Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23269/94

by Edgar and Anita VON ARX-DERUNGS

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. H. DANELIUS, President

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

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 29 December 1993

by Edgar and Anita Von Arx-Derungs against Switzerland and registered

on 19 January 1994 under file No. 23269/94;

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 facts, as submitted by the applicants, may be summarised as

follows.

The applicants, born in 1944 and 1942, respectively, are Swiss

citizens residing in Walde in Switzerland. They are the directors of

an old persons' home. Before the Commission they are represented by

Mr R. Schaller, a lawyer practising in Geneva.

Particular circumstances of the case

The old persons' home run by the applicants since 1986 is located

outside the village of Biberstein in Switzerland. Approximately 30-40

persons live there. There are also various animals, including a number

of dogs, taken care of by the residents.

On 19 June 1989 the Biberstein municipal council (Gemeinderat)

reprimanded the applicants on the basis of Section 16 of the General

Police Regulations of the Biberstein municipality (Allgemeines

Polizeireglement; see below, Relevant domestic law) for having let the

dogs run around freely and disturbing neighbours.

On 19 August 1991 the municipal council, again relying on Section

16, fined the applicants 200 SFr on account of noise nuisance caused

by their dogs (Ruhestörung durch Hunde) in April and August 1991. The

order stated inter alia that "on the basis of the first reprimand in

the year 1989 and the presently renewed complaints, it has

unequivocally been established that the police regulations have been

breached" ("Durch die erste Verwarnung im Jahre 1989 und die heute

erneut vorliegenden Klagen ist der Tatbestand der Verletzung von

Polizeivorschriften eindeutig erfüllt"). A penal order issued on

22 August 1991 on the applicants stated that any fines which were

culpably not paid could be converted into imprisonment.

Following the applicants' objection, the municipal council issued

a decision confirming the fine.

The applicants' appeal against this decision was dismissed by the

Aarau District Court (Bezirksgericht) on 11 March 1992. The Court

relied on incriminating statements of neighbours who had reported the

applicants to the authorities. The applicants who were only aware of

the contents of the statements, not of the authors, unsuccessfully

requested the District Court to have the witnesses heard. In these and

the subsequent proceedings the applicants were represented by a lawyer.

The applicants' public law appeal (staatsrechtliche Beschwerde)

was partly upheld by the Federal Court (Bundesgericht) on

14 August 1992 as in view of the case-law of the European Convention

organs the applicants were entitled to put questions to incriminating

witnesses.

Proceedings were resumed before the Aarau District Court which

heard two persons who had reported the applicants to the authorities.

The witnesses referred in their statements to noise nuisance caused in

1991. On 9 December 1992 the District Court confirmed the fine of

200 SFr. In its judgment the Court concluded that there could be no

doubt that the applicants had not complied with Section 16 of the

Biberstein General Police Regulations. The Court thereby referred to

the many credible complaints of the neighbours; to the fact that the

applicants had previously already been reprimanded; and to its

appreciation of the statements made by the witnesses.

The applicants' public law appeal, in which they complained of

a breach of their constitutional and Convention rights, was dismissed

by the Federal Court on 15 June 1993, the decision being served on

1 July 1993.

Insofar as the applicants complained under Article 2 of Protocol

No. 7 that they had not had their case reviewed by a higher tribunal,

the Court found that the offence of which the applicants had been

convicted, amounting to a misdemeanour (Ãœbertretung), constituted a

minor offence prescribed by law within the meaning of Article 2 para. 2

of Protocol No. 7.

The Federal Court further found that neither the interpretation

of Section 16 of the Biberstein General Police Regulations nor the

assessment of the facts and the taking of evidence had been arbitrary.

Insofar as the applicants complained under Article 8 of the Convention

of a breach of their right to respect for family life, the Court found

that the interference was justified under Article 8 para. 2 of the

Convention as being in the interest of the neighbours concerned.

