Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22335/93

by Josef MÜLLER

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

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 9 July 1993 by

Josef MÃœLLER against Switzerland and registered on 26 July 1993 under

file No. 22335/93;

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 citizen born in 1924. He is a

businessman and resides in Zurich.

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

summarised as follows.

The particular circumstances of the case

On 14 September 1990 the applicant introduced with the Federal

Court (Bundesgericht) a public law appeal (staatsrechtliche Beschwerde)

against five decisions of the Canton of Zurich Court of Appeal

(Obergericht). At the same time he challenged for bias several Federal

Court judges. On 8 October 1990 he was invited to pay advance court

fees of 13,100 SFr. The applicant repeatedly requested the reduction

of the fees imposed on him and also the exclusion of the President of

the Civil Law Chamber II (Zivilabteilung). Since his requests were not

granted he decided not to pay the fees within the determined time-

limit.

On 14 January 1991, i.e. after the expiry of the extended time-

limit for payment of the advance court fees, the Federal Court

delivered five judgments in which it dismissed the applicant's request

for the exclusion of the Federal Court judges. It further declared

inadmissible the applicant's public law appeal because of his failure

to pay the advance fees for the proceedings. The applicant was charged

8,726 SFr in court fees. Following a garnishee notice the applicant

was obliged to pay, on 25 May 1992, the fees plus interest, totalling

9,469.30 SFr. He reserved himself the right to reclaim this sum.

On 13 October 1992 the applicant introduced with the Federal

Court an action for recovery (Rückforderungsklage) of the aforesaid

court fees pursuant to Section 86 of the Federal Debt Recovery and

Bankruptcy Act (Bundesgesetz über Schuldbetreibung und Konkurs). He

asked for the exclusion of all Federal Court judges and in particular

of those who had previously participated in proceedings brought by him.

He alleged that none of the judges could be impartial since the matter

concerned an earlier decision of the Federal Court. The applicant

requested that his case should be examined by an extraordinary chamber

pursuant to Section 26 para. 3 of the Federal Judiciary Act

(Bundesgesetz über die Organisation der Bundesrechtspflege).

On 29 October 1992 the applicant was invited, by a decision of

the President of the Civil Law Chamber II, to pay advance court fees

of 2,000 SFr. He was informed that if he failed to pay the fees his

action would be declared inadmissible. On 20 November 1992 the

applicant protested against his matter being dealt with by the same

chamber which had delivered the judgments of 14 January 1991. He was

informed that a judge who is challenged for bias is entitled to take

urgent official decisions including orders to pay advance court fees.

A new, non-extendible time-limit expiring on 9 December 1992 was set

for the applicant.

On 8 December 1992 the applicant requested the revocation

(Abnahme) of the time-limit and the examination of his case by an

independent chamber. He did not receive any reply.

On 28 December 1992 the Civil Law Chamber II (comprising one

judge who had participated in the delivery of the judgments of

14 January 1991) delivered a judgment declaring inadmissible both the

applicant's request for the exclusion of the Federal Court judges

andhis action for the recovery of the court fees. The applicant was

charged court fees of 1,000 SFr and the judgment was served on him on

14 January 1993.

The Federal Court held that the fact that one member of its

chambers had previously decided against the applicant was not

sufficient proof of bias of every individual judge. It further

considered that no personal interest of the participating judges as to

the outcome of the proceedings was established. Moreover, it noted

that by his action for recovery of the court fees the applicant had

introduced new proceedings with a different subject-matter.

The Federal Court further noted that the applicant did not

contest as such the obligation to advance the fees, nor did he complain

about the amount of the advance fees imposed on him. It considered the

request for revocation of the time-limit of 8 December 1992 abusive and

decided not to grant a further extension. Since the applicant had

failed to pay the advance fees for the proceedings, the Federal Court

decided, pursuant to Section 150 para. 4 of the Federal Judiciary Act,

to declare his action inadmissible.

