Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26453/95

by H. W. K.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. S. TRECHSEL

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 January 1995

by H. W. K. against Switzerland and registered on 6 February 1995 under

file No. 26453/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1931, is a practising

lawyer residing in Zumikon in Switzerland. Before the Commission he

is represented by Mr T. Poledna, a lawyer practising in Zürich.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

a) Federal Court's judgment of 12 January 1994

The application relates to a statement about the applicant made

in a judgment of the Federal Court of 12 January 1994 concerning other

parties. The background to that judgment was an action which the

plaintiff P.J. brought against Ringier AG, a media company, claiming

a breach of personality rights (Persönlichkeitsrechte). The action

related to suggestions made in a Sunday newspaper that P.J. had been

involved in a sale of certain aeroplanes to Iran. In 1992 the Cantonal

Court (Kantonsgericht) of the Canton of Zug partly upheld the action,

ordering the newspaper to publish a judicial determination of the

facts.

The Court of Appeal of the Canton of Zug (Obergericht) dismissed

P.J.'s appeal (Berufung), his further appeal being dismissed on

12 January 1994 by the Federal Court (Bundesgericht). The Court's

bench consisted of the President S. and the judges F., B., W., and S.

In its judgment, the Court stated in consideration 2(a):

"2. ... a) What has happened to the plaintiff according to the

factual determination of the previous instance must, objectively

speaking, be considered as a serious breach. In the mass Sunday

newspaper Sonntags-Blick he was twice mentioned as a salesman of

19 F5-jets to Iran. This put a completely false light on his

role in the sale of these aeroplanes. The contested press

reports concern dealings with arms, i.e. a subject which has

meanwhile become very sensitive in view of the public discussion.

In addition, the plaintiff was mentioned in connection with (the

applicant) who at the critical time was repeatedly being attacked

by the media in view of his business activities (Zudem wurde der

Kläger im Zusammenhang mit erwähnt, der

im fraglichen Zeitraum aufgrund seiner Geschäftstätigkeit

wiederholt ins Schussfeld der Medien geraten war)."

The Court concluded that "what had happened to the plaintiff

according to the factual determination of the previous instance had,

objectively speaking, to be considered as a serious breach".

b) Federal Court's decision of 17 May 1994

In separate proceedings the applicant brought an action against

the Tages-Anzeiger newspaper, claiming a breach of his personality

rights in view of certain statements in that newspaper. Thus, various

articles had made references to the applicant in connection with drug

monies and the Shakarchi Trading company which was then being discussed

in the media.

The applicant's action was partly upheld by the Zürich District

Court on 20 August 1991 and, upon appeal, by the Court of Appeal

(Obergericht) of the Canton of Zürich.

The applicant's further appeal was partly dismissed by the

Federal Court on 17 May 1994. The Court did not conduct an oral

hearing. The bench consisted of the President S., and the judges B.,

W., W. and R.

In its judgment, running to 33 pages, the Federal Court partly

upheld the applicant's appeal. It considered that certain statements

of the newspaper had breached the applicant's personality rights, and

it ordered the newspaper to publish a particular text prepared by the

Court. The Court also confirmed the judgment of the District Court

according to which the newspaper had to pay 10,000 Swiss Francs to a

caritative organisation.

c) Federal Court's judgment of 11 November 1994

The applicant noted that three judges who had decided in the

Federal Court's judgment of 17 May 1994, namely the President S., B.

and W., had previously participated in the Federal Court's judgment of

12 January 1994. In view of the formulation employed in that judgment

about the applicant, he filed a request for reopening the proceedings

(Revision), claiming that the judges S., B. and W. had not been

impartial.

The applicant's request was dismissed by the Federal Court on

11 November 1994. In its judgment the Court stated:

"It cannot be relevant what the applicant has interpreted into

the consideration 2(a). The contested consideration contains no

indication that the applicant knew of the sale of aeroplanes at

issue, of which P.J. was accused, or that the applicant had

anything to do with it, or had business relations with P.J. Nor

does it transpire therefrom that everyone who has been mentioned

together with the applicant was breached in his personality.

Finally, the consideration does not state anything about a

connection with the accusation of the Tages-Anzeiger newspaper

concerning the Shakarchi Trading AG or about the applicant's

culpability concerning the accusations of the media directed

against him. The contested consideration has a link with the

applicant only to the extent that the Federal Court, when

concluding that there had been a serious breach of personality,

relied in addition on the facts that the two newspaper articles

had mentioned P.J. in connection with the applicant who himself

had at the critical time repeatedly been attacked by the media

in view of his business activities. Thus, the Federal Court only

drew a legal conclusion from facts which, on the one hand, had

definitely been decided by the previous instance ... and, on the

other, were widely known. It cannot be said that this

constitutes a statement of bias against the person of the

applicant. The complaint about partiality is therefore

unfounded."

