AS TO THE ADMISSIBILITY OF

                      Application No. 18900/91

                      by Josef MÜLLER

                      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 23 September 1991 by

Josef Müller against Switzerland and registered on 4 October 1991 under

file No. 18900/91;

      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 1924, is a businessman

residing in Zurich.

                                   I.

      In its edition of 28/29 November 1987 the Neue Zürcher Zeitung, a

Zurich newspaper, published an article with the title: "Closure of a café

in Wollishofen on account of a dispute about heating.

The provisional end of a petty war of several years" ("Schliessung eines

Cafés in Wollishofen wegen Heizungs-streits.  Das vorläufige Ende eines

jahrelangen Kleinkrieges").  The article referred to a dispute between

a restaurant which rented premises from the applicant and the applicant;

the latter eventually turned off the heating, forcing the restaurant to

close.  The article referred inter alia to a six months' prison sentence

imposed on the applicant in June 1986 by the Zurich District Court, the

Court of Appeal having reduced the sentence to three months "in April of

this year".

      On 7 December 1987 the applicant requested the judge in summary

proceedings of the District of Zurich (Einzelrichter im summarischen

Verfahren des Bezirks Zürich) to order the newspaper to publish a text

rectifying various statements in the newspaper article and stating his

own point of view (Gegendarstellung) on the matter.  This request was

based on Sections 28 et seq. of the Swiss Civil Code (Zivilgesetzbuch).

These provisions concern the protection of the right to respect for the

personality (Schutz der Persönlichkeit) and grant inter alia the right,

in case of a breach of the right to respect for the personality and if

certain conditions are met, to request the judge to have the corrections

or the judgment published.

      After conducting a hearing, the judge dismissed the request on

18 December 1987.  The applicant's appeal was dismissed by the Court of

Appeal (Obergericht) of the Canton of Zurich on 18 February 1988.

                                   II.

      On 11 March 1988 the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) with the Zurich Court of Cassation

(Kassationsgericht).  He also challenged various Court of Cassation

judges on the grounds that they had participated in previous proceedings

in which he had been involved, and he requested a new ad hoc bench of

judges.

      On 23 March 1988 the President of the Court of Cassation decided to

transfer the applicant's challenge to the Parliament (Kantonsrat) of the

Canton of Zurich for a decision as the Court of Cassation no longer had

the required five judges to decide on the applicant's challenge.  The

President also extended the time-limit for the applicant to substantiate

his plea of nullity;  he ruled that any further procedural decisions

would only be taken after the Zurich Parliament had decided on the

applicant's challenge.

      On 30 August 1988 the applicant filed a public law appeal with the

Federal Court (Bundesgericht), complaining of the length of the

proceedings (Rechtsverzögerungsbeschwerde) before the Court of Cassation.

The public law appeal was transmitted to the newspaper and to the Court

of Cassation for comment.  On 27 October 1988 the Federal Court dismissed

the appeal, noting in particular that the Court of Cassation had had to

suspend the proceedings as the case-file had been transmitted to the

Zurich Parliament for a decision on the applicant's challenge.

      Meanwhile, on 8 July 1988 the Bureau of the Parliament of the Canton

of Zurich dismissed  the applicant's challenge, the decision being served

on the applicant on 21 September 1988.

      Proceedings were then resumed before the Court of Cassation.  On 5

May 1989, the Court ordered the applicant to pay advance court costs of

2,500 SFr. The applicant filed an appeal against this decision which the

Court of Cassation dismissed on 25 July 1989.  The applicant then filed

a public law appeal with the Federal Court, whereupon the Court of

Cassation on 12 October 1989 decided to suspend the proceedings in order

to await the outcome of the proceedings before the Federal Court.

      On 19 April 1990 the Federal Court dismissed the applicant's public

law appeal.

      On 3 May 1990 the applicant paid the required advance court costs.

On 16 October 1990 the Court of Cassation dismissed his plea of nullity.

                                  III.

      The applicant filed an appeal (Berufung) against this decision with

the Federal Court.  Therein he also challenged 23 Federal Judges and

requested the Federal Court to decide on the merits of his case.

      On 6 May 1991 the Federal Court dismissed his challenge.  On

4 June 1991 the Court dismissed his appeal.  In its decision of 14 pages

the Court examined the applicant's various requests for the publication

of his own, opposing point of view, though it considered that the

requests were unfounded.  Insofar as the applicant complained that the

newspaper article referred to his conviction, although the latter had not

yet become final, the Federal Court noted the decisions of the previous

courts according to which the applicant had in principle been entitled

to have his own point of view published.  The Federal Court found that

the statement prepared by the applicant had contained other incorrect

elements which the courts had not themselves been in a position to

change.  Thus, the whole text would have had to be drafted again.

COMPLAINTS

      The applicant complains under Article 6 para. 1 of the Convention

of the length of the proceedings.

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

complains of the bias of the Federal Judges who summarily rejected his

challenge.  He further complains that the Federal Court did not conduct

an oral hearing on the matter.

      The applicant complains under Article 6 para. 2 of the Convention

of a breach of the presumption of innocence in that the newspaper article

stated that he had been sentenced to three months' imprisonment although

that conviction had not yet become final.

      Under Article 13 of the Convention he complains that he did not have

an effective remedy at his disposal as the courts concerned could not

fully examine the facts and complaints of the case.

THE LAW

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

length of the proceedings.

