Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20765/92

by Toyi Cyprien BATALI

against Switzerland

The European Commission of Human Rights sitting in private on

9 January 1995, the following members being present:

MM. H. DANELIUS, Acting President

C.L. ROZAKIS

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

Mrs.J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 August 1992 by

Toyi Cyprien Batali against Switzerland and registered on

5 October 1992 under file No. 20765/92;

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

summarised as follows.

The applicant, a Togolese citizen born in 1945, is a chemical

worker residing at Zurzach in Switzerland.

A. Particular circumstances of the case

On 11 April 1974 the applicant married another Togolese citizen

at the Togolese Embassy in Bonn in Germany. The couple lived first in

Germany before moving to Switzerland in 1980. The spouses and their

three children have the right to domicile (Niederlassungsbewilligung)

in Switzerland.

On 19 December 1986 the applicant's wife filed a divorce action

which was transmitted to the Cantonal Court (Kantonsgericht) of the

Canton of Schaffhausen on 19 January 1987. Throughout the ensuing

divorce proceedings in Switzerland the applicant was represented by

a lawyer.

The applicant then filed various statements according to which

only Togolese courts were competent to pronounce a divorce in his

marriage, and if Swiss courts decided the case, they would have to

apply Togolese law. On 18 October 1988 the Cantonal Court confirmed

its jurisdiction to decide the divorce action.

On 2 December 1988, the applicant filed a divorce petition with

the Court of Appeal at Lomé in Togo.

On 9 December 1988 the Court of Appeal (Obergericht) of the

Canton of Schaffhausen rejected the applicant's appeal against the

decision of 18 October 1988 as being out of time.

On 7 November 1989 the Cantonal Court pronounced a divorce in the

applicant's marriage. In its decision the Court relied inter alia on

Section 61 of the Federal Private International Law Act (Bundesgesetz

über das Internationale Privatrecht; see below, Relevant domestic law).

This judgment was confirmed, upon appeal, by the Court of Appeal on

18 October 1991.

The applicant filed an appeal (Berufung) with the Federal Court

(Bundesgericht), complaining inter alia that his divorce would not be

recognised by Togo as both spouses were Togolese citizens who had

married on Togolese territory. The previous courts had also not taken

into consideration the Togolese customs and sense of justice; they had

not duly considered that he had instituted divorce proceedings in Togo.

On 20 May 1992 the Federal Court dismissed the applicant's

appeal.

In its decision the Court noted that the Cantonal Court had

correctly assumed the exclusive and non-derogable jurisdiction

(ausschliesslicher und unverzichtbarer Gerichtsstand) of the Swiss

courts, which was therefore also not called in question by the divorce

proceedings instituted in Togo. Moreover, the previous courts had

correctly assumed that the Federal Private International Law Act was

the applicable Act, and that according to this Act Swiss law was

applicable to the divorce; thus, Section 198 of this Act (see below,

Relevant domestic law) provided that the applicable law was determined

by this Act if a case was still pending before the court of first

instance on 1 January 1989, which had been the case with the

applicant's divorce. Sections 20 and 61 of the Act determined that

Swiss law was applicable.

The Federal Court then examined whether the Court of Appeal's

decision could be upheld under Swiss private international law. It

considered that the Court of Appeal had correctly refused to take into

consideration the alleged Togolese custom of polygamy, or that adultery

was not a ground for divorce.

B. Relevant domestic law

Section 20 para. 1 (a) of the Federal Private International Law

Act (Bundesgesetz über das internationale Privatrecht), which entered

into force on 1 January 1989, provides that a natural person has his

or her ordinary residence in the State, in which he or she resides with

the intention of permanent residence (dauernden Verbleibens).

According to Section 59 (a) of this Act, the Swiss courts at the

ordinary residence of the defendant will be competent to conduct the

divorce proceedings.

Section 61 para. 1 of the Act states that divorce will be subject

to Swiss law.

According to Section 197 para. 1 of the Act, Swiss courts will

remain competent for proceedings or requests which were pending at the

moment of the entry into force of the Act, i.e. on 1 January 1989.

According to Section 198, the applicable law is determined by the Act

for proceedings pending before the court of first instance at the

moment of the entry into force of the Act.

COMPLAINTS

The applicant complains that the Swiss courts, by admitting their

own jurisdiction and applying Swiss law, committed serious errors.

He further complains that he is divorced in Switzerland, though

his marriage, and his ties with his children, remain unchanged in Togo,

where the Swiss divorce will not be accepted. His family is split up

according to two different legal orders. He believes that Swiss views,

to which he has no relationship, were imposed on him.

The applicant does not rely on any particular provision of the

Convention.

THE LAW

1. The applicant complains that the Swiss courts, by admitting their

own jurisdiction and applying Swiss law, committed serious errors.

With regard to the judicial decisions of which the applicant

complains, 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 nevertheless examined the applicant's

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

However, it finds no indication that the applicant, who was represented

throughout the proceedings by a lawyer, could not sufficiently explain

his point of view or put forward any evidence which he regarded as

pertinent.

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.

2. The applicant complains of his divorce in Switzerland which will

not be accepted in Togo and alleges that Swiss traditions have been

imposed on him.

However, even assuming that these complaints raise an issue under

Article 8 (Art. 8) of the Convention, which guarantees to everyone

inter alia the right to respect for his family life, or under Article

12 (Art. 12) of the Convention, which guarantees the right to marry and

to found a family, the Commission sees no lack of respect for these

rights in the present case.

It follows that the remainder 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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (H. DANELIUS)

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BATALI v. SWITZERLAND

BATALI v. SWITZERLAND

LEXI