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AS TO THE ADMISSIBILITY OF

Application No. 18990/91

by Armin NIDERÖST-HUBER

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 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 17 October 1991

by Armin Nideröst-Huber against Switzerland and registered on

24 October 1991 under file No. 18990/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 18 February 1994 and the observations in reply submitted

by the applicant on 1 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant is a Swiss national born in 1940 and resides in

Rickenbach (Switzerland). Before the Commission he is represented by

Mr. M. Ziegler, a lawyer practising in Lachen.

A. Particular circumstances of the case

In December 1985, following a change in the majority of share

holders, the applicant was dismissed without notice from his posts as

president of the board of management (Verwaltungsratspräsident) of a

limited company incorporated under Swiss law (Aktiengesellschaft) and

managing director (Geschäftsführer), respectively.

On 29 July 1986 the applicant brought an action for payment of

outstanding salary and compensation for dismissal against the company.

On 22 September 1988 the Schwyz District Court (Bezirksgericht)

dismissed the applicant's action.

On 19 June 1990 the Schwyz Cantonal Court (Kantonsgericht)

dismissed the applicant's appeal (Berufung). The Court found that the

applicant's dismissal without notice was justified as an important

reason for the applicant's dismissal existed. In the course of the

struggle for power between the applicant, who was supported by a part

of the share holders, and the new majority of share holders, the

applicant had not distinguished his own interests from those of the

company and neglected the company's interests. Thus, the applicant's

conduct had destroyed the confidence of the defendant in the

applicant's loyal management of the company.

On 12 October 1990 the applicant introduced at the Cantonal Court

a further appeal (Berufung) to the Federal Court (Bundesgericht).

On 22 October 1990 the Cantonal Court transmitted the appeal and

the file to the Federal Court and commented on the applicant's appeal.

In its comments the Cantonal Court stated inter alia that the basis of

confidence had been shattered because of the applicant's refractory

behaviour over the years and that the applicant had improperly accused

the District Court of bias. The comments of the Cantonal Court were

not transmitted to the parties.

On 12 December 1990 the defendant submitted observations, which

were transmitted to the applicant.

On 1 March 1991 the Federal Court dismissed the applicant's

appeal. The Federal Court, in a detailed reasoning, found that the

Cantonal Court had correctly assumed that the applicant's dismissal

without notice was justified. The applicant had, by his refractory

behaviour as managing director, continuously ignored the interests of

the former minority share holders. The company, with the changed

majority of share holders, could not be expected to continue the

employment contract and had the right to dismiss him without notice.

The Federal Court's judgment was served on the applicant on

30 April 1991.

On 2 May 1991 the Federal Court, upon the applicant's request,

transmitted to him the Cantonal Court's comments of 22 October 1990.

B. Relevant domestic law

Section 56 of the Federal Judiciary Act (Bundesrechtspflege-

gesetz) reads as follows:

(Translation)

"The Cantonal authority has to inform the other party immediately

of the filing of the appeal, even when it appears to be lodged

out of time. Within a week the Cantonal authority has to submit

to the Federal Court the writs of appeal, a copy of its decision

and of previous procedural decisions as well as the complete file

and its possible observations. It has to inform the Federal

Court about the date on which the impugned decision was served

on the parties, the date at which the appeal was received or

posted and when the opposing party was informed."

COMPLAINTS

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

that the principle of equality of arms was violated in the proceedings

before the Federal Court, because the Cantonal Court's comments of

22 October 1990 were not served on him. Thus, he had no opportunity

to comment on them. He submits that in these observations the Cantonal

Court made wrong or at least questionable submissions which the Federal

Court took over and to which he could not react.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of a violation of the principle of equality of arms, because

he did not receive the Cantonal Court's comments of 22 October 1990

during the proceedings before the Federal Court and, thus, had no

opportunity to react to them.

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

relevant, reads as follows:

"In the determination of his civil rights and obligations

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

within a reasonable time by an independent and impartial

tribunal established by law. ..."

The Government submit that no issue arises with regard to the

principle of equality of arms as this principle does not concern the

relation between a party and the deciding authority. In any event, the

fact that the applicant had no possibility to comment on the Cantonal

Court's observations did not infringe the principle of fair trial.

The Government point to the specific function of the observations

under Section 56 of the Federal Judiciary Act in the proceedings before

the Federal Court. The scope of such observations is limited as they

must not contain any new statement of facts. Their purpose is to allow

the Cantonal authority to comment on legal questions invoked for the

first time in the appeal, to rectify erroneous or tendentious

interpretations of the judgment, to clarify ambiguous passages of the

judgment and to comment on complaints about obvious mistakes allegedly

made by the court.

The Government further submit that the observations of the

Cantonal Court were very short and merely summed up its judgment. They

only referred to elements already contained in the judgment and neither

supplemented the facts nor the legal reasoning. The Federal Court

adopted the Cantonal Court's findings on the facts as contained in the

judgment, without relying on the Cantonal Court's observations. When

the Federal Court described the applicant's conduct with a concise

formula used by the Cantonal Court in its observations ("renitent" for

systematic opposition) it did not depart from the Cantonal Court's

judgment.

The Government also argue that civil proceedings should not be

aligned to criminal proceedings in an artificial way, as the

requirements inherent in the concept of fair trial are stricter with

regard to criminal proceedings and Contracting States have a greater

latitude when dealing with civil cases. In the context of the civil

proceedings the requirements of Article 6 (Art. 6) are met if, like in

the present case, the possibility for a second exchange of memorials

exists if the Cantonal Court's observations would have contained new

and serious arguments.

The applicant submits that the principle of equality of arms

requires that important legal submissions must be served on the parties

in order to allow them to react thereto. The right to make

observations does make a Cantonal Court a party to the proceedings

before the Federal Court. In making observations such a court makes

statements in favour of a party. As such observations emanate from an

official body, they are practically more important than the submissions

of the opposing party. There is therefore a shift in the equality of

arms in favour of the party it supports, which necessitates that the

appellant must be able to receive and comment on the observations.

The applicant submits further that, in any event, the Federal

Court's failure to serve the Cantonal Court's observations on him

violated his right to a fair hearing. The observations contained new,

and, in his view, incorrect elements which the Federal Court adopted

in its judgment. But even if the observations did not relate to new

elements, the Cantonal Court's remarks were likely to show him in an

unfavourable light before the Federal Court.

The Commission finds that the application raises complex issues

of fact and law with respect to the applicant's right to a fair hearing

under Article 6 para. 1 (Art. 6-1) of the Convention which must be

examined on the merits. The application cannot therefore be rejected

as being manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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NIDERÖST-HUBER v. SWITZERLAND

NIDERÖST-HUBER v. SWITZERLAND

LEXI