Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20572/92

by P. S.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. 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 21 May 1992 by

P. S. against Switzerland and registered on 2 September 1992 under file

No. 20572/92;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on 4 May

1994 and the observations in reply submitted by the applicant on

4 July 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1931, is a Swiss citizen residing at

Rothenthurm in Switzerland.

a. Particular circumstances of the case

I.

The applicant was involved in execution proceedings on account

of debts arising from mortgage bonds. He contested the execution by

introducing an action (Aberkennungsklage) with the Horgen District

Court (Bezirksgericht). In his submissions he threatened to kill three

judges involved in other proceedings if his action was not accepted.

In a letter addressed to the president of the governing board

(Verwaltungsratspräsident) of a bank the applicant further threatened

to kill four judges if he did not duly receive an answer to his letter.

In view thereof, the Zurich Court of Appeal (Obergericht) on

23 August 1991 convicted the applicant in appeal proceedings of

repeated attempted compulsion (wiederholte versuchte Nötigung) and

sentenced him unconditionally to three months' imprisonment.

The applicant filed a plea of nullity which the Zürich Court of

Cassation (Kassationsgericht) on 25 January 1992 declared inadmissible

as the applicant could file a plea of nullity with the Federal Court.

II.

Against the decision of the Court of Cassation the applicant

filed a public law appeal (staatsrechtliche Beschwerde) with the

Federal Court (Bundesgericht), alleging in particular that his

statements did not amount to compulsion. Previously, the applicant had

also filed a plea of nullity (Nichtigkeitsbeschwerde) with the Federal

Court against the judgment of the Zurich Court of Appeal, though the

plea of nullity remained suspended until the Zurich Court of Cassation

would give its decision.

On 20 February 1992 the President of the Court of Cassation

(Kassationshof) of the Federal Court ordered the applicant to pay

advance court costs of 2,000 SFr for the public law appeal and of 2,000

SFr for the plea of nullity. The order stated that non-payment within

the time-limit would result in the inadmissibility of the remedies.

The applicant did not pay the court costs. On 3 March 1992 the

applicant wrote to the President of the Court of Cassation of the

Federal Court, stating that the latter was not competent to impose

court costs in respect of the public law appeal.

On 26 March 1992 the Court of Cassation of the Federal Court

rejected the applicant's public law appeal and plea of nullity as the

applicant had not paid the advance court costs. The first page of the

decision stated as the subject matter "Criminal Proceedings; assessment

of evidence; repeated attempted compulsion" ("Strafverfahren;

Beweiswürdigung; wiederholte versuchte Nötigung").

b. Relevant domestic law

Before the Federal Court (Bundesgericht), a public law appeal

(staatsrechtliche Beschwerde) serves to complain about the violation

of constitutional rights, inter alia procedural rights (see Section 84

para. 1 of the Federal Judiciary Act ). A

plea of nullity (Nichtigkeitsbeschwerde) serves to complain about a

breach of Federal law (see Section 269 para. 1 of the Federal Code on

Criminal Procedure ).

According to Section 150 of the Federal Judiciary Act whoever

files an application with the Federal Court shall upon the President's

order provide a security for the probable court costs. If there are

special reasons the Court may waive the security partly or in its

entirety. If the time limit for providing the security expires without

payment, the application will not be dealt with.

COMPLAINTS

1. In his application before the Commission the applicant complains

under Article 6 of the Convention that the Federal Court imposed

advance court costs of 2,000 SFr on him in respect of his public law

appeal. He claims that Section 150 of the Federal Judiciary Act is

unlawful and that he has a right to apply to that Court irrespective

of his financial situation.

In his reply to the observations of the Government (see below,

PROCEEDINGS BEFORE THE COMMISSION) he also complains of the imposition

of court costs in respect of his plea of nullity to the Federal Court.

2. The applicant also complains of a breach of his right to a fair

trial under Article 6 of the Convention in that the Federal Court on

the first page of its decision of 26 March 1992 stated that the case

concerned the "assessment of evidence" although he, the applicant, had

not complained about the assessment of evidence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 May 1992 and registered on

2 September 1992.

On 2 March 1994 the Commission decided to communicate the

complaint about the fines imposed on the applicant.

The Government submitted their observations on 4 May 1994 and the

applicant his observations in reply on 4 July 1994.

THE LAW

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

Convention that the Federal Court imposed advance court costs of

2,000 SFr on him in respect of his public law appeal. Article 6 para.

1 (Art. 6-1) states, insofar as relevant:

"In the determination of ... any criminal charge against

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

by (a) tribunal established by law."

The Government submit that Article 6 (Art. 6) of the Convention

is not applicable to the proceedings at issue which related to the

applicant's public law appeal before the Federal Court. Before the

Commission he did not complain about the imposition of costs in respect

of his plea of nullity. The public law appeal was only concerned with

the decision of the Zurich Court of Cassation of 25 January 1992 which

declared his plea of nullity inadmissible. The Government further

submit that the applicant has not complied with the requirement as to

the exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention in that before the Federal Court he did not

request exemption from the court costs. Finally, the Government submit

that the imposition of court costs in the present case was called for

in the interests of the good administration of justice.

The applicant submits that Article 6 (Art. 6) of the Convention

is applicable and has been violated in the present case. He complains

in particular of the imposition of court costs in respect of both his

public law appeal and his plea of nullity before the Federal Court.

He submits that his public law appeal was filed against the Zurich

Court of Appeal. The Federal Court was not competent to impose advance

court costs. At that time the applicant had no money as his house had

just been auctioned at a loss; moreover, he was unemployed and did not

receive any unemployment benefits. The applicant claims that he has

directly felt the consequences of the decision of the Federal Court in

that thereafter he had to serve his prison sentence.

a) The Commission notes that in his original application before the

Commission the applicant complained of the imposition of advance court

costs in respect of the public law appeal which he had filed before the

Federal Court. According to these submissions the applicant's public

law appeal was directed against the decision of the Zurich Court of

Cassation of 25 January 1992.

In its decision of 25 January 1992 the Zurich Court of Cassation

declared the applicant's plea of nullity inadmissible as he could have

filed a plea of nullity with the Federal Court. The public law appeal

proceedings before the Federal Court thus concerned the issue of the

admissibility of the applicant's plea of nullity before the Zurich

Court of Cassation.

However, a decision as to whether or not a plea of nullity is

admissible does not involve "the determination of ... any criminal

charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. This part of the application is therefore incompatible

ratione materiae with the Convention within the meaning of Article 27

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

b) As regards the applicant's complaint of imposition of court costs

in respect of his plea of nullity to the Federal Court, the Commission

notes that this complaint was raised in the applicant's observations

of 4 July 1994, whereas the Federal Court's judgment was given on

26 March 1992.

The applicant has not therefore lodged this complaint within the

six months time-limit provided for in Article 26 (Art. 26) of the

Convention.

It follows that this complaint is inadmissible according to

Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant also complains under Article 6 (Art. 6) of the

Convention that the Federal Court in its decision of 26 March 1992

incorrectly stated that the case concerned the "assessment of

evidence". The Commission notes that in this decision the Federal

Court declared the applicant's public law appeal and plea of nullity

inadmissible as he had not paid the court costs. As Article 6

(Art. 6) of the Convention does not apply to proceedings relating to

the admissibility of appeals, this part of the application is also

incompatible ratione materiae with the Convention 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 Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

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P.S. v. SWITZERLAND

P.S. v. SWITZERLAND

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