The applicant considered that as he had not paid the advance

court fees the Federal Court was not entitled to deliver a judgment in

his case. On 15 February 1993 he introduced a request for reopening

of the proceedings (Revisionsbegehren). He also requested the

exclusion of certain judges.

The applicant failed to pay, within the extended time-limit, the

advance court fees of 2,000 SFr imposed on him in connection with these

reopening proceedings. On 5 April 1993 the Civil Law Chamber II, for

the same reasons as mentioned in its judgment of 28 December 1992,

declared inadmissible both the applicant's request for reopening of the

proceedings and his request for exclusion of judges. The applicant was

charged court fees of 1,000 SFr.

The relevant domestic law

According to Section 26 para. 1 of the Federal Judiciary Act, if

the reason adduced for the exclusion of a judge is contested

(streitig), the question of exclusion is to be decided by the chamber

without the participation of the judge challenged. Para. 3 of the same

Section provides for the appointment, if no valid deliberation is

possible because of the number of challenged judges, of the necessary

number of extraordinary judges from among Presidents of the cantonal

Courts of Appeal. The extraordinary judges are appointed by drawing

lots. They decide on the request for exclusion and, if necessary, also

on the merits.

Pursuant to Section 150 para. 1 of the Federal Judiciary Act, a

person who calls upon the Federal Court in civil cases must, upon order

of the President, provide a security for the probable court fees.

According to para. 4 of the same Section, if the security is not

provided within the time-limit, the claim shall be declared

inadmissible.

Pursuant to Section 153 para. 2 of the Federal Judiciary Act, the

Federal Court can dispense with the court fees entirely or partially

if a case is settled by waiver (Abstandserklärung) or if it is

terminated by a friendly settlement (Vergleich).

Pursuant to Section 153a para. 1 of the Federal Judiciary Act the

fees for the proceedings are to be determined according to the value,

the volume and the complexity of the subject-matter, the way the

proceedings have been conducted and the financial situation of the

participants.

The scale of fees supplementing Section 153a of the Federal

Judiciary Act provides for fees, in cases where the Federal Court

decides as the first and only court, between 1,000 and 5,000 SFr when

the value of the subject-matter is between 0 and 20,000 SFr.

According to Section 86 of the Federal Debt Recovery and

Bankruptcy Act, anyone who has paid a sum which was not due has the

right to introduce an action for its recovery. It is the obligation

of the claimant to prove that the sum at issue was not due.

COMPLAINTS

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

that his right to a fair and public hearing by an impartial tribunal

was violated in the proceedings leading to the Federal Court judgments

of 28 December 1992 and 5 April 1993 in that:

a) the matter was decided by biased judges in spite of the

applicant's request for their exclusion;

b) the advance court fees were imposed on him by biased judges and

were disproportionately high;

c) the judgments were delivered despite the fact that he had waived

his claims by failure to pay the advance court fees;

d) there was no public hearing in his case.

The applicant further alleges a violation of Article 13 of the

Convention in that (i) he was charged advance court fees; and (ii) the

Federal Court declared inadmissible his request for reopening of the

proceedings.

Finally, the applicant alleges a violation of Article 14 of the

Convention in that the Federal Court delivered judgments in his case

despite the fact that he had not paid the advance court fees. He

considers that the judgments represented a punishment. He alleges that

instead of delivering the judgments the Federal Court could have issued

orders striking off the case (Abschreibungsverfügungen) and charged him

considerably lower fees.

THE LAW

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

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

follows:

"In the determination of his civil rights and obligations ...,

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

independent and impartial tribunal established by law."

The Commission notes that the proceedings introduced with the

Federal Court on 15 February 1993 concerned the reopening of the

proceedings terminated in the Federal Court judgment of

28 December 1992. According to the Commission's case-law, there is no

right under the Convention to have proceedings reopened, nor do such

proceedings concern "the determination of (the applicant's) civil

rights andobligations or of any criminal charge against him" within the

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

(cf. No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171).