COMPLAINTS

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

of the three Federal Court judges who had participated in the judgments

of the Federal Court of both 17 May and 12 January 1994. In

particular, the formulation employed in consideration 2(a) of the

judgment of 12 January disclosed their lack of impartiality.

The applicant points out that the judgment of 12 January 1994 not

only stated that the applicant "had been attacked by the media", but

also that this had occurred "in view of his business activities".

However, there had never been a sale of aeroplanes of which the

applicant had known, let alone in which he had been involved. As a

result, the judges considered that the applicant had on account of his

own culpability and instigation (aus eigenem Verschulden und Antrieb)

been attacked by the media.

The applicant complains particularly that the Federal Court's

judgment assumed a breach of personality rights of P.J. who had been

mentioned together with the applicant in the same newspaper. Thus, the

judges had demonstrated that they were negatively disposed

(eingestellt) towards the applicant and had declared him a "persona non

grata".

The applicant submits that, despite his complaints, the Federal

Court's judgment of 12 January 1994 was published in the official

series of the Federal Court. While the term "personality"

(Persönlichkeit) was used instead of the applicant's name, it was

nevertheless possible to identify who this personality was in view of

the widespread coverage which the particular sale of the aeroplanes had

received in the Swiss press.

THE LAW

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

Convention of the three Federal Court judges who had participated in

the judgments of the Federal Court of both 12 January and 17 May 1994.

In particular, the formulation employed in consideration 2(a) of the

first judgment disclosed their lack of impartiality.

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 ... by an

independent and impartial tribunal ..."

According to the case law of the Convention organs, the existence

of impartiality required by Article 6 para. 1 (Art. 6-1) must be

determined according to a subjective test, that is on the basis of the

personal conviction of a particular judge in a given case, and

according to an objective test, that is ascertaining whether the judge

offered guarantees sufficient to exclude any legitimate doubt in this

respect (see Eur. Court HR, Fey v. Austria judgment of 24 February

1993, Series A no. 255, para. 28: De Cubber v. Belgium judgment of 26

October 1984, Series A no. 86, pp. 13-14, para. 24).

As to the subjective test, the personal impartiality of a judge

must be presumed until there is a proof to the contrary. The applicant

has not claimed that the judges concerned acted with personal bias.

Under the objective test, it must be determined whether, apart

from the judge's personal conduct, there are ascertainable facts which

may raise doubts as to his impartiality. In this respect, even

appearances may be of a certain importance. What is at stake is the

confidence which the courts in a democratic society must inspire in the

public and above all in the parties to the proceedings. Accordingly,

any judge in respect of whom there is a legitimate reason to fear lack

of impartiality must withdraw (see the De Cubber judgment, loc. cit.,

p. 214, para. 26).

This implies that in deciding whether in a given case there is

a legitimate reason to fear that a particular judge lacks impartiality,

the view of the complaining party is important but not decisive. What

is decisive is whether this fear can be said to be objectively

justified.

In the present case, the fear of lack of impartiality was based

on the fact that the Federal Court judges who in the judgment of 17 May

1994 partly dismissed the applicant's appeal, had in the previous

judgment of 12 January 1994 made a reference to the applicant.

The Commission observes at the outset that the applicant was not

a party in the proceedings before the Federal Court leading to its

judgment of 12 January 1994. Indeed, as the Federal Court later

pointed out in its judgment of 11 November 1994, the contested

formulations in consideration 2(a) did not even concern a matter which

was the object of the subsequent proceedings before the Federal Court,

leading to its judgment of 17 May 1994.

The Commission furthermore notes that in its judgment of

12 January 1994 the Federal Court did not base its conclusion that the

personality rights of P.J. had been breached exclusively on the

formulations relating to the applicant. Rather, the contested sentence

is mentioned as an addition to other considerations.

Moreover, the Federal Court emphasised in its judgments of both

12 January 1994 and of 11 November 1994 that the contested formulations

represented facts which had been established by the previous instance

and in respect of which it, the Federal Court, was bound.

The Commission is satisfied that the formulations concerning the

applicant indeed referred to assertions which had been related in the

media and which were therefore widely known.

Finally, the Commission notes that on 17 May 1994 the Federal

Court carefully assessed the applicant's appeal in a judgment running

to 33 pages. Indeed, the Court partly upheld the applicant's appeal,

considering that certain statements of the newspaper had breached his

personality rights, and ordering the newspaper to publish a particular

text prepared by the Court.

The Commission is, therefore, of the opinion that in the

circumstances of the case the formulations employed in the Federal

Court's judgment of 12 January 1994 were not capable of giving rise to

doubt as to the impartiality of the Federal Court judges concerned, and

that the applicant's fear cannot be considered to be objectively

justified.

As a result, the application is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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H.W.K. v. SWITZERLAND

H.W.K. v. SWITZERLAND

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