Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18789/91

by T.P.

against Switzerland

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

private on 12 January 1994, the following members being present:

MM. A. WEITZEL, President

S. TRECHSEL

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, 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 12 August 1991 by

T.P. against Switzerland and registered on 12 September 1991 under file

No. 18789/91;

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 Swiss citizen born in 1949, is a lawyer residing

at Wilen in Switzerland.

In 1979 the applicant was appointed Secretary to the Department of

Justice of the Canton of Obwalden (Departementssekretär), Secretary to

the Cantonal Court (Kantonsgericht) of the Canton of Obwalden and, as a

position related to the first mentioned office, Deputy to the Bankruptcy

Officer (Stellvertreter des Konkursbeamten).

On 5 July 1989 the Cantonal Court sentenced the applicant to six

months' imprisonment, suspended on probation for two years, and to a fine

of 20,000 SFr for having fraudulently obtained a false attestation

(Erschleichung einer Falschbeurkundung) and for attempted evasion of the

Federal Act on the Acquisition of Real Property by Persons Abroad

(Bundesgesetz über den Erwerb von Grundstücken durch Personen im

Ausland). The applicant appealed against this decision.

On 6 July 1989 the Council of State (Regierungsrat) suspended the

applicant, and on 17 October 1989 it dismissed him as from

31 January 1990 from his position as Departmental Secretary.

On 31 January 1990 the Administrative Court (Verwaltungsgericht)

partly upheld the applicant's appeal and quashed the decision of

17 October 1989.

On 1 February 1990 the Council of State appointed a new Departmental

Secretary.

On 9 February 1990, upon the applicant's appeal against the

conviction of 5 July 1989, the Court of Appeal (Obergericht) of the

Canton of Obwalden, sentenced him to four months' imprisonment, suspended

on probation, and to a fine of 5,000 SFr. Against this decision the

applicant lodged a plea of nullity (Kassationsbeschwerde) with the Court

of Appeal Commission (Obergerichtskommission).

On 20 March 1990 the Council of State formally dismissed the

applicant as from 6 July 1989 from his position as Departmental

Secretary. The Council of State considered that even an eventual

acquittal in the criminal proceedings pending against the applicant could

not alter this decision, as already mere doubts concerning the integrity

of a civil servant were intolerable. The applicant filed an appeal

against this decision with the Administrative Court.

On 31 May 1990 the Court of Appeal Commission dismissed the

applicant's plea of nullity against the decision of the Court of Appeal

of 9 February 1990. Judges N., F. and V. participated in the decision.

The decision stated that the Commission could not freely review all

questions of fact and law.

In its decision of 19 June 1990 the Council of State stated that,

as the applicant was no longer Departmental Secretary, the position of

Deputy to the Bankruptcy Officer had to be filled, and it appointed V.

to the post. V. had participated in the decision of the Court of Appeal

Commission of 31 May 1990.

Against the decision of 31 May 1990 of the Court of Appeal

Commission the applicant lodged a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht), complaining of the

bias of judge V. who had had a personal interest in the outcome of the

proceedings against the applicant. Thus, V. had already been a candidate

for the office of Deputy to the Bankruptcy Officer prior to the decision,

or had at least known that his election was possible; the applicant would

have remained in office if he had been acquitted.

In its observations in reply, the Court of Appeal Commission

explained that the office of Deputy to the Bankruptcy Officer was of

minor importance, the applicant having in fact only once exercised this

function in the past ten years.

On 9 November 1990 the Federal Court dismissed the public law

appeal, the decision being served on the applicant on 14 February 1991.

In its decision the Federal Court noted that the applicant had been

dismissed as Departmental Secretary on 20 March 1990. All subordinate

duties also came to an end, among them the office of Deputy to the

Bankruptcy Officer. Already on 1 February 1990 there had been a new

appointment for the office of Departmental Secretary, no reservation

having been made that the office would again be open to the applicant in

case of his acquittal. Independently of the outcome of the criminal

proceedings, the applicant no longer occupied the position of Deputy.

Already for this reason there was no appearance, as claimed by the

applicant, that judge V. had an interest in the outcome of the

proceedings. The Federal Court concluded that judge V. had not sought

the office of Deputy and had not known, when participating in the

decision of the Court of Appeal Commission, that he would be requested

to take it over.

COMPLAINTS

The applicant complains under Article 6 of the Convention that judge

V. was biased in that he profited from the applicant's conviction. Thus,

V. must have known before the decision of the Court of Appeal Commission

of his eventual appointment to the office of Deputy to the Bankruptcy

Officer. The applicant contests that V. had to be persuaded to take over

the office, as he also applied for other offices.

THE LAW

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

Convention that judge V. of the Court of Appeal Commission, who decided

on the plea of nullity, profited from the applicant's conviction in that

he was appointed to the office previously occupied by the applicant.

According to the case law of the Convention organs, the existence

of impartiality required by Article 6 para. 1 (Art. 6-1) must be

determined according to a subjective test, that is on the basis of the

personal conviction of a particular judge in a given case, and according

to an objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect;

even appearances may be of a certain importance (see Eur. Court H.R., Fey

judgment of 24 February 1993, Series A no. 255, para. 28).

In the present case, the Commission observes that the applicant's

office as Deputy to the Bankruptcy Officer was subordinate to his

position as Departmental Secretary.

Moreover, the Court of Appeal Commission was not called upon to

decide on the applicant's guilt. Rather, after the applicant had been

tried by both the Cantonal Court and the Court of Appeal, the Court of

Appeal Commission decided on his plea of nullity and could no longer

freely review questions of fact and law. Judge V. was only one of three

judges participating in the decision of 31 May 1990 concerning the

applicant.

Furthermore, the applicant lost his position as Departmental

Secretary long before the Court of Appeal Commission gave its judgment

on 31 May 1990. Thus, the applicant's position as Departmental Secretary

came to an end on 1 February 1990, when a new Secretary was appointed.

On 20 March 1990 the applicant was formally dismissed from this position

by the Council of State.

In any event, it transpires that there was no relation between the

contested decision of the Court of Appeal Commission and the dismissal

of the applicant from his various functions. Thus, the Council of State

expressly stated on 20 March 1990 that its decision to dismiss the

applicant would remain unchanged even if the applicant were eventually

to be acquitted in the separate criminal proceedings pending against him.

Finally, the Commission notes the conclusions of the Federal Court

of 9 November 1990 according to which judge V. had not sought the office

at issue and had not known, when participating in the decision, that he

would be requested to take it over. The latter event occurred moreover

well after the decision of the Court of Appeal Commission.

As a result, there are no indications that the impartiality of judge

V. appeared open to doubt.

It follows that the application does not disclose any appearance of

a violation of the rights set out in Article 6 para. 1 (Art. 6-1) of the

Convention. 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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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T.P. v. SWITZERLAND

T.P. v. SWITZERLAND

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