Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23855/94

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 31 March 1994 by

Josef MÃœLLER against Switzerland and registered on 12 April 1994 under

file No. 23855/94;

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 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

A. Proceedings leading to the Federal Court judgment of

14 September 1993

By three decisions of 11 May 1993 the Meilen District Court

(Bezirksgericht) granted final warrant (definitive Rechtsöffnung) for

enforcement of the applicant's debts. The debts amounted to 35,700 SFr

and concerned the outstanding fees for 26 proceedings before the

Federal Court (Bundesgericht). The applicant was informed that a plea

of nullity (Nichtigkeitsbeschwerde) concerning these decisions could

be filed within ten days with the Canton of Zurich Court of Appeal

(Obergericht).

On 23 July 1993 the applicant introduced a public law appeal

(staatsrechtliche Beschwerde) with the Federal Court. He complained

of a violation of Article 6 para. 1 and Article 13 of the Convention

in the proceedings before the Meilen District Court. He also asked for

interim measures and requested the exclusion for bias, on various

grounds, of all Federal Court judges. He claimed that his appeal

should be examined by an independent chamber pursuant to Section 26

para. 3 of the Federal Judiciary Act (Bundesgesetz über die

Organisation der Bundesrechtspflege).

On 27 July 1993 the applicant was invited to pay advance court

fees of 5,000 SFr by 31 August 1993. He was informed that his appeal

lacked prospects of success and that if he failed to pay the fees, his

appeal would be declared inadmissible (auf Ihre Rechtsvorkehr wird

nicht eingetreten).

On 31 August 1993 the applicant protested against his case being

dealt with by challenged judges and in particular by the President of

the Civil Law Chamber II (Zivilabteilung) who had decided on the

advance court fees. He requested revocation (Abnahme) of the time-

limit for payment of the advance court fees and their subsequent

determination by an independent chamber. He further alleged that the

sum imposed on him was prohibitively high and contrary to Sections 153

and 153a of the Federal Judiciary Act.

By judgment of 14 September 1993 the Federal Court, consisting

of the President of the Civil Law Chamber II and two other judges (all

three challenged on the ground of their participation in previous

proceedings to which the applicant had been a party), declared the

applicant's public law appeal inadmissible pursuant to Section 150

para. 4 of the Federal Judiciary Act.

The Federal Court noted that the applicant's request for the

exclusion of judges was inadmissible for reasons of which the applicant

had already been informed in the course of previous proceedings. The

applicant was charged court fees of 3,000 SFr and a disciplinary fine

(Ordnungsbusse) of 1,500 SFr was imposed on him pursuant to Section 31

para. 2 of the Federal Judiciary Act. The judgment was served on the

applicant on 1 October 1993.

B. Proceedings leading to the Federal Court judgment of

21 September 1993

On 26 July 1993 the Meilen District Court granted final warrant

for enforcement of the applicant's debts amounting to 6,000 SFr. The

debts concerned outstanding fees for six proceedings before the Federal

Court. The applicant was informed that a plea of nullity concerning

this decision could be filed within ten days with the Canton of Zurich

Court of Appeal.

On 20 August 1993 the applicant introduced a public law appeal

against this decision with the Federal Court. He requested that it

should be joined with his public law appeal of 23 July 1993 concerning

a similar matter (see A above). The applicant further requested, for

various reasons, the exclusion of all Federal Court judges.

On 24 August 1993 the applicant was invited to pay, by

15 September 1993, advance court fees of 2,000 SFr. His request for

joinder of the public law appeals was rejected as the proceedings

concerning the appeal of 23 July 1993 were about to be terminated. The

request for interim measures was rejected as the public law appeal

lacked prospects of success.

On 14 September 1993 the applicant asked for revocation of the

time-limit for payment of the advance court fees and reiterated his

challenges of the Federal Court judges. He further alleged that the

required sum was prohibitively high and unlawful.

On 21 September 1993 the Federal Court, consisting of the same

judges as in the above proceedings, declared inadmissible both the

applicant's public law appeal and his request for the exclusion of all

Federal Court judges. The applicant was charged the court fees of

1,000 SFr and a disciplinary fine of 1,500 SFr was imposed on him.

