Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21217/93 Application No. 21218/93

by Willi BRAND and 22 others by Hans BÖTSCHI and 12 others

against Switzerland against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 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

Mr. K. ROGGE, 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 December 1992

by Willi BRAND and 22 others against Switzerland and registered on

21 January 1993 under file No. 21217/93, and to the application

introduced on 31 December 1992 by Hans BÖTSCHI and 12 others against

Switzerland and registered on 21 January 1993 under file No. 21218/93;

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 particular circumstances of the case

The applicants are individuals and legal persons residing in

Switzerland and involved in animal husbandry. Their particulars are

set out in Appendix 1 attached hereto. The applicants in Application

No. 21217/93 are represented by Mr. Jakob Huber, a lawyer practising

in Kaltbrunn. The applicants in Application No. 21218/93 are

represented by Mr. Arnold Weber, a lawyer practising in St. Gallen.

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

summarised as follows.

By regulation (Höchstbestandesverordnung) of 10 December 1979 the

Federal Council (Bundesrat) fixed limits on the number of animals which

could be kept for farming purposes. The regulation was revised in 1981

and 1986. Farmers had a transitional period expiring on

31 December 1991 to comply with the regulation. After that date

farmers were liable to pay a surcharge (Abgabe) if the limits were

exceeded.

The applicants considered that they had been expropriated since,

by virtue of the regulation, they had to reduce their livestock to the

fixed limits. Together with other farmers they introduced actions for

compensation with the Federal Court (Bundesgericht).

The Court invited each of the applicants to pay 10,000 SFr

advance court fees. The applicants in Application No. 21218/93 were

informed that the advance court fees were imposed in accordance with

Section 150 para. 1 of the Federal Judiciary Act (Bundesgesetz über die

Organisation der Bundesrechtspflege). The amount of the fees was fixed

pursuant to Section 153 of the Federal Judiciary Act and the scale of

fees introduced on 15 September 1969.

On 16 March 1990 the Rapporteur (Instruktionsrichter) joined all

75 actions introduced in this matter and determined that the only point

of law on which the Federal Court had to decide was the question

whether there had been a material expropriation.

The applicants had the opportunity to present a reply both to the

submissions by the Department of Finance (Eidgenössische

Finanzverwaltung) and to its subsequent rejoinder. In September 1991

preliminary oral hearings took place and subsequently the applicants

submitted their written observations on the case.

At the principal hearing held on 16 October 1991 the applicants'

lawyers addressed the court. On 18 October 1991 the first deliberation

took place. At its end several of the initial 75 claimants withdrew

their actions. No final decisions were taken on the applicants'

cases.

On 6 and 7 December 1991 37 claimants requested the exclusion of

the participating judges. On 7 April 1992 the Federal Court rejected

this request and the claimants concerned were charged 300 SFr in

addition to fees in the main proceedings.

The second deliberation, originally scheduled for 13 December

1991, was held on 8 May 1992. In its detailed judgment comprising 31

pages rendered on the same day, the Federal Court dismissed the

applicants' claims concerning compensation. It held, inter alia, that

the introduction of livestock limits had a legal basis in Section 19a

(a) of the 1951 Agriculture Act (Landwirtschaftsgesetz) and Article

31bis para. 3 (b) of the Federal Constitution authorising the

Confederation to pass regulations diverging from the constitutional

principle of liberty of trade. In fact, this measure aimed at

maintaining sound husbandry and productive agriculture based on small

and medium-size farms rather than large industrial units.

The Federal Court found that the Swiss Constitution did not

provide for compensation when State intervention (i.e. interference

with the liberty of trade and business in the applicants' cases) had

only secondary and indirect effects on property. The Federal Court

considered that granting the farmers compensation would result in a

State subsidy system replacing the regulations as enacted. Such a

decision would, in the Federal Court's view, amount to declaring the

system of livestock limits introduced by the legislator

unconstitutional, and the Federal Court lacked jurisdiction in this

respect.

The Federal Court also held that the interference with the

applicants' rights was mitigated by the advantages of the new system

in respect of all farmers, namely preventing over-production and a

subsequent price collapse. As an example, the production of pork was

quoted, where home production allegedly exceeded the 95% limit provided

for in the relevant regulation.

The Court found no analogy with expropriation, since the

intervention was basically aimed at limiting the production capacities

with a view to maintaining as many farms as possible. It considered

that the regulation was in the farmers' interests rather than the

public interest.

The Federal Court further considered that the applicants had to

take into account the risk they underwent when enlarging their

production facilities and that this risk was inherent in any

entrepreneur's activity. Moreover, the Court took into account the

fact that the legislator provided for a transitional period in order

to mitigate, as far as possible, the impact of the new regulation on

farmers' investments.