The Court then dealt with the applicants' complaint under

Article 4 of Protocol No. 7 that the Biberstein municipal council had

on 19 June 1989 and on 19 August 1991 convicted the applicants twice

for the same offence. The Court found that the Aarau District Court

in its judgment of 9 December 1992 had merely considered the earlier

reprimand as an aggravating factor when considering the determination

of the fine, and that it did not transpire from the judgment that the

applicants had been convicted a second time for the previous

occurrences.

Relevant domestic law

Section 16 of the Biberstein General Police Regulations

(Allgemeines Polizeireglement) lays down principles for keeping

animals. According to para. 1, "animals must be kept in such a manner

that nobody is disturbed and that neither human beings nor animals or

things are endangered or damaged" ("Tiere sind so zu halten, dass

niemand belästigt wird und weder Menschen noch Tiere oder Sachen

gefährdet werden oder zu Schaden kommen"). According to para. 3, dogs

shall not run around without supervision. Section 20 of the General

Police Regulations stipulates as a sanction a reprimand or a fine of

up to 200 SFr.

COMPLAINTS

Under Article 6 para. 1 of the Convention the applicants complain

that the legal provision on the basis of which they were convicted was

too vague. Moreover, the courts arbitrarily assessed the facts;

reference is made to the noise from a neighbouring road which is much

more disturbing. The applicants also maintain in this respect a breach

of the presumption of innocence according to Article 6 para. 2 of the

Convention.

Under Article 8 of the Convention the applicants complain of a

breach of their right to respect for private and family life, as the

animals assist them in accomplishing a mission in the old persons'

home.

The applicants complain under Article 2 of Protocol No. 7 that

they did not have a tribunal to review their case.

The applicants also complain under Article 4 of Protocol No. 7

that they were twice punished for the same offence in that the

Biberstein municipal council on 19 August 1991 invoked the reprimand

dated 19 June 1989. Reference is also made to the judgment of the

Aarau District Court of 9 December 1992.

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that the domestic courts arbitrarily assessed the facts.

This provision states, insofar as relevant:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by a ...

tribunal."

Insofar as the applicants complain that the decision of the Aarau

District Court was incorrect, 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).

The Commission has examined the applicants' complaint about the

assessment of evidence under Article 6 para. 1 (Art. 6-1) of the

Convention.

According to the Convention organs' case-law, it is for the

national courts to assess the evidence before them. The Commission's

task is to ascertain whether the proceedings considered as a whole,

including the way in which evidence was taken, were fair (see Eur.

Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,

para. 26).

In the present case the Aarau District Court convicted the

applicants after hearing two witnesses. The applicants have not

alleged that they were denied the right to put questions to these

witnesses. There is no indication that in these proceedings the

applicants, who were represented by a lawyer, could not put forward

their point of view or any evidence which they considered pertinent,

or that the proceedings were otherwise unfair.

Insofar as the applicants complain of a breach of the presumption

of innocence under Article 6 para. 2 (Art. 6-2) of the Convention, the

Commission finds no issue under this provision.

This part of the application is therefore manifestly ill-founded

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

2. The applicants complain that the legal provision on the basis of

which they were convicted was too vague. The Commission has examined

this complaint under Article 7 para. 1 (Art. 7-1) of the Convention

which states, insofar as relevant:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national ... law at the time when it was

committed."

The Commission recalls that Article 7 para. 1 (Art. 7-1) of the

Convention embodies the principle that only the law can define a crime

and prescribe a penalty, and the principle that the criminal law must

not be extensively construed to an accused's detriment, for instance

by analogy. It follows from this that an offence must be clearly

defined in law. This condition is satisfied where the individual can

know from the wording of the relevant provision what acts and omissions

will make him liable (see Eur. Court H.R., Kokkinakis judgment of 25

May 1993, Series A no. 260 A, p. 22, para. 52).

In the present case Sections 16 and 20 of the Biberstein General

Police Regulations envisage a punishment of up to 200 SFr inter alia

if animals disturb persons.

The wording of this provision thus makes it sufficiently clear

which acts and omissions are liable, and which punishment is envisaged.

