free legal aid in civil cases is not as such

included among the rights and freedoms guaranteed by the Convention

(No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95; No. 10594/83, Dec. 14.7.87,

D.R. 52 p. 158). Furthermore, according to the Commission's case-law,

free legal aid, or the waiver of court costs, can be made dependent on

the prospects of success of the proceedings (No. 8158/78, Dec. 10.7.80,

D.R. 21 p. 95; No. 10594/83, Dec. 14.7.87, D.R. 52 p. 158).

92. Nevertheless, the regulations employed by the State must not

reduce the right of access to court to such an extent that the very

essence of the right is impaired (see Eur. Court H.R., Philis judgment,

loc. cit. p. 20 et seq., para. 59).

93. In the present case, it is undisputed between the parties that

the applicant was indigent.

94. The Commission notes that the applicant introduced with the

Federal Court a responsibility action against the Swiss Confederation.

Therein he claimed damages on account of the manner in which his

previous action had been handled, and of the allegedly wrong decision

of 25 October 1985 (see above, para. 40). He also requested legal aid.

The Court dismissed the request for legal aid, finding that the action

lacked prospects of success, and invited the applicant to pay in

advance court costs of 6,500 SFr (see above, para. 41). As he failed

to do so, the Court declared his action inadmissible on 4 May 1990 (see

above, para. 43).

95. However, the Federal Court in its decision of 14 December 1989

also informed the applicant of the reasons why his action lacked

prospects of success (see above, para. 41). The applicant was thus

fully aware of the prospective outcome of his action. He was also

aware of the reasons leading to the dismissal on 25 October 1988 and

6 January 1989 of his previous action against the Canton of St. Gallen

(see above, paras. 34 et seq.).

96. It follows that the imposition in advance of court costs on the

applicant constituted a regulation, in the interests of the good

administration of justice, of access to court which was not contrary

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

Conclusion

97. The Commission concludes, by 13 votes to 7, that there has been

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

respect of the imposition of advance court costs.

E. Recapitulation

98. The Commission concludes, by 16 votes to 4, that there has been

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

respect of the length of the proceedings instituted against the Canton

of St. Gallen (see above, para. 77).

99. The Commission concludes, by 13 votes to 7, that there has been

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

respect of the imposition of advance court costs (see above, para. 97).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

JOINT CONCURRING OPINION OF MM. GEUS AND MARXER

We agree that there has been no violation under

Article 6 para. 1 of the Convention in respect of the complaint of the

court costs which the applicant was asked to pay in advance. However,

we have reached this conclusion for a different reason.

We have examined whether Article 6 para. 1 of the Convention is

applicable to the proceedings at issue.

Article 6 para. 1 of the Convention extends to "contestations"

(disputes) over "civil rights" which can be said, at least on arguable

grounds, to be recognised under domestic law (see Editions Périscope

judgment of 26 March 1992, Series A no. 234-B, para. 35).

We have considered whether the applicant could claim the

"determination" of a "right" recognised under domestic law.

It is true that the Federal Responsibility Act envisages in

principle the responsibility of the Confederation for damage caused by

civil servants, and that this Act also applies to members of the

Federal Court (see above, para. 48).

In our opinion, however, the applicant was in effect contesting

the outcome of the proceedings before the Federal Court, in particular

the decision of 25 October 1988 which, in his view, was wrong.

According to Section 12 of the Federal Responsibility Act, "the

legality of ... decisions and judgments which have formally obtained

legal force cannot be examined in responsibility proceedings" (see

above, para. 48). This provision was quoted by the Federal Court

itself when it found that the applicant's action lacked prospects of

success (see above, para. 41).

The Federal Responsibility Act therefore expressly excluded the

damages claimed by the applicant. As a result, he cannot claim a

"civil right" within the meaning of Article 6 para. 1 of the

Convention.

Moreover, in view of the fact that the applicant was contesting

a decision which had become res judicata, the proceedings which he

attempted to introduce did not concern the "determination" of civil

rights or obligations within the meaning of Article 6 para. 1 of the

Convention (see No. 5495/72, Dec. 5.4.74, Collection 45 p. 54).

In our view, therefore, Article 6 para. 1 of the Convention is

not applicable to the proceedings of which the applicant complains.

JOINT DISSENTING OPINION of MM. BUSUTTIL, GÖZÜBÜYÜK, WEITZEL,

SCHERMERS, DANELIUS, Mrs. THUNE and Mr. ROZAKIS

We regret that we disagree with the majority in respect of the

complaint under Article 6 para. 1 of the Convention of the imposition

of advance court costs on the applicant.

While we consider that Article 6 para. 1 of the Convention is

applicable to these proceedings (see above, para. 84), we have reached

a different conclusion as to the compliance with this provision.

It is true that in the present case the Federal Court informed

the applicant on 14 December 1989 of the lack of prospects of success

of his action (see above, paras. 41 and 95). However, the right under

Article 6 para. 1 of the Convention of access to a court includes the

right to "determination" by that court of the applicant's claims within

the meaning of this provision. The decision by which the Federal Court

informed the applicant on 14 December 1989 of the lack of prospects of

success of his action cannot be regarded as the "determination" of the

applicant's claims.

In this respect we further note that the Federal Court was not

acting as an appeal or constitutional court, but as the first and only

court called upon to decide the applicant's claims.

In our opinion, the amount requested from the applicant, i.e.

6,500 SFr, was for an indigent person prohibitively high. It

effectively barred the applicant's access to the sole court competent

to deal with his claims. The imposition of the costs thus restricted

his access to court to such an extent that it impaired the very essence

of his right under Article 6 para. 1 of the Convention.

In our view, therefore, there has been a violation of

Article 6 para. 1 of the Convention in respect of the imposition of

advance court costs.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

1) 23 April 1987 Introduction of Application No. 15252/89

2) 25 July 1989 Introduction of Application No. 15628/89

3) 18 May 1989 Introduction of Application No. 15629/89

4) 18 May 1989 Introduction of Application No. 15630/89

5) 3 October 1989 Introduction of Application No. 15857/89

6) 10 September 1990 Introduction of Application No. 17384/90

1) 20 July 1989 Registration of Application No. 15252/89

2) 4 October 1989 Registration of Application No. 15628/89

3) 16 October 1989 Registration of Application No. 15629/89

4) 16 October 1989 Registration of Application No. 15630/89

5) 4 December 1989 Registration of Application No. 15857/89

6) 31 October 1990 Registration of Application No. 17384/90

Examination of Admissibility

8 April 1991 Commission's decisions to join the

applications; to invite the Government to

submit observations on the admissibility

and merits of the applications insofar as

they concern certain complaints in

Applications Nos. 15252/89, 15628/89 and

17384/90; and to declare inadmissible the

remainder of the applications;

19 July 1991 Government's observations

18 September 1991 Applicant's observations in reply

11 May 1992 Commission's decision to declare the

remainder of Applications Nos. 15252/89,

15628/89 and 17384/90 admissible

Examination of the merits

10 July 1992 Government's observations on the merits

17 October 1992) Commission's consideration of the state of

30 March 1993 ) proceedings

19 April 1993 Applicant's submissions

30 April 1993 Government's submissions

13 May 1993 Commission's deliberations on the merits

and final vote

14 May 1993 Adoption of the Report

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N. v. SWITZERLAND

N. v. SWITZERLAND

LEXI