Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16712/90

by G.M., G.E. and

P.B.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 13 February 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs.J. LIDDY

Mr.M. PELLONPÄÄ

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 April 1990 by

G.M., G.E. and P.B. against Switzerland and registered on 13 June 1990

under file No. 16712/90;

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 first applicant, born in 1934, is an engineer residing in

Paris. The second applicant, born in 1941, is a businessman residing

in London. The third applicant, born in 1942, is a medical doctor

residing at Como in Italy. All applicants are Italian citizens. Before

the Commission the applicants are represented by Mr. G. Lüthi, a lawyer

practising in Samedan in Switzerland.

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

summarised as follows.

The Sud Provizel company, a stock corporation

(Aktiengesellschaft), was founded in 1971 by Swiss citizens; its

purpose was inter alia to acquire real property. The applicants bought

shares in the company and so obtained a proprietorial interest in the

houses acquired by the company. Eventually, they owned 91% of the

shares.

In 1983 the Federal Office of Justice (Bundesamt für Justiz)

informed the company that, contrary to a regulation of the Federal

Council of 1972 (Bundesratsbeschluss), it had obtained real property

in Switzerland with foreign monies without authorisation for which

reason the company was null and void (nichtig).

On 31 October 1983 the Federal Office of Justice introduced an

action with the Maloja District Court (Bezirksgericht), requesting

determination that the Sud Provizel company was null and void. On 29/30

June 1987 the parties agreed to bring the case before the Cantonal

Court (Kantonsgericht) of Graubünden. In these proceedings there were

two rounds of written submissions; both parties agreed not to have an

oral hearing.

On 14 July 1988 the Cantonal Court upheld the action. The Court

found that the Sud Provizel company was null and void, that it was to

be liquidated, and that the proceeds fell to the Canton of Graubünden.

In its decision the Court relied in particular on S.57 para. 3 of the

Swiss Civil Code of 1907 (Zivilgesetzbuch) according to which "if a

legal person is annulled by a court as it has pursued immoral or

illegal aims, the fortune falls to the municipality concerned, even if

it is stated otherwise" ("Wird eine juristische Person wegen Verfolgung

unsittlicher oder widerrechtlicher Zwecke gerichtlich aufgehoben, so

fällt das Vermögen an das Gemeinwesen, auch wenn etwas anderes bestimmt

worden ist").

The appeal of the Sud Provizel company (Berufung) was dismissed

by the Civil Division (Zivilabteilung) of the Federal Court

(Bundesgericht) on 13 October 1989. The Court found, inter alia, that

contrary to the company's view, S.57 para. 3 of the Swiss Civil Code

also applied to stock corporations, and had done so at the time of the

events concerned. The Court thereby referred to its own previous

published case-law.

COMPLAINTS

Under Article 7 of the Convention the applicants complain that

at the time when the real property was acquired there was no law

providing for the confiscation of the company. In fact the legal basis

therefor was only expressly established by a Federal Act on the

acquisition of property by foreigners in 1983; thus, previous to this

Act, S.57 para. 3 of the Swiss Civil Code had no independent

application. In the applicants' case therefore the 1983 Act was applied

retroactively.

Under Article 6 of the Convention the applicants complain that

in the proceedings before the Swiss courts they were never duly heard.

Under Article 1 of Protocol No. 1 the applicants complain of the

confiscation of their property. Under Article 14 of the Convention the

applicants complain that other foreigners in similar situations have

been treated differently and that stock corporations are treated

differently from private persons. The applicants also complain of a

breach of the 1868 Treaty between Switzerland and Italy on

establishment and consular relations.

THE LAW

1. The applicants raise various complaints about the confiscation

of their property under Articles 6, 7 and 14 (Art. 6, 7, 14) of the

Convention. The applicants also rely on Article 1 of Protocol No. 1

(P1-1), and a Treaty between Switzerland and Italy.

2. The Commission considers that the applicants, who were not

parties in the domestic proceedings, own 91% of the shares of the Sud

Provizel company. After the dissolution of the company they can

therefore claim to be victims of the measures complained of, within the

meaning of Article 25 (Art. 25) of the Convention.

3. The applicants complain under Article 1 of Protocol No.1 (P1-1)

of the confiscation of their property. However, Switzerland is not a

Party to Protocol No.1, and 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.

Insofar as the applicants complain of a breach of a Treaty

between Switzerland and Italy the Commission recalls that under Article

19 (Art. 19) of the Convention it is only called upon to examine

compliance with the undertakings of the High Contracting Parties under

the Convention. It follows that this part of the application is

incompatible ratione materiae within the meaning of Article 27 para.

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

4.The applicants complain under Article 7 (Art. 7) of the

Convention that at the time when the property was obtained there was

no law providing for confiscation.

However, even assuming that this provision, which concerns

criminal offences, is applicable in the present case, the Commission

notes that in its decision of 13 October 1989 the Federal Court stated

that S.57 of the Swiss Civil Code provided a sufficient and independent

legal basis for the confiscation at issue. The Commission considers

that the Federal Court, which thereby referred to its own previous

case-law, did not exceed the limits of a reasonable interpretation. It

follows that this part of the application is manifestly ill-founded

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

5. The applicants complain under Article 6 (Art. 6) of the

Convention that in the domestic proceedings they were not duly heard.

The Commission notes that the applicants have not shown that they

attempted to intervene in the proceedings before the Cantonal Court or

that they obtained a decision of the Federal Court on the complaint

they are now raising before the Commission. The Commission need

nevertheless not decide whether the applicants have complied with the

requirements as to the exhaustion of domestic remedies within the

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

complaint is in any event inadmissible for the following reasons.

The Commission considers that the company was represented by a

lawyer who before the Cantonal Court had sufficient opportunity to put

forward written submissions, and expressly waived an oral hearing. It

follows that this part of the application is manifestly ill-founded

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

6. Insofar as the applicants complain under Article 14 (Art. 14),

taken together with Articles 6 and 7 (Art. 6, 7) of the Convention,

inter alia of discrimination with regard to other foreigners, the

Commission again need not examine whether in this respect the

applicants have complied with the requirements as to the exhaustion of

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention. It considers that the applicants have not sufficiently

substantiated in what respect other situations to which they refer are

comparable to their own situation or that any difference of treatment

was based on any of the grounds of discrimination prohibited by Article

14 (Art. 14) of the Convention. It follows that the remainder of the

application is also manifestly ill-founded within the meaning of

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

For these reasons, the Commission, unanimously,

DECLARES THIS APPLICATION INADMISSIBLE.

Secretary to the First ChamberPresident of the First Chamber

(M. DE SALVIA) (J.A. FROWEIN)

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M., E. AND B. v. SWITZERLAND

M., E. AND B. v. SWITZERLAND

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