Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29737/96

by B. Y. U.

against Switzerland

The European Commission of Human Rights sitting in private on

7 April 1997, the following members being present:

Mrs. G.H. THUNE, Acting President

Mr. S. TRECHSEL

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 December 1995

by B. Y. U. against Switzerland and registered on 8 January 1996 under

file No. 29737/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

19 July 1996 and the observations in reply submitted by the

applicant on 14 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen born in 1974, is a service

specialist (Servicefachfrau) residing in Zürich. Before the Commission

she is represented by David Husmann, a lawyer practising at Affoltern

a.A. in Switzerland.

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

summarised as follows.

A. Particular circumstances of the case

The applicant got to know her future husband, U.U., born in 1963,

in Tarsus in Turkey in 1991. On 7 December 1991 the applicant moved

with her mother and her brother to Switzerland where her father was

residing. On 30 June 1992 U.U. joined her in Switzerland. On

7 November 1992 the applicant married U.U.

The couple first lived in the apartment of the applicant's

parents. Subsequently, they rented their own apartment, though the

spouses never lived there together. At the outset, the applicant lived

alone in the apartment while the husband was in Turkey. Upon his

return to Switzerland, the applicant went back to her parents,

whereupon at some stage U.U. lived in the apartment.

On 4 November 1993 the applicant brought a divorce action against

U.U. before the Zürich District Court (Bezirksgericht), claiming

marital alienation (Zerrüttung) within the meaning of S. 142 of the

Swiss Civil Code (Zivilgesetzbuch; see below, Relevant domestic law).

In her action the applicant claimed that originally, while still

in Turkey, she had been together with U.U. in a group; she had found

him nice though she had had no further contact with him. After her

departure to Switzerland, he had phoned her with the intention of

reviving their relationship. Even though they had not been together,

he had expressed his wish to marry her. She had not known the reason

herefor, and her parents had at first been against the idea.

Subsequently, U.U. had been able to convince her father who suddenly

agreed to the marriage. When in 1992 U.U. came to Switzerland, the

pressure on her to marry him increased, as U.U. claimed that he would

be ridiculed if he returned to Turkey. Moreover, by now the father

insisted that she marry him, even though she had not wanted to do so.

The applicant further maintained that the period of time spent

together with U.U. had not been satisfactory. They had lacked common

interests, and had not had much to say to one another. They had not

had any sexual relations. When, after their marriage, they lived

together with her parents, there had frequently been tensions.

The applicant also claimed that U.U. had married her in order to

obtain a residence permit in Switzerland. He had threatened her with

various disadvantages, if she introduced a divorce action.

In its decision of 3 February 1994 the District Court dismissed

the action. The Court found that if the applicant's parents had indeed

forced the applicant to enter marriage, this would suffice as an

objective ground of alienation. However, the Court considered that the

applicant herself was mainly responsible for the fact that the couple

had never been able to live their marital life and, therefore, that the

marriage was alienated. In particular, the Court considered that the

applicant had originally wanted to marry U.U., and had tried to

convince her parents; she had never told her parents anything to the

contrary. In view of her statements, it furthermore did not appear

credible that she had not been able to resist her parents' pressure;

indeed, she had never even stated that she had tried to do so. The

applicant had not mentioned any faults (Verfehlungen) on the part of

her husband which could have brought about a change of opinion.

The applicant's appeal (Berufung) against this decision was

dismissed on 16 January 1995 by the Court of Appeal (Obergericht) of

the Canton of Zürich.

In its decision the Court found that any action for the annulment

of the marriage (Anfechtungsklage; see below, Relevant domestic law)

would be belated as the marriage had been concluded on 7 November 1992,

and such an action would have had to be introduced within six months.

The decision continued:

"3. a) A fictitious marriage, i.e. a marriage which, according

to the will of both partners has not been concluded with the aim

of founding a marital community, is only null and void if it has

been concluded in order to obtain nationality. For the rest,

such marriage is neither null and void, nor can it be contested.

