Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27043/95

by Beat JENNY

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 January 1996, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, 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 1 March 1994 by

Beat JENNY against Switzerland and registered on 18 April 1995 under

file No. 27043/95;

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 is a Swiss national born in 1948. He is a

physicist and resides in Künten.

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

summarised as follows.

The particular circumstances of the case

The applicant's employment at the Federal Institute of Technology

(Eidgenössische Technische Hochschule) in Zurich was terminated in

1990. The applicant appealed against this decision to the Swiss

Schools Council (Schulrat). On 5 November 1991 W., the applicant's

superior, contacted the Secretariat of the Schools Council by

telephone. A file note was drawn up of the conversation.

On 18 March 1992 the applicant lodged an action with the Zurich

District Court (Bezirksgericht). He accused W. of defamation according

to Section 174 of the Federal Criminal Code and claimed damages. He

expressly referred to the following part of the file note:

[Original]

"W. warnt dringend, dem Beschwerdeführer entgegenzukommen. Der

Schulrat habe nur Akten vor sich, doch er und seine Mitarbeiter

hätten persönliche Erfahrungen mit ihm, die ebenfalls

berücksichtigt werden sollten. ... er [der Beschwerdeführer]

würde nach einem solchen "Schuldeingeständnis" der ETH eine Reihe

von nicht enden wollenden Prozessen in die Wege leiten. Es werde

ihm dann nicht mehr um die Arbeitsstreitigkeit selber gehen,

sondern um einen Schadenersatz wegen angeblicher

Persönlichkeitsschädigung."

[Translation]

"W. strongly advises against accepting the applicant's claims.

The Schools Council has only the file before it, but W. and his

colleagues have personal experience with him that should also be

taken into account. ... in case of an "acknowledgment of

liability" he [the applicant] would involve the Federal Institute

of Technology in an endless series of proceedings. He would then

no longer be concerned about the labour dispute as such, but he

would seek damages for the alleged injury to his personality".

On 25 May 1992 the acting President of the Zurich District Court

declared the action inadmissible as it did not meet the objective

criteria of defamation under the Swiss law. In his view the only

factual allegation in the statement at issue was that the defendant and

his colleagues had personal experience with the applicant, and this

statement was not defamatory.

The President of the District Court further considered the

defendant's opinion that the applicant would involve the school in a

series of proceedings to be a hypothesis about which there was no

certainty. It could therefore not have been considered as a statement

made in full knowledge of the fact that it was untrue (wider besseres

Wissen) within the meaning of Section 174 of the Criminal Code. The

court found that the statement at issue was neither an insult (üble

Nachrede) nor did it attack the applicant's honour and reputation.

The applicant appealed against this decision. He claimed, inter

alia, that the District Court had not been impartial, that it had not

established the relevant facts, had applied the law erroneously, had

decided arbitrarily and had not sufficiently substantiated its

decision.

On 11 December 1992 the Criminal Chamber of the Canton of Zurich

Court of Appeal (Obergericht) dismissed the appeal. It held that the

first instance decision was lawful as there was no doubt about the lack

of elements of the alleged offence. Neither the first instance court

nor the other party was asked for observations.

On 12 January 1993 the applicant lodged a public law appeal and

a plea of nullity with the Federal Court (Bundesgericht). In the

public law appeal he complained, inter alia, that two Court of Appeal

judges and the legal secretary were biased and that the courts had

failed to take the evidence as required and had decided arbitrarily.

In the plea of nullity the applicant alleged that the Court of

Appeal should have established the contents of the telephone

conversation of 5 November 1991 and that the decision was unlawful

since his right to honour and a good name had not been protected.

On 2 April 1993 the Federal Court dismissed the public law

appeal. It found that it had only jurisdiction to examine the

complaint about partiality of the Court of Appeal judges and of the

legal secretary. This complaint was dismissed on the ground that those

persons could not be considered as biased because of their earlier

participation in different proceedings with a similar subject-matter.

On 23 June 1993 the applicant requested the exclusion of the

Federal Court judges who had earlier dealt with his cases.

On 26 August 1993 the Federal Court rejected the applicant's

request for exclusion of its judges and dismissed the plea of nullity.

It found that it had jurisdiction only to examine the complaint that

federal law had been violated and found, with reference to the reasons

given by the lower courts, that the decisions at issue could not be

challenged from that point of view. The judgment was served on

2 September 1993.

The applicant tried to have criminal proceedings brought against

officials who had dealt with his case. On 8 February 1994 the Federal

Attorney General decided not to commit the officials for trial and on

30 January 1995 the Federal Department of Justice and of the Police

upheld this decision.

The relevant domestic law and practice

Pursuant to Section 174 para. 1 of the Federal Criminal Code

anybody who knowingly brings false accusations against another person

before a third person or imputes to a person dishonest behaviour or any

other fact calculated to diminish the esteem others have for that

person, and anybody who spreads such accusations or suspicions while

he or she is aware of their nature shall be punished by a prison

sentence or by a fine.