The Federal Court considered that the size of losses suffered by

individual applicants was irrelevant. It therefore found it

unnecessary to take supplementary evidence or to order inspections and

expert reports in individual cases as requested by the applicants.

The court fees were fixed pursuant to Section 153a of the Federal

Judiciary Act as amended and in force since 15 February 1992 (see

Appendices 2 and 3). The Federal Court fixed the fees in accordance

with the new scale enacted on 1 April 1992, i.e. taking into account

the value of the subject-matter and also the fact that there were

several similar actions concerning the same matter. The Court also

took into consideration, in fixing the fees in each individual case,

that if there had been no request for exclusion of the judges, the

decisions would have been taken on 13 December 1991, i.e. before the

entry into force, on 15 February 1992, of the amendments providing for

higher fees.

Relevant domestic law

Fees in proceedings before the Federal Court are governed by the

Federal Judiciary Act.

Section 150 para. 1 of the Act provides, inter alia, that a

plaintiff before the Federal Court must, upon the order of the

President, provide security for the likely court fees.

Pursuant to para. 1 of Section 153a the fees are to be determined

according to the value, the volume and the complexity of the subject-

matter, the way of conducting the proceedings and the financial

situation of the participants. Para. 2 (a) provides for fees of

between 1,000 and 100,000 Sfr when the Federal Court is the only level

of jurisdiction.

The provisions of Section 153a are supplemented by a scale of

fees which entered into force on 1 April 1992. The scale is not

binding and its relevant part recommends the following fees:

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

500,000- 1,000,000 12,000- 30,000

1,000,000- 2,000,000 15,000- 50,000

2,000,000-10,000,000 20,000- 80,000

more than 10,000,000 40,000-100,000

According to the transitional provisions Section 153a was

applicable to all cases pending before the Federal Court at the date

of entry into force of the amendments.

COMPLAINTS

The applicants allege a violation of their right to a fair

hearing under Article 6 para. 1 of the Convention. They complain that

the Federal Court did not establish the facts in each individual case,

refused to carry out on the spot inspections and to request expert

reports. They allege that the main issue at stake, i.e. whether there

was an expropriation, could not be decided in a fair manner without

establishing the loss in each individual case.

The applicants further consider that the Federal Court

established the facts contrary to the reality and to the evidence

submitted by them:

a) by finding that the profitability of the domestic animal

husbandry was mainly based on import limitations. The applicants claim

that they proved that the limitation on meat import was aimed

exclusively at protecting the domestic arable farming;

b) by establishing that the absence of any regulatory measures would

lead to an over-production of meat. The applicants claim that the

market was self-regulated by the so-called "pig cycle";

c) by affirming that the implementation of the livestock limits

aimed also at protecting the applicants' interests;

d) by holding that compensation for losses the applicants had

suffered would amount to subsidising animal production.

Finally, the applicants complain about excessive court fees. In

their view, in the absence of an individual examination of any of the

complaints, the fees charged constitute a punishment and violate their

right to a fair trial under Article 6 para. 1 of the Convention.

Moreover, the proceedings were allegedly unfair in that (i) after the

first hearing the applicants were encouraged to withdraw their actions

in order to avoid higher expenditure and (ii) the court fees in respect

of claimants who withdrew their actions were relatively low. Those

applicants who challenged the judges complain about the supplementary

fee of 300 SFr. Moreover, they complain of having been charged

disproportionately higher fees than the claimants who had not

challenged the judges.

THE LAW

1. The Commission, having regard to the similarity of the

applications, considers it appropriate to join them under Rule 35 of

its Rules of Procedure.

2. The applicants allege 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 applicants allege that the Federal Court failed to establish

several relevant facts and established other facts contrary to the

reality and to the evidence submitted by them.

The Commission recalls that it has no general jurisdiction to

consider whether domestic courts have committed errors of law or fact,

its function being to consider the fairness of the proceedings (cf.

No. 6172/73, Dec. 7.7.75, D.R. 3 p. 77; No. 10000/82, Dec. 4.7.83, D.R.

33 p. 247). It is primarily for the national courts to assess the

evidence before them (cf., mutatis mutandis, Eur. Court H.R., Schenk

judgment of 12 July 1988, Series A no. 140, p. 29, para. 46), unless

there has been gross unfairness or arbitrariness (cf. No. 7987/77,

Dec. 13.12.79, D.R. 18 p. 31).

In the present case the applicants had ample opportunity to reply

to the arguments brought by the Department of Finance and to submit

evidence which they considered necessary.

