Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17748/91

by Guy ANKERL

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 July 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 10 December 1990

by Guy Ankerl against Switzerland and registered on 4 February 1991

under file No. 17748/91;

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 8 June

1993 and the observations in reply submitted by the applicant on

10 July 1993;

Having deliberated;

Decides as follows:

THE FACTS

Particular circumstances of the case

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

summarised as follows.

The applicant, a Swiss citizen born in 1933, is a sociology

professor residing in Geneva.

I.

Since 1978 the applicant sub-leased an apartment in Geneva from

the Régie Immobilière SA which in turn leased it from the proprietor,

the SI Chrysanthemum SA. Apparently, the applicant had no contract in

writing. The Régie Immobilière SA eventually went bankrupt. In 1986

the Régie Naef SA, acting in the name of Chrysanthemum, informed the

applicant that the building would be renovated and raised. On

8 May 1987 the Régie Naef SA informed the Régie Immobilière of the end

of its lease contract; it also requested the latter to terminate the

applicant's sub-lease.

On 14 July 1987 the Régie Naef transmitted to the applicant pay

slips (bulletins de versement) for his rent, while stating that it did

not thereby recognise the existence of a contract between him and the

proprietor. On 21 July 1987 the Régie Immobilière informed the

applicant of the end of the lease as of 28 February 1988.

Eventually, the GPR SA took over administration of the building.

The applicant attempted to obtain from the GPR SA a principal lease

contract. Mr. L., the administrator at GPR SA, forwarded the request

to the proprietor who refused it. The GPR SA then transmitted pay

slips to the applicant who, by letter dated 29 February 1988, confirmed

that he would in future pay the rent into the account mentioned. This

letter remained without a reply.

On 22 April 1988 the applicant and his wife had a meeting with

Mr. L. The discussion apparently concerned the issue whether or not

the applicant could remain in his apartment.

II.

On 13 October 1988 the SI Chrysanthemum SA requested the Geneva

First Instance Court (Tribunal de première instance) to order the

vacation of the applicant's apartment. The applicant contested this

as the proprietor had demonstrated the intention to conclude a lease

contract with him as the principal lessee.

On 19 May 1989 the Geneva First Instance Court held a hearing at

which it attempted to establish the content of the discussion on

22 April 1988. It first heard Mr. L. who spoke under oath (see below,

Relevant domestic law). Mr. L. stated that in his recollection he had

clearly informed the applicant that there no longer existed a lease

contract. Insofar as the applicant had expressed the wish to continue

to reside in the apartment, he, Mr. L., had clearly said that he

himself could not take any decision in this respect.

The applicant's wife then made a statement, though not under oath

(cf. below, Relevant domestic law). She stated inter alia that Mr. L.

had informed them that the building would be raised, and that during

renovation work they could occupy another apartment. The applicant's

wife concluded that they had left Mr. L. reassured and optimistic

(rassurés et optimistes). The applicant's wife stated that she could

not remember whether Mr. L. had said that he would speak with the

proprietor; she had had the impression that he enjoyed a certain

autonomy.

Finally, the applicant spoke, claiming that when he concluded the

lease contract with the Régie Immobilière SA, he had not realised that

he was in fact sub-leasing the apartment.

The Geneva First Instance Court gave its decision on

12 October 1989. Therein, it held that the parties were not bound by

a lease contract, and it ordered the applicant to vacate the apartment.

The Court first summarised the facts of the case and the

statements of the persons attending the hearing on 19 May 1989. It

then stated that it had to examine whether the proprietor had given its

agreement to a contract, inter alia by letting "the collaborator of the

administration explain to the (applicant) that he would refer the

matter to the proprietor" ("en laissant exposer à ce dernier, par un

collaborateur de la régie, qu'il allait en référer à la société

propriétaire").

The Court then considered inter alia, without reference to any

particular statement of a person attending the hearing, that "in the

circumstances of the particular case, a lease contract was not

concluded, neither orally (no proof having been adduced of an oral

agreement), nor even by a concluding act" ("dans les circonstances du

cas d'espèce - il n'y a pas eu conclusion d'un bail ni verbal

preuve d'un accord verbal n'est pas rapportée>, ni même par acte

concluant").

III.

The applicant then filed an appeal which the Court of Appeal

(Cour de justice) of the Canton of Geneva dismissed on 7 June 1990.

IV.

In his subsequent public law appeal (recours de droit public) to

the Federal Court (Tribunal fédéral) the applicant complained inter

alia under Articles 6 and 14 of the Convention that the courts had

arbitrarily relied solely on the statement of Mr. L., and disregarded

his wife's statement. The public law appeal states:

"the fact that the representative of one of the parties was

admitted to be heard as a sworn witness creates a flagrant

inequality in respect of the other party who after all was not

under the circumstances in a position to present witnesses who

could be sworn. The equality of arms guaranteed both by the

Federal Constitution and by the European Convention of Human

Rights was not respected" (public law appeal, p. 17).

:

"le fait d'avoir admis que le représentant d'une partie soit

entendu comme témoin assermenté crée une inégalité flagrante avec

l'autre partie qui elle n'a pas été, par la force des choses, en

mesure de citer des témoins susceptibles d'être assermentés.

L'égalité des armes garantie tant par la Constitution Fédérale

que par la Convention Européenne des droits de l'Homme n'a pas

été respectée".

In the conclusion to his public law appeal the applicant stated:

"There is not the slightest doubt that the proceedings

terminated by the judgment against which I am appealing are

marred by numerous faults and that it constitutes in particular

a violation of Article 4 of the Constitution and of Articles 6

and 14 of the Convention" (public law appeal, p. 22).