The part of the application which concerns the proceedings

terminated in the Federal Court judgment of 5 April 1993 is therefore

incompatible ratione materiae with the Convention within the meaning

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

2. a) To the extent that the applicant complains of the imposition

of disproportionately high advance court fees on him and of

participation of biased judges in the proceedings leading to the

judgment of 28 December 1992, the Commission recalls that Article 6

para. 1 (Art. 6-1) of the Convention embodies the right to a court, of

which the right of access, that is the right to institute proceedings

before courts in civil matters, constitutes one aspect (see Eur. Court

H.R., Philis judgment of 27 August 1991, Series A no. 209, p. 20,

para. 59).

However, Article 6 para. 1 (Art. 6-1) of the Convention does not

debar Contracting States from making regulations, in the interests of

the good administration of justice, concerning access to courts

(No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107).

Furthermore, when the State regulates access to court, it must

not restrict the access to such an extent that the very essence of the

right is impaired and the limitation will not be compatible with

Article 6 para. 1 (Art. 6-1) of the Convention if it does not pursue

a legitimate aim and if there is not a reasonable relationship of

proportionality between the means employed and the aim sought to be

achieved (see, e.g., Eur. Court H.R., Fayed judgment,

21 September 1994, Series A no. 294-B, para. 65).

In the present case the applicant did not claim that he was

indigent, nor did he request legal aid or the waiver of court fees.

The advance fees imposed on him (2,000 SFr) conformed to the scale in

force which provided for fees between 1,000 and 5,000 SFr when the

value of the subject-matter (9,469.30 SFr in the applicant's case) is

between 0 and 20,000 SFr. Moreover, the applicant did not complain

before the Federal Court of the amount of the fees imposed on him in

advance.

As to the complaint of alleged bias on the part of the

participating judges who limited the applicant's access to court (by

imposing a requirement that he pay advance court fees and by declaring

his appeal inadmissible when he failed to do so), the Commission

considers that clear evidence of bias on the part of the authority

which limits access to court could well be a relevant consideration in

determining whether a limitation is proportionate to the aim pursued.

In the applicant's case, however, the reasons adduced for alleged

bias of the judges (the point at issue being fees for previous Federal

Court proceedings and participation of one of the judges in those

proceedings) were considered irrelevant by the Federal Court as by his

action for recovery the applicant introduced new proceedings with a

different subject-matter. The Commission does not find this position

arbitrary.

In these circumstances, the Commission finds that the applicant

has not substantiated his allegation of bias and that the regulation

of his access to court (by imposition of advance court fees) was not

contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

b) To the extent that the applicant complains of the absence of a

public hearing in his case, the Commission recalls that the Federal

Court did not determine the merits of his action for recovery because

of his failure to pay the advance court fees.

In this respect the Commission finds that the full substantive

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

including the right to a public hearing - do not apply to proceedings

by which, like in the present case, a person is denied access to court

in a way compatible with the provisions of Article 6 para. 1

(Art. 6-1) of the Convention.

c) The applicant also complains that the Federal Court dealt with

his case after his failure to pay the court fees in advance. He

alleges that the case should have been struck off the list of cases and

that no judgment should have been delivered. However, the Commission

finds that this complaint does not raise an issue under Article 6

para. 1 (Art. 6-1) of the Convention.

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

founded within the meaning or 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 in that he was charged advance court fees.

However, the requirements of Article 13 (Art. 13) are less strict than,

and are here absorbed by, those of Article 6 (see Eur. Court H.R.,

Kamasinski judgment of 19 December 1989, Series A no. 168, p. 45, para.

110, with further references).

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 applicant also alleges a violation of Article 13

(Art. 13) of the Convention in that the Federal Court declared

inadmissible his request for reopening of the proceedings. However,

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 claim as being incompatible ratione materiae with the

Convention. Accordingly, it 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.

5. Finally, the applicant alleges a violation of Article 14

(Art. 14) of the Convention in that the Federal Court delivered

judgments in his case despite the fact that he had not paid the advance

court fees.

However, the applicant has not shown that the Federal Court

treated his case differently from other comparable cases. 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.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

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

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MÜLLER v. SWITZERLAND

MÜLLER v. SWITZERLAND

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