If the plaintiff is to be understood as claiming that her

agreement to the marriage falls to be considered under S. 126 of

the Civil Code (CC), as she had been threatened with a close and

sufficient danger to her honour or that of her father, the

contestation would be out of time. The plaintiff admits that

since her marriage she can do as she wishes, as she is now of age

... The influence of any threat would thus have ceased with the

marriage. The celebration took place on 7 November 1992, and the

time-limit of six months for annulment according to S. 127 CC had

therefore expired when the action was filed in November 1993.

b) The divorce of a fictitious marriage is only possible on

the basis of SS. 137-139 CC and S. 141 CC. For, if a spouse did

not intend to found a marital community, the issue of marital

alienation within the meaning of S. 142 CC as well as of

desertion within the meaning of S. 140 CC cannot arise ... The

plaintiff cannot therefore rely on the fact that neither she nor

the defendant had ever had the intention of living together; or

that the apartment ... was only rented by the couple in order no

longer to be together with the parents ... In this context it

is also irrelevant that, as she knew, the defendant may have

married her only in order to be able to stay in Switzerland ...

Moreover, her statements in this respect are contradicted by her

assertion that the defendant had travelled to Turkey in June/July

1993 in order to look for work and had only returned as he had

not found any.

c) If the plaintiff allegedly married under her father's

pressure, this would not be a ground for divorce, because only

facts occurring after the conclusion of marriage may justify

divorce ... Facts occurring before or during the conclusion of

marriage may only be considered as a ground for divorce if they

subsequently have a negative influence on the marital life. This

is not the case in the present situation since the plaintiff,

according to her own submissions, never has had the intention to

lead a married life with the defendant. For the rest, the

plaintiff's statements in this respect are not at all credible.

It is difficult to understand why she could not have resisted the

pressure of her father, if she is now in a position to raise and

resolutely to pursue a divorce action."

The applicant filed an appeal (Berufung) with the Federal Court

(Bundesgericht). In her appeal statement she summarised the facts and

pointed out contradictions in the decision of the Court of Appeal. She

argued that the previous decision breached Federal law, in particular

S. 142 of the Civil Code, in that the Court of Appeal had considered

that there could never be marital alienation in the case of a

fictitious marriage since the partners had never had the intention to

live together. The appeal statement continued (p. 8):

"If the lack of intention to found a marriage was not considered

a ground of marital alienation, the disturbing result would

remain that such a marriage could hardly ever be divorced. That

would also breach the right to personality of the partner who is

willing to divorce, in particular as the latter would be in a

forced community which could not be dissolved. This cannot be

right."

The Federal Court dismissed the appeal on 16 June 1995. In its

decision, served on 23 June 1995, the Court concluded that "the general

ground of divorce under S. 142 of the Civil Code cannot be invoked for

the dissolution of a fictitious marriage".

B. Relevant domestic law

a. Position of the Convention in Switzerland

According to Swiss legal practice, the Convention is directly

applicable in Switzerland and can be invoked before every public

authority.

b. Swiss Civil Code

According to S. 126 of the Swiss Civil Code (Zivilgesetzbuch),

a marriage may be annulled, inter alia, if a spouse has agreed to

marriage as a result of a dangerous threat to his or her life, health

or honour. The action for annulment of the marriage must be filed

within six months after the ground has been discovered or the threat

has ceased to exist, and at the latest five years after conclusion of

the marriage (S. 127).

SS. 137-142 of the Civil Code list the grounds for divorce.

These are: persecution of life, abuse and slander (Nachstellung nach

dem Leben, Misshandlung und Ehrenkränkung) according to S. 138; crime

or dishonourable conduct (Verbrechen und unehrenhafter Lebenswandel)

according to S. 139; desertion (Verlassung) according to S. 140; and

mental illness (Geisteskrankheit) according to S. 141.

According to S. 142 para. 1 of the Civil Code, a marriage must

be divorced if the marital relationship is so alienated (zerrüttet)

that the spouses can no longer be expected to continue the marital

community (dass den Ehegatten die Fortsetzung der ehelichen

Gemeinschaft nicht mehr zugemutet werden kann). According to para. 2

of S. 142, the spouse mainly responsible herefor is not entitled to

introduce an action.

c. Remedies to the Federal Court

The Federal Judiciary Act (Organisationsgesetz) envisages in such

cases two remedies to the Federal Court.

