Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17885/91

by H.S.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting in

private on 12 January 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 27 December 1990 by

H.S. against Switzerland and registered on 11 March 1991 under file No.

17885/91;

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 German citizen born in 1935, resides in Berlin.

Before the Commission, he is represented by Mr E. Braun, a lawyer

practising in Zürich.

Particular circumstances of the case

Since 1970 the applicant maintained business connections with the

T-Financing-Company Ltd (the T-Company). In 1974, the T-Company

terminated his credit account and unsuccessfully requested repayment of

the credit.

In order to obtain security for its claim the T-Company on

14 October 1976 requested the Zürich District Court (Bezirksgericht) on

the basis of Section 271 para. 4 of the Swiss Bankruptcy Act (see below,

Relevant Domestic Law) provisionally to seize the applicant's credit

accounts. On 3 January 1977 the T-Company brought an action against the

applicant before this Court requesting payment of the credit granted to

the applicant.

In the ensuing proceedings the applicant contested the personal

nature of the credit, claiming that it had been taken for the account of

a company he had worked with. The applicant also claimed damages from

the T-Company.

In its judgment of 28 December 1979 the District Court ordered the

applicant to pay 1.062.134,20 SFr and interests to the T-Company. The

Court found inter alia that the applicant had unequivocally acknowledged

having obtained the credit for personal purposes.

In his subsequent appeal to the Zürich Court of Appeal (Obergericht)

the applicant brought a further claim for unjust enrichment against the

T-Company. In order to prove the accuracy of his allegations he

requested the hearing of witnesses. The Court of Appeal dismissed the

applicant's appeal on 28 May 1982.

His plea of nullity was dismissed on 5 September 1983 by the Zürich

Court of Cassation (Kassationsgericht). However, upon his public law

appeal the Federal Court (Bundesgericht) quashed this decision on

1 February 1984; the Court found in particular that the Court of Appeal

had not taken certain evidence which it had nevertheless regarded as

relevant. As a result, on 2 July 1984 the Zürich Court of Cassation

quashed the decision of the Court of Appeal, finding in particular that

the further evidence which had to be taken, could be obtained either by

examining a witness or by questioning the parties.

Proceedings were then resumed before the Zürich Court of Appeal

which on 20 November 1984 again dismissed the appeal. The Court regarded

it as unnecessary to hear witnesses concerning the applicant's claim for

damages, as the damage resulted mainly from the applicant's own conduct,

and a causal link between any conduct of the T-Company and the

applicant's damage need not to be established.

The applicant's further appeal was partly upheld by the Federal

Court on 29 November 1985. It found that the facts concerning the claim

for unjust enrichment had not been sufficiently assessed by the Zürich

Court of Appeal which was therefore requested to take evidence in order

to complete the establishment of the facts.

On 1 December 1986 the Zürich Court of Appeal held a hearing at

which it heard one of the witnesses proposed by the applicant. As the

other witness proposed had died in 1983, the applicant requested the

hearing of two new witnesses who would testify instead. He also

submitted documents as evidence in order to prove the accuracy of the

assigned claim.

On 13 March 1987 the Zürich Court of Appeal dismissed the appeal

without having taken any further evidence.

Upon the applicant's plea of nullity, the Zürich Court of Cassation,

on 7 December 1987, quashed the decision of the Zürich Court of Appeal

on the ground that the latter should have questioned all witnesses

proposed by the applicant.

Proceedings were resumed before the Zürich Court of Appeal. On

8 November 1988 the Court heard the witnesses proposed by the applicant.

On 9 January 1989 the applicant filed further observations with the Court

in which he requested the taking of further evidence. On 7 March 1989

the Zürich Court of Appeal dismissed the applicant's appeal.