To the extent that the applicants allege a violation of their

right to a fair hearing in that the Federal Court took the decision

without establishing the facts in each individual case, the Commission

notes that the Federal Court, for the reasons stated in its judgment,

did not, in its examination of the legislation complained of and its

application, consider it necessary to establish these facts. The

Commission cannot find that the Federal Court acted arbitrarily in this

respect, or otherwise, as regards the establishment of the facts and

the assessment of the evidence submitted.

The Commission notes that the Federal Court decided on the

question of law, namely whether the implementation of the livestock

limits regulation resulted in expropriation of the applicants'

property. This decision was taken by means of application and

interpretation of domestic law which the Commission cannot review (cf.

No. 10153/82, Dec. 13.10.86, D.R. 49 p. 74).

The Federal Court assumed that the applicants had suffered

losses. However, for the reasons set out in the judgment, it reached

the conclusion that there had been no expropriation of the applicants'

property. The Federal Court found it therefore irrelevant to determine

the amount of the loss in each individual case, as claimed by the

applicants, and the Commission does not find this conclusion

unreasonable.

It follows that there is no appearance of unfairness or

arbitrariness in the proceedings complained of, considered as a whole.

This part of the application is therefore manifestly ill-founded within

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

3. The applicants further complain about imposition of

disproportionately high fees for the proceedings, about a supplementary

fee of 300 Sfr having been imposed on those who challenged the judges

and about having been advised to withdraw their actions in order to

avoid higher expenses.

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

alia, a right of access to the courts (see Eur. Court H.R., Fayed

judgment of 21.9.94, Series A No. 294-B, para. 65 and the case-law

there referred to).

However, it does not appear from the applicants' submissions that

their right to introduce the proceedings before the Federal Court was

in any way impaired by the imposition of costs in the proceedings. The

applicants do not submit that they applied for free legal aid or that

they requested and were refused a waiver of court fees. Nor does it

appear from the documents submitted that the fees and the alleged

advice to withdraw the actions prevented the applicants from conducting

those proceedings effectively through their lawyers. The Commission

considers, therefore, that the imposition of the costs of the

proceedings on the applicants was not contrary to 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 of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. Finally, the applicants complain that the fees imposed on the

claimants who withdrew their actions after the first hearing were much

lower than those imposed on them. Moreover, the applicants affected

complain that the claimants who had not challenged the Federal Court

judges were charged disproportionately lower costs.

The Commission notes that the Federal Court, in fixing the fees,

applied Section 153a of the Federal Judiciary Act as in force since

15 February 1992. The fees were in each individual case lower than the

minimum amount set by the scale, which was not binding (see Appendices

2 and 3). The Federal Court took into account the fact that, had there

been no challenge of the judges, the decision would have been taken in

December 1991, i.e. before the entry into force of the amendments

introducing higher fees. It is for this reason that the Federal Court

charged the claimants who had not challenged the judges lower fees.

As to the claimants who withdrew their actions after the first

hearing, i.e. prior to the entry into force of the amendments providing

for higher fees, the fees imposed on them were fixed in application of

the law then in force, account being taken of the fact that the

proceedings were not completed.

The Commission has found above that the imposition of the court

fees on the applicants was not contrary to Article 6 para. 1 (Art. 6-1)

of the Convention. For similar reasons, it considers that the

differentiation the applicants complain of did not affect their rights

under this provision.

The Commission further observes that the Federal Court gave

reasons for its decision concerning the fees for the proceedings and

their examination does not disclose any arbitrariness.