SS. 84ff of the Federal Judiciary Act provides for a public law

appeal (staatsrechtliche Beschwerde) which serves to complain, in

respect of cantonal decisions, of a breach of constitutional law.

According to the Federal Court's case-law, this remedy also serves to

complain of a breach of the Convention.

SS. 43ff of the Federal Judiciary Act also provides in civil

cases for an appeal (Berufung) to complain of breaches of Federal law,

in particular the Civil Code. According to S. 43 para. 1, if a breach

of constitutional rights is claimed, these must be raised by means of

a public law appeal. However, according to the Federal Court's case-

law, it is possible to complain indirectly in an appeal of a breach of

the Convention by maintaining that the interpretation of the applicable

Federal law ran counter to the Convention.

COMPLAINTS

The applicant complains under Articles 8 and 12 of the Convention

of a breach of her right to respect for her private and family life in

that she is obliged to remain married, even though she does not want

to be so. Thus, divorce has been excluded for her on the grounds that

her marriage is alienated, or that her husband has deserted her.

The applicant complains that she is deprived of her right to

remarry. She is thus expected to remain married all her life with a

man whom she never wanted to marry in the true sense, and who himself

apparently is no longer interested in her, as his currently unknown

place of residence demonstrates. The applicant also submits that she

missed the time-limit for filing an action for the annulment of the

marriage, as she was not informed of such a possibility.

The applicant submits that she only married her husband upon her

father's orders so that the husband could obtain a residence permit in

Switzerland.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 December 1995 and registered

on 8 January 1996.

On 13 May 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 19 July

1996. The applicant replied on 14 October 1996.

THE LAW

The applicant complains under Articles 8 and 12 (Art. 8, 12) of

the Convention of a breach of her right to respect for her private and

family life in that she is obliged to remain married, even though she

does not want to be so. Thus, divorce has been excluded for her on the

grounds that her marriage is alienated, or that her husband has

deserted her.

The Government submit that the applicant has not complied with

the requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies. Thus, in addition to filing an

appeal, she should also have filed a public law appeal, which remedy

serves to complain of a breach of the Federal Constitution or of the

Convention. In any event, she failed to raise in her appeal before the

Federal Court the complaint which she is now raising before the

Commission. Thus, in her statement she merely dealt with the

interpretation of S. 142 of the Civil Code, rather than referring to

constitutional law or the Convention.

The applicant submits that in Switzerland it is unnecessary

simultaneously to file an appeal and a public law appeal. Moreover,

in her appeal she duly raised the complaint she is now making before

the Commission, in particular by referring to a breach of her

personality right and of the liberty to free herself from forced

community. As a result, the Federal Court should have examined the

constitutionality of the contested practice. In the applicant's view,

it would be formalistic to expect that reference should have been made

to a Convention provision.

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with "the matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law".

Before the Commission the applicant is complaining that she is

under an obligation to remain married which, in her view, breaches

Articles 8 and 12 (Art. 8, 12) of the Convention.

The Commission need not decide whether in the proceedings before

the Federal Court the applicant should also have raised her complaints

in a public law appeal.

Thus, in her appeal before the Federal Court, the applicant

merely referred to a breach of Federal law, in particular of S. 142 of

the Civil Code, in that the Court of Appeal had considered that there

could never be marital alienation in the case of a fictitious marriage

since the partners had never had the intention to live together.

However, the applicant never submitted that this practice ran counter

to Articles 8 and 12 (Art. 8, 12) of the Convention or even to the

Swiss Constitution.

As a result, the applicant failed sufficiently to raise before

the Federal Court the complaint she is now making before the

Commission.

It follows that she has not complied with the requirement under

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies, and her application must be declared inadmissible according

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER G.H. THUNE

Secretary Acting President

to the Commission of the Commission

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B.Y.U. v. SWITZERLAND

B.Y.U. v. SWITZERLAND

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