The applicant filed a plea of nullity in which he complained that

his request of 9 January 1989 for the taking of evidence had not been

considered. On 2 December 1989 the Zürich Court of Cassation dismissed

the plea of nullity on the ground that the Zürich Court of Appeal had

already failed to consider this evidence in its decision of

13 March 1987. The judgment continued: "In his then plea of nullity this

was not contested by the applicant. The applicant is thus precluded from

raising this complaint for the first time in his present plea of

nullity." ("In der damals erhobenen Nichtigkeitsbeschwerde war dies vom

Beschwerdeführer nicht gerügt worden, womit es dem Bescherdeführer

verwehrt ist, diese Rüge erstmals mit der vorliegenden Nichtigkeits-

beschwerde zu erheben.").

The applicant lodged a public law appeal and an appeal which were

both dismissed by the Federal Court on 21 March 1990, the decisions being

served on the applicant on 28 June 1990. In particular, the Federal

Court did not consider it arbitrary that the Court of Cassation had not

admitted the applicant's complaint on the ground that he had not raised

it previously.

Relevant domestic law

According to Section 271 para. 4 of the Swiss Bankruptcy Act

(Schuldbetreibungs- und Konkursgesetz), the creditor may apply for the

provisional seizure of the assets of the debtor inter alia if the latter

does not reside in Switzerland. According to Section 59 para. 1 of the

Swiss Federal Constitution (Bundesverfassung), if a solvent debtor

resides in Switzerland, assets located outside the Canton where he

resides may not be seized.

COMPLAINTS

1. Under Article 6 para. 1 of the Convention the applicant complains

that he lost his case because his request for the taking of evidence was

only granted after two appeals to the Federal Court; these proceedings

having taken eight years, the main witness had died before he could

testify. The applicant claims that a period of eight years between the

request for the taking of evidence, and the hearing of witnesses breaches

the right to be heard "within a reasonable time" under this provision.

2. Under Article 6 of the Convention the applicant also complains that

evidence which he submitted on 9 January 1989 was not considered because

he had not filed it in a previous plea of nullity.

3. Under Articles 6 and 14 of the Convention the applicant complains

of discrimination in that Section 271 para. 4 of the Bankruptcy Act

permits seizure of foreigners' assets, whereas Swiss citizens are treated

differently under Section 59 para. 1 of the Constitution.

THE LAW

1. The applicant raises various complaints under Article 6 (Art. 6) of

the Convention, either alone or taken together with Article 14 (Art. 14)

of the Convention.

2. With regard to two of these complaints, the Commission recalls that,

under Article 26 (Art. 26) of the Convention, it may only deal with a

matter after all domestic remedies have been exhausted according to the

generally recognised rules of international law.

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

Convention of the length of the evidence proceedings as a result of which

the principal witness died and other witnesses had only insufficient

recollection. However, the applicant has not shown that during these

proceedings he filed a complaint with the authority concerned, and in

last resort with the Federal Court, to complain about their undue length

(cf No. 12929/87, Dec. 5.2.90, D.R. 64 p. 132; S. v. Switzerland, Comm.

Report 14.1.93).

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

Convention of discrimination in that Swiss law permits the seizure of

assets of foreigners but not of Swiss citizens. However, also in this

respect he has not shown that he raised this complaint in the domestic

proceedings and that in last resort he obtained a decision of the Federal

Court thereupon.

c) The applicant has not therefore exhausted the remedies available to

him under Swiss law. In this respect the application must be rejected

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

3. Insofar as the applicant complains under Article 6 (Art. 6) of the

Convention that evidence which he submitted was not considered as he

should have filed it in a previous plea of nullity, the Commission

recalls that the admissibility of evidence is primarily a matter for

regulation by national law and, as a rule, it is for the national courts

to assess evidence before them (see mutatis mutandis Eur. Court H.R.,

Asch judgment of 26 April 1991, Series A no. 203, p. 10, para. 26). In

the present case it does not appear unfair that the domestic courts did

not consider further evidence produced by the applicant as this complaint

could have been raised in an earlier plea of nullity.

The remainder of the application is therefore 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 INADMISSIBLE.

Secretary to the Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

Menu

H.S. v. SWITZERLAND

H.S. v. SWITZERLAND

LEXI