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

1. DECIDES TO JOIN APPLICATIONS Nos. 21217/93 AND 21218/93;

2. DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

APPENDIX 1

Application No. 21217/93

Willi BRAND and 22 others v. Switzerland

Particulars of the applicants

1. Willi BRAND, residing at Cournillens

2. Albert BRAND, residing at Cournillens

3. FRIOEUF SA, residing at Cournillens

4. Peter ENGELI, residing at Engishofen

5. Hans FREI-SANDMEIER, residing at Schafisheim

6. Walter FRISCHKNECHT, residing at Appenzell

7. GROSSRUGENSTALL AG, residing at Kerns

8. HAMMER AG, residing at Cham

9. Erbengemeinschaft Emil HUBER, residing at Kaltbrunn

10. Alois IMLIG, residing at Oberriet

11. JOST AG, residing at Gunzwill

12. Josef KURMANN, residing at Herlisberg

13. Alois RÖTHLIN, residing at Lachen

14. Pirmin SCHÖPFER, residing at Mühlau

15. STAFFELEGGHOF AG, residing at Küttingen

16. Walter BIRCHER, residing at Küttingen

17. STRÄHL AG, residing at Leimbach

18. BASISZUCHT FORTUNA AG, residing at Leimbach

19. AGROPORC AG, residing at Leimbach

20. Roman OCHSNER, residing at Frutwilen

21. Rolf REINHART, Gutsbetrieb, residing at Lipperswil

22. GENEA AG, residing at Lipperswil

23. KAPROS AG, residing at Lipperswil

Application No. 21218/93

Hans BÖTSCHI and 12 others v. Switzerland

Particulars of the applicants

1. Hans BÖTSCHI, residing at Niederhelfenschwil

2. Eugen EBERLE, residing at Güttingen

3. Gebrüder EBERLE, residing at Güttingen

4. FEAG Sonnhalde AG, residing at Eschenbach

5. Adolf FORSTER AG, residing at Märstetten

6. Heinz JORDI, residing at Schönholzerswilen

7. Fritz MARTI AG, residing at St. Gallen

8. ES-Zuchtstation Sevelen AG, residing at Sevelen

9. Hans PFANDER, residing at Veltheim

10. ULRO AG, residing at Gipf-Oberfrick

11. Versuchsbetrieb Rüti AG, residing at Züberwangen

12. VLS-Zuchtstation Salez AG, residing at Salez

13. Paul ZEHNDER, residing at Kriessern

APPENDIX 2

Application No. 21217/93

Applicants Request for Value of Scale of fees Actual

exclusion the subject under fees

of judges matter Section 153a

-------------------------------------------------------------

1. W. Brand

2. A. Brand Y 5,400,000 20,000-80,000 18,300

3. Frioeuf SA

--------------------------------------------------------------

4. P. Engeli Y 2,340,000 20,000-80,000 14,300

--------------------------------------------------------------

5. H. Frei-Sandmeier Y 2,237,000 20,000-80,000 14,300

--------------------------------------------------------------

6. W. Frischknecht Y 828,000 12,000-30,000 10,300

--------------------------------------------------------------

7. Grossrugenstall AG Y 2,290,000 20,000-80,000 14,300

--------------------------------------------------------------

8. Hammer AG Y 5,834,000 20,000-80,000 18,300

--------------------------------------------------------------

9. Erbengemeinschaft

E. Huber Y 1,061,000 15,000-50,000 12,300

--------------------------------------------------------------

10. A. Imlig Y 4,713,000 20,000-80,000 16,300

--------------------------------------------------------------

11. Jost AG Y 453,400 8,000-20,000 6,300

--------------------------------------------------------------

12. J. Kurmann Y 1,878,000 15,000-50,000 12,300

--------------------------------------------------------------

13. A. Röthlin Y 7,824,000 20,000-80,000 18,300

--------------------------------------------------------------

14. P. Schöpfer Y 898,000 12,000-30,000 10,300

--------------------------------------------------------------

15. Staffelegghof AG

16. W. Birche Y 1,883,000 15,000-50,000 12,300

--------------------------------------------------------------

17. Strähl AG

18. Basiszucht Fortuna AG

19. Agroporc AG Y 14,638,496 40,000-100,000 20,300

--------------------------------------------------------------

20. R. Ochsner

21. R. Reinhart N 2,828,055 20,000- 80,000 8,000

22. Genea AG

23. Kapros AG

--------------------------------------------------------------

APPENDIX 3

Application No. 21218/93

Applicants Request for Value of Scale of fees Actual

exclusion of the subject under fees

of judges matter Section 153a

--------------------------------------------------------------

1. H. Bötschi Y 1,994,300 15,000-50,000 12,300

--------------------------------------------------------------

2. E. Eberle

3. Gebr. Eberle Y 1,770,000 15,000-50,000 12,300

--------------------------------------------------------------

4. Feag Sonnhalde AG Y 2,400,000 20,000-80,000 14,300

--------------------------------------------------------------

5. A. Forster AG Y 7,423,000 20,000-80,000 18,300

--------------------------------------------------------------

6. H. Jordi Y 1,842,000 15,000-50,000 12,300

--------------------------------------------------------------

7. F. Marti AG Y 1,800,000 15,000-50,000 12,300

8. ES-Zuchtstation Sevelen AG

--------------------------------------------------------------

9. H. Pfander Y cca. 935,710 12,000-30,000 8,300

--------------------------------------------------------------

10. Ulro AG Y 3,150,000 20,000-80,000 16,300

--------------------------------------------------------------

11. Rüti AG Y 2,300,000 20,000-80,000 14,300

--------------------------------------------------------------

12. VLS Zuchtstation

Salez AG Y 1,180,000 15,000-50,000 12,300

--------------------------------------------------------------

13. P. Zehnder Y 771,000 12,000-30,000 10,300

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BRAND AND 22 OTHERS v. SWITZERLAND ; BÖTSCHI AND 12 OTHERS v. SWITZERLAND

BRAND AND 22 OTHERS v. SWITZERLAND ; BÖTSCHI AND 12 OTHERS v. SWITZERLAND

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