"Il ne fait aucun doute que la procédure ayant abouti à l'arrêt

dont recours est entachée de nombreux vices et qu'elle consacre

notamment la violation de l'article 4 de la Constitution et les

articles 6 et 14 CEDH."

On 3 October 1990 the Federal Court dismissed the public law

appeal. The Court referred inter alia to the applicant's complaint

that Mr. L. was heard as a witness under oath, whereas in the

applicant's view he should have been assimilated to the party which he

represented. The Court noted that the applicant was confusing the

representatives of the company, on the one hand, and mandated persons

such as the administrator of a building, on the other. The Federal

Court found that the lower Courts had not arbitrarily interpreted the

Geneva Code of Civil Procedure when they did not apply its Section 225

to Mr. L. when heard as a witness. The Court continued:

"according to the commentators of the Geneva Code of Civil

Procedure, hearing a person for enquiries has only an informative

purpose and no probative value ... In the present case it was

not therefore arbitrary not to consider the explanations

furnished by [the applicant's wife]. In fact, the applicant has

not at all demonstrated that the Cantonal Court interpreted in

an untenable manner the statements of the witness under oath,

[Mr. L.]."

"selon les commentateurs de la loi de procédure civile genevoise,

l'audition à titre de renseignement n'a qu'une portée

informative, sans valeur probante ... Il n'y avait donc rien

d'arbitraire, en l'espèce, à ne pas tenir compte des explications

fournies par [l'épouse du requérant]. Le recourant ne démontre,

du reste, nullement en quoi la cour cantonale aurait interprété

d'une manière insoutenable les déclarations du témoin assermenté,

[M. L.]."

Relevant domestic law

Section 222 of the Geneva Code of Civil Procedure (Loi de

procédure civile) states that every person appearing as a witness must

make his statement under oath (sous la foi du serment).

According to Section 225 para. 1, certain persons, in particular

the spouse of one of the parties, cannot be heard as witnesses.

Section 226 provides that the persons mentioned in Section 225 may be

heard, though not under oath, and only for information (seulement Ã

titre de renseignement).

COMPLAINTS

The applicant complains under Articles 6 and 14 of the Convention

of the unequal treatment as regards the hearing of witnesses. The

Geneva First Instance Court only had three witnesses to prove the exact

content of the discussion on 22 April 1988: Mr. L., the applicant, and

his wife. In Geneva, the administrator of a building normally

concludes a lease contract. The Geneva Court heard Mr. L. as a witness

under oath, although as representative of the proprietor he had just

as much a direct and personal interest in the outcome of the case as

the applicant himself. According to Swiss law, a contract concluded

orally is valid.

The applicant submits that testimony given under oath is of

crucial importance. A procedure admitting testimony under oath of only

the administrator, but not of the lessee, places the latter in a

disadvantageous position. The applicant concludes that there was

unequal treatment in that neither he nor his wife could give testimony

under oath.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 December 1990 and registered

on 4 February 1991.

On 31 March 1993 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and the merits of the

application.

The Government's observations were received by letter dated

8 June 1993 and the applicant's observations in reply were dated

10 July 1993.

THE LAW

1. The applicant complains under Articles 6 and 14 (Art. 6, 14) of

the Convention of unequal treatment as regards the hearing of a

witness.

2. Under Article 26 (Art. 26) of the Convention the Commission may

deal with the case only after domestic remedies have been exhausted.

The Government contend that the applicant did not exhaust

domestic remedies. They argue that the applicant did not sufficiently

substantiate in his public law appeal his complaint under Articles 6

and 14 (Art. 6, 14) of the Convention and thus committed a procedural

error, which under the case-law of the Convention should result in non-

exhaustion of domestic remedies. Secondly, the Government submits that

the applicant did not raise the same complaints before the Federal

Court and the Commission. It is pointed out that before the Federal

Court the applicant questioned an interpretation of the cantonal Code

of Civil Procedure applied by the courts of lower instances in deciding

on hearing the applicant's wife as a witness under oath, as being

arbitrary, unfair and creating a flagrant inequality between the

parties. Before the Commission the applicant relied on Articles 6 and

14 (Art. 6, 14) of the Convention in criticising the same decisions of

the lower courts. The Government consider it evident that the

complaints raised before the Commission had never been raised before

the Federal Court.

The applicant submits that in fact he motivated his complaint in

his public law appeal to the Federal Court under Articles 6 and 14

(Art. 6, 14) of the Convention and considers that before the Federal

Court he has raised the same complaints as before the Commission.

The Commission notes that in his public law appeal the applicant

expressly complained that "the fact that the representative of one of

the parties was admitted to be heard as a sworn witness created a

flagrant inequality in respect of the other party". Moreover, the

applicant explicitly invoked Articles 6 and 14 (Art. 6, 14) of the

Convention. In the Commission's view he did therefore raise the same

complaint as he is now making before the Commission.

The application cannot therefore be rejected under Article 26

(Art. 26) of the Convention for non-exhaustion of domestic remedies

within the meaning of that provision.

3. The applicant complains under Articles 6 and 14 (Art. 6, 14) of

the Convention that a procedure whereby a court in civil proceedings

concerning the existence of a lease contract admits testimony under

oath of the administrator of the company (i.e. the proprietor), but not

of the lessee or his wife, places them in a disadvantageous position.

4. The Commission, having regard to the parties' submissions under

Articles 6 para. 1 and 14 (Art. 6-1, 14) of the Convention, considers

that this application raises complex issues of law and fact which can

only be resolved by an examination of the merits. This complaint

cannot, therefore, be declared 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 ADMISSIBLE.

Secretary to the Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

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ANKERL v. SWITZERLAND

ANKERL v. SWITZERLAND

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