By Section 28 para. 1 of the Civil Code anybody whose personality

has been unlawfully impaired can take legal proceedings to protect

himself or herself against the persons involved in such infringement.

Pursuant to Section 49 para. 1 of the Code of Obligations a

person whose personality rights have been unlawfully impaired is

entitled to damages provided that it is justified by the gravity of the

interference unless he or she obtained satisfaction by other means.

Pursuant to Section 313 of the Canton of Zurich Code of Criminal

Procedure the District Court's President is entitled to declare a

charge inadmissible if the facts invoked by the person who attempts to

bring the prosecution do not meet the objective criteria of an offence

(i.e. if the accused would have to be acquitted even if the alleged

facts were established). However, when doubts can arise whether or not

the invoked facts meet the elements of an offence, the case has to be

submitted to the court for examination.

COMPLAINTS

The applicant complains that his action against W. was not

allowed and that he did not have a fair and public hearing before an

impartial tribunal in this respect. In particular, he considers that

the courts failed to establish the relevant facts and decided

arbitrarily because they did not examine all his arguments and did not

hear the participants in the telephone conversation at issue. The

applicant also complains that the Swiss authorities refused to

prosecute the officials who had dealt with his case. He alleges a

violation of Article 6 para. 1 of the Convention.

The applicant also alleges a violation of Articles 1, 13 and 14

of the Convention.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention which reads, so far as relevant, as follows:

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

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 does not find it necessary to decide whether

Article 6 (Art. 6) applies to the proceedings in which the applicant's

action against W. was disallowed as this part of the application is in

any event inadmissible for the following reasons.

a) To the extent that the applicant complains of the fact that he

failed in his attempt to have his former superior punished for

defamation and that the courts did not establish all relevant facts and

decided arbitrarily the Commission recalls that it is not competent to

examine alleged errors of fact or law committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of the rights and freedoms guaranteed by the

Convention (cf. No. 12013/86, Dec. 10.3.89, D.R. 59 p. 100).

In the present case the acting President of the District Court

declared the applicant's request to bring private criminal prosecution

inadmissible pursuant to the relevant provisions of the Code of

Criminal Procedure. He held, for reasons laid down in the judgment,

that the facts submitted by the applicant did not meet the objective

criteria of an offence against honour or reputation as defined by Swiss

law. As the accused would in any event have to be acquitted, the court

did not establish the facts alleged by the applicant.

The Court of Appeal and the Federal Tribunal upheld this

position, and the Commission does not find these decisions arbitrary.

The applicant further complains that the Court of Appeal judges

and the Federal Court judges who dealt with his case, including the

clerical staff, lacked impartiality. He refers to their participation

in earlier proceedings with a similar subject-matter to which he was

an unsuccessful party.

The Commission recalls that the fact that a judge participated

earlier in different proceedings with a similar subject-matter is not

in itself reasonably capable of giving rise to legitimate doubts as to

his or her impartiality (cf. Eur. Court H.R., Gillow judgment of

24 November 1986, Series A no. 109, p. 28, para. 73). The Commission

finds no indication that the judges and officials who dealt with the

applicant's case lacked impartiality.

It follows that this part of the application is manifestly ill-

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

Convention.

b) To the extent that the applicant alleges that there was no public

hearing in his case the Commission notes that the applicant failed to

raise this issue before the Federal Court. Furthermore, it does not

appear from the documents submitted that he asked the Federal Court to

hold an oral hearing.

In this respect the applicant has failed to comply with the

requirement as to the exhaustion of domestic remedies laid down in

Article 26 (Art. 25) of the Convention.

It follows that this part of the application has to be rejected

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

2. To the extent that the applicant complains that no criminal

proceedings were brought against officials involved in his case, the

Commission recalls that Article 6 (Art. 6) of the Convention does not

guarantee a right to have criminal proceedings instituted against third

persons (cf. No. 16734/90, Dec. 2.9.91, D.R. 72 p. 236).

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

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

3. The applicant further alleges a violation of Article 13

(Art. 13) of the Convention which reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls that as regards the alleged interference

with the applicant's honour and reputation, the applicant was free to

seek redress by means of civil proceedings pursuant to Section 28 of

the Civil Code and Section 49 para. 1 of the Code of Obligations. He

did not avail himself of this possibility.

In any event, the guarantees of Article 13 (Art. 13) apply only

to a grievance which can be regarded as "arguable" (cf. Eur. Court

H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172,

p. 14, para. 31, with further references). In the present case the

Commission has rejected the substantive claims either as disclosing no

appearance of a violation of the Convention or for non-exhaustion of

domestic remedies or as being incompatible ratione materiae with the

Convention. For similar reasons, they cannot be regarded as

"arguable".

It follows that this part of the application is manifestly ill-

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

Convention.

4. Finally, the Commission has examined the applicant's complaints

under Articles 1 and 14 (Art. 1, 14) of the Convention but finds that

insofar as they have been substantiated and are within its competence,

they do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention.

It follows that this part of 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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JENNY v. SWITZERLAND

JENNY v. SWITZERLAND

LEXI