      The Commission notes that the proceedings at issue concerned the

applicant's request to order a newspaper to publish a text with his own

point of view.  This request was based on Sections 28 et seq. of the

Swiss Civil Code concerning the protection of the personality and

granting the applicant, if certain conditions were met, a right to have

the correct point of view published.  The proceedings at issue thus

concerned "the determination of (the applicant's) civil rights and

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

Convention.

      The period to be examined under Article 6 para. 1 (Art. 6-1)

commenced on 7 December 1987 when the applicant requested the judge in

summary proceedings of the District of Zurich to order the newspaper to

publish such a text.  The period ended on 4 June 1991 when the Federal

Court dismissed his appeal.  The period to be considered thus lasted

three years, five months and twenty-eight days.

      The Commission must examine whether the length of these proceedings

was "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1). It

considers that particular diligence is required in proceedings such as

in the present case aimed at rectifying allegedly incorrect statements

in a newspaper, where publication of a correction after many years would

hardly serve any useful purpose.

      The reasonableness of the length of proceedings has to be assessed

according to the particular circumstances of each case, having regard,

in particular, to the complexity of the case, the conduct of the

applicant and of the competent authorities, and to what is at stake for

the former.  In the present case, which concerns civil proceedings,

account must also be taken of whether the applicant has shown due

diligence by taking the necessary steps to expedite the proceedings and

whether delays occurred for which the applicant cannot be held

responsible (see Josef Müller AG v. Switzerland, Comm. Report 14.10.1991,

para. 75, to be published in D.R.).

      The Commission has applied these criteria to the present case.  It

considers at the outset that the proceedings, which concerned the

applicant's request to order the newspaper to publish his own, opposing

point of view, could not be regarded as complex.

      As regards the conduct of the applicant, the Commission considers

that no issue arises as to the length of the proceedings leading up to

the decision of the Zurich Court of Appeal on 18 February 1988, or after

the decision of the Zurich Court of Cassation of 16 October 1990.

Rather, the issue in the present case concerns the applicant's conduct

between these two dates, i.e. a period of two years and approximately

eight months when the case was pending before the Court of Cassation.

      The Commission notes that when filing his plea of nullity of

11 March 1988 the applicant also challenged various Court of Cassation

judges.  As that Court no longer had a sufficient number of judges to

decide on his challenge, the latter was referred to the Parliament of the

Canton of Zurich which dismissed it on 8 July 1988.  The applicant also

filed a public law appeal which the Federal Court dismissed on

27 October 1988.  On 5 May 1989 the Court of Cassation imposed advance

court costs on the applicant.  The applicant's objection against this

decision was dismissed by the Court of Cassation on 25 July 1989, his

public law appeal by the Federal Court on 19 April 1990.  The applicant

then paid the advance court costs on 3 May 1990, whereupon on

16 October 1990 the Court of Cassation dismissed his plea of nullity.

      In the Commission's opinion, the applicant himself thus contributed

to a large extent to the length of the proceedings before the Court of

Cassation, in particular by challenging a large number of judges, by

contesting the court costs, and by filing two public law appeals with the

Federal Court.

      The applicant was therefore himself mainly responsible for the

delays in the proceedings which are therefore not attributable to the

authorities concerned.

      This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para.  2 (Art. 27-2) of the Convention.

2.    Under Article 6 para. 1 (Art. 6-1) of the Convention the applicant

complains that before the Federal Court he did not have an oral hearing.

      The Commission notes that in the proceedings at issue a hearing was

conducted before the judge of the Zurich District.  While it is true that

no hearing was conducted before the Zurich Court of Appeal, the applicant

has not shown that in this respect he has exhausted domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention by filing

a public law appeal and obtaining a decision of the Federal Court on this

matter.

      The applicant has moreover not shown that he filed a request before

the Federal Court requesting an oral hearing.  An issue arises therefore

whether the applicant has waived his right under Article 6 para. 1

(Art. 6-1) of the Convention.

      The Commission need nevertheless not resolve this issue.  It notes

in particular that the proceedings at issue concerned mainly the

correctness of a newspaper article;  the applicant has not demonstrated

that the Federal Court could not determine the issues without a direct

assessment of the evidence given by the applicant and the opposing party.

      This part of the application is therefore also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    Under Article 6 para. 2 (Art. 6-2) of the Convention the applicant

further complains of a breach of the presumption of innocence in that the

newspaper was permitted to state that he had been sentenced to three

months' imprisonment, although that conviction had not yet become final.

      The Commission observes that the applicant does not dispute the

correctness of the statement of the newspaper article.  Moreover, it is

not a violation of Article 6 para. 2 (Art. 6-2) of the Convention if a

newspaper article merely reports that a particular court has sentenced

a person to a prison sentence but does not refer to possible pending

appeals which that person may subsequently have filed against the

sentence.  The Commission also notes that the article expressly referred

to the "provisional end" of the dispute.

      In any event, the Commission notes the Federal Court's decision of

4 June 1991 on this issue.  The Court found that the applicant had in

principle been entitled to have his own point of view published.

However, the statement prepared by him had also contained other incorrect

elements.

      This part of the application is therefore also manifestly ill-

founded within the meaning of Article 27 para.  2 (Art. 27-2) of the

Convention.

4.    The applicant finally complains under Article 6 para. 1 (Art. 6-1)

of the bias of the Federal Judges who summarily rejected his challenge

directed against 23 Federal Judges.  Under Article 13 (Art. 13) of the

Convention he complains that he did not have an effective remedy at his

disposal.

      The Commission has examined these complaints as they have been

submitted by him.  However, it does not find that they disclose any

appearance of a violation of the rights and freedoms set out in the

Convention.

      It follows that the remainder of the application is 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)