As the Federal Court confirmed in its decision of 15 June 1993, it does

not appear that these provisions were arbitrarily interpreted or

applied when the applicants were fined 200 SFr because their dogs had

caused noise nuisance.

This part of the application is therefore also manifestly ill-

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

Convention.

3. Under Article 8 (Art. 8) of the Convention the applicants

complain of a breach of their right to respect for private and family

life, as the animals assist them in accomplishing a mission in the old

persons' home. Article 8 (Art. 8) of the Convention states, insofar

as relevant:

"1. Everyone has the right to respect for his private ... life

...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission recalls its case-law according to which it has

held that the keeping of a domestic pet does not fall within the sphere

of the owner's private life for the purposes of Article 8 (Art. 8) of

the Convention (see No. 6825/74, Dec. 18.5.76, X. v. Iceland, D.R. 5,

p. 86; No. 25517/94, Dec. 3.4.95, unpublished). The Commission does

not find it necessary to determine whether the present case may be

distinguished on the basis of the applicants' submissions. Even

assuming that there was an interference under Article 8 (Art. 8) of the

Convention, it would be justified under Article 8 para. 2

(Art. 8-2) of the Convention.

Thus, the measure complained was based on Sections 16 and 20 of

the Biberstein General Police Regulations and, therefore, "in

accordance with the law" as requested by Article 8 para. 2 (Art. 8-2)

of the Convention. It was also clearly taken "for the protection of

the rights and freedoms of others" within the meaning of this

provision.

Moreover, in view of the applicants' previous reprimand and the

comparatively small amount of the fine imposed, the Commission

considers that the measure, aimed at protecting the applicants'

neighbours from noise nuisance, could reasonably be considered as being

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of 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.

4. The applicants complain under Article 2 of Protocol No. 7 (P7-2)

that they did not have a tribunal to review their case. This provision

states, insofar as relevant:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law ...."

The Commission need not examine whether the applicants' public

law appeal to the Federal Court, in which they complained of a breach

of their constitutional and Convention rights, brought about a review

by a higher tribunal within the meaning of Article 2 para. 1 of

Protocol No. 7 (P7-2-1) (see No. 19028/91, Dec. 9.9.92, D.R. 73 p.

239).

In the Commission's opinion, the offence of which the applicants

were convicted - noise nuisance caused by their dogs - constitutes a

"minor" offence as confirmed by the fine of 200 SFr. According to the

Federal Court's judgment of 15 June 1993, domestic law qualified the

offence as a misdemeanour and thus also regarded it as a minor one.

The Commission therefore considers that the exception to the

right to a review by a higher tribunal, pursuant to Article 2 para. 2

of Protocol No. 7 (P7-2-2), applies.

It follows that this part of the application is also manifestly

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

Convention.

5. Finally, the applicants complain under Article 4 of Protocol

No. 7 (P7-4) that they were twice punished for the same offence in that

the Biberstein municipal council on 19 August 1991 invoked the

reprimand dated 19 June 1989. Reference is also made to the judgment

of the Aarau District Court of 9 December 1992. Article 4 para. 1

(P7-4-1) states:

"1. No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for

an offence for which he has already been finally acquitted or

convicted in accordance with the law and penal procedure of that

State."

The Commission notes that the Aarau District Court convicted the

applicants on 9 December 1992 of offences committed in 1991. These

offences undoubtedly occurred after the reprimand issued on

19 June 1989.

It is true that the Aarau District Court in its judgment of

9 December 1992 referred to the reprimand in 1989. However, it did so

in order to confirm its conclusion in respect of the subsequent offence

at issue. In its judgment of 15 June 1993, the Federal Court, which

merely saw an aggravating factor in this reference when determining the

fine, confirmed that it did not transpire that the applicants had been

convicted for occurrences for which they had already been reprimanded.

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.

Secretary to the Second Chamber President of the Second Chamber

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

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VON ARX-DERUNGS v. SWITZERLAND

VON ARX-DERUNGS v. SWITZERLAND

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