C. The proceedings leading to the Federal Court judgments of

23 November 1993

On 23 July and 20 August 1993 the applicant lodged a plea of

nullity with the Canton of Zurich Court of Appeal. He complained of

the Meilen District Court decisions of 11 May and 26 July 1993 (see A

and B above). In two decisions of 30 August 1993 the Court of Appeal

declared the pleas of nullity inadmissible.

On 21 October 1993 the applicant introduced a public law appeal

with the Federal Court in which he complained of the aforesaid Court

of Appeal decisions. He requested the exclusion of 16 Federal Court

judges who had participated in the 32 proceedings the outstanding fees

for which allegedly represented the subject-matter of his public law

appeal.

The Federal Court instituted two proceedings, in the applicant's

view in order to increase the court costs. On 25 October 1993 the

applicant was invited to pay advance court fees of respectively 5,000

and 4,500 SFr by 16 November 1993. He was informed that his public law

appeal lacked prospects of success.

On 16 November 1993 the applicant asked for the exclusion for

bias of the President of the Civil Law Chamber II on the ground that

he had delivered, in the past, unlawful judgments in the applicant's

cases, that he had rejected the applicant's request for interim

measures and divided the appeal into two proceedings. He alleged that

under the law in force the advance court fees should not exceed 2,000

SFr.

By two judgments of 23 November 1993 the Federal Court declared

the public law appeal inadmissible. The Court comprised the President

of the Civil Law Chamber II and one judge who had participated in

earlier proceedings in the course of which the fees at issue were

imposed (see A and B above). The Federal Court also declared

inadmissible the requests for the exclusion of judges and found the

applicant's submissions of 16 November 1993 abusive and of no effect.

The Federal Court charged the applicant respectively 3,000 and 1,000

SFr court fees and imposed a disciplinary fine of 1,500 SFr in each of

the proceedings.

D. Proceedings leading to the Federal Court judgment of 3 March 1994

On 7 September 1993 the Meilen District Court granted final

warrant for enforcement of the applicant's debts amounting to 24,500

SFr. The debts concerned the outstanding fees for 11 proceedings

before the Federal Court.

On 5 November 1993 the Canton of Zurich Court of Appeal declared

inadmissible the applicant's plea of nullity concerning the Meilen

District Court decision.

On 27 January 1994 the applicant introduced with the Federal

Court a public law appeal against the aforesaid Court of Appeal

decision. He challenged for bias all Federal Court judges since he

considered that as the subject-matter of the proceedings was

outstanding fees concerning its earlier judgments, the Federal Court

was a party to the proceedings. He requested that this question should

be decided by the plenary Court.

On 31 January 1994 the applicant was invited to pay advance court

fees of 4,500 SFr by 28 February 1994. He was informed that he could

only waive his public law appeal by means of a written explanation and

that a possible failure to pay the advance fees would not be regarded

as a waiver. His request for interim measures was rejected as the

appeal lacked prospects of success.

On 28 February 1994 the applicant requested revocation of the

time-limit for payment of the advance court fees and examination of his

case, including determination of the advance fees and of the time-limit

for their payment, by an independent chamber established pursuant to

Section 26 para. 3 of the Federal Judiciary Act. He further alleged

that the advance court fees were prohibitively high and unlawful since

his case was not a complex one.

By its judgment of 3 March 1994 the Federal Court declared the

public law appeal inadmissible pursuant to Section 150 para. 4 of the

Federal Judiciary Act. The Federal Court found the applicant's

requests for the exclusion of judges abusive and declared them also

inadmissible. The applicant was charged court fees of 2,000 SFr and

fined 1,500 SFr pursuant to Section 31 para. 2 of the Federal Judiciary

Act.

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 31 para. 2 of the Federal Judiciary Act, both

the party and its representative may be punished by means of a

disciplinary fine of up to 600 SFr and in case of repetition up to

1,500 SFr on account of malicious or wanton conduct of the proceedings

(böswillige oder mutwillige Prozessführung).

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. Para. 2 (b) of the same Section provides for fees of

between 200 and 5,000 SFr in the case of public or administrative law

appeals which do not involve pecuniary interests.

