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MÜLLER v. SWITZERLAND

Doc ref: 34920/97 • ECHR ID: 001-3720

Document date: May 21, 1997

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Cited paragraphs: 0
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Outbound citations: 3

MÜLLER v. SWITZERLAND

Doc ref: 34920/97 • ECHR ID: 001-3720

Document date: May 21, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 34920/97

by Josef MÜLLER

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. S. TRECHSEL

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

M. VILA AMIGÓ

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 21 January 1997

by Josef Müller against Switzerland and registered on 14 February 1997

under file No. 34920/97;

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 1924, is a businessman

residing in Zürich.

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

summarised as follows.

On 16 December 1994 the applicant introduced a private criminal

action (Privatstrafklage) against 14 persons, inter alia, on account

of fraud, abuse of office and defamation (ehrverletzende

Beschuldigungen).

On 4 August 1995 the Winterthur District Court (Bezirksgericht)

refused to admit the action, inter alia, as the applicant had failed

to demonstrate any criminal act on the part of the persons concerned

or as the prescription period for the alleged offences had expired

(verjährt).

The applicant's appeal (Rekurs) was dismissed by the Court of

Appeal (Obergericht) of the Canton of Zürich on 5 December 1995. His

plea of nullity (Nichtigkeitsbeschwerde) was declared inadmissible by

the Court of Cassation (Kassationsgericht) of the Canton of Zürich on

21 May 1996.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) which the Federal Court (Bundesgericht) declared

inadmissible on 23 August 1996 as the applicant had failed to comply

with the statutory requirements for filing such an appeal.

COMPLAINTS

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

various proceedings and their outcome. He complains in particular that

his criminal action was not admitted. He further complains, inter

alia, of a lack of access to court; that he was neither properly nor

publicly heard; and that he did not have a "tribunal established by

law" within the meaning of Article 6 of the Convention.

2. Under Article 8 of the Convention the applicant complains that

his honour was not sufficiently protected by the domestic authorities.

THE LAW

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

Convention of the various proceedings and their outcome.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its established

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18, pp. 31, 45).

It is true that in this case the applicant also raises various

complaints under Article 6 para. 1 (Art. 6-1) Convention about the

conduct of the proceedings. This provision states, insofar as

relevant:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law.

The Commission recalls that in principle the Convention does not

guarantee a right to institute criminal proceedings against third

persons and that as a general rule the relevant proceedings do not fall

to be examined under Article 6 (Art. 6) of the Convention. However,

Article 6 (Art. 6) is applicable when a "civil right" is at issue, e.g.

when, as in the present case, a private prosecution is introduced in

order to allow the applicant to protect his reputation (see Eur. Court

HR, Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A,

p. 14, para. 29).

a) Insofar as the applicant complains that he was neither properly

nor publicly heard and that he did not have a "tribunal" within the

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

Commission notes that the Federal Court declared the applicant's public

law appeal inadmissible for non-compliance with the statutory

requirements for filing such an appeal. However, according to the

Commission's case-law, there is no exhaustion of domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention where a

domestic appeal is not admitted because of a procedural mistake (see

No. 6878/75, Dec. 6.10.76, Le Compte v. Belgium, D.R. 6, p. 79).

This part of the application must, therefore, be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

b) Insofar as the applicant may be understood as complaining of a

lack of access to court within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, in particular as his private criminal

action for defamation was not admitted, the Commission notes the

various reasons given herefor by the domestic authorities. It cannot,

therefore, be said that the domestic authorities restricted or reduced

the access left to the applicant in such a way or to such an extent

that the very essence of his right of access to court was impaired (see

Eur. Court HR, Philis v. Greece judgment of 27 August 1991, Series A

no. 209, p. 21, para. 60).

This part of the application is manifestly ill-founded within the

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

2. Insofar as the applicant also relies on Article 8 (Art. 8) of the

Convention, the Commission finds no issue under this provision. The

remainder of the application is, therefore, also manifestly ill-founded

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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