The scale of fees supplementing Section 153a of the Federal

Judiciary Act provides for the following fees in cases when the Federal

Court does not decide as the only court:

Value of the subject-matter (SFr) Court fees (SFr)

0 - 10,000 200 - 5,000

10,000 - 20,000 500 - 5,000

20,000 - 50,000 1,000 - 5,000

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 above proceedings leading to the Federal Court

judgments of 14 and 21 September 1993, 23 November 1993 and

3 March 1994 in that:

a) the cases were decided by biased judges in spite of the

applicant's requests for their exclusion;

b) the advance court fees were disproportionately high and they were

imposed unlawfully by the President of the Civil Law Chamber II who was

challenged for bias;

c) the judgments were delivered unlawfully and despite the fact that

he had waived his claims by failure to pay the advance court fees;

d) he was charged court fees amounting to 10,000 SFr and fined a

total of 7,500 SFr;

e) there was no public hearing in his cases;

f) the judges in Switzerland lack impartiality because of their

dependence on political parties.

The applicant further alleges a violation of Article 13 of the

Convention in that he was deprived, by the imposition of

disproportionately high and unlawful advance court fees, of an

effective remedy against the alleged violations of his rights

guaranteed by the Convention.

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

Convention in that the Federal Court imposed high court fees and fines

on him. He alleges that instead of delivering the judgments the

Federal Court could have issued, as in cases brought by other

applicants, orders striking off the cases (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 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 consider it necessary to examine the

applicability of Article 6 (Art. 6) of the Convention to each of the

proceedings at issue as the application is in any event inadmissible

for the following reasons.

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 judgments complained

of, 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 the 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 of

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.

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

Federal Court has a margin of appreciation in deciding on court fees

and the advance fees actually imposed in each of the proceedings did

not exceed the maximum amount (5,000 SFr) on the relevant scale of

fees.

Moreover, in the proceedings complained of the Federal Court was

not empowered to deal with the applicant's complaints with full

jurisdiction, but it was to examine his public law appeals as to the

breach of the applicant's constitutional rights. The Federal Court was

not examining the complaints as the only court and the applicant was

informed in advance that his public law appeals lacked prospects of

success. Finally, in the first two sets of proceedings (see A and B

above) the applicant sought redress directly with the Federal Court

whereas under Swiss law he could have lodged a plea of nullity with the

cantonal Court of Appeal.

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 outstanding fees for

earlier Federal Court proceedings; participation in those proceedings

as well as in other proceedings concerning different subject-matters;

the opinion that the appeals lacked prospects of success expressed when

deciding on the advance court fees and the decision to divide one

appeal into two proceedings) were considered irrelevant by the Federal

Court and the Commission does not find this conclusion arbitrary.

As to the complaint of alleged dependence of judges in

Switzerland on political parties, the Commission observes that the

applicant has not shown that the judges who participated in the

proceedings complained of lacked impartiality because of their

dependence on any political party.

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 cases, the Commission recalls that the Federal

Court did not determine the merits of his public law appeals 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 cases after his failure to pay the court fees in advance. He

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

and that no judgments 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.

2. The applicant further complains that the disciplinary fines of

1,500 SFr imposed on him pursuant to Section 31 para. 2 of the Federal

Judiciary Act in each of the proceedings breached his rights under

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

The Commission has found earlier that a disciplinary fine imposed

on the present applicant by virtue of Section 31 of the Federal

Judiciary Act fell in principle outside the scope of Article 6

(Art. 6) of the Convention (cf. No. 21083/92, Dec. 12.10.94, with

further references; unpublished).

The Commission recalls that in application No. 21083/92 the fine

complained of amounted to 500 SFr, whereas in the present case the fine

equalled 1,500 SFr. In both cases the maximum fine provided for by the

law then in force was imposed. As in application No. 21083/92, the

Commission finds that in the present case the disciplinary fine did not

bring the matter within the criminal sphere.

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. To the extent that the applicant alleges a violation of Article

13 (Art. 13) of the Convention, the Commission recalls that 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). However, in the present case the Commission has

rejected the substantive claims either as disclosing no appearance of

a violation of the Convention or as being incompatible ratione materiae

with the provisions of 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 applicant alleges a violation of Article 14

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

court fees and disciplinary fines on him.

However, the applicant has not shown that the Federal Court

treated his cases 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