Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17722/91

by S.

against Switzerland

The European Commission of Human Rights sitting in private

on 8 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 October 1990

by S. against Switzerland and registered

on 24 January 1991 under file No. 17722/91;

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 1918, is a doctor

residing at U. in Switzerland.

I. Particular circumstances of the case

In 1985 the Bözberg Agricultural Consumers' Cooperative (Land-

wirtschaftliche Konsumgenossenschaft) decided to enter liquidation.

A loss of approximately 100,000 SFr. was calculated, entailing the

obligation for each cooperative member to pay a supplementary

contribution (Nachschusspflicht) of 1500 SFr.

The issue arose whether the applicant was a member of the

Cooperative and therefore obliged to pay. The applicant disputed this

whereupon the Cooperative instituted proceedings requesting execution

(Betreibung) of its claim against the applicant to the amount of 1500

SFr. The applicant objected thereto. The Cooperative then requested

the Brugg District Court (Bezirksgericht) provisionally to proceed

with the execution (provisorische Rechtsöffnung; see below, Relevant

domestic law).

On 20 March 1987 the President of the Brugg District Court

decided in summary proceedings provisionally to grant the execution.

The applicant then filed an appeal. On 29 September 1987 the Aargau

Court of Appeal upheld the appeal and dismissed the request to proceed

with the execution.

In 1988 the Cooperative introduced an action against the

applicant before the Brugg District Court for payment of 1500 SFr. In

the ensuing proceedings the applicant complained that the President of

the Brugg District Court lacked impartiality as he had previously

decided on the Cooperative's provisional request to proceed with the

execution.

In his decision of 5 December 1988 the President of the Brugg

District Court upheld the action. With regard to the applicant's

complaint about the lack of impartiality of the Brugg District Court

President, the decision noted that according to constant case-law

there was no obligation for a judge to step down if he had first dealt

with a matter in summary execution proceedings and later as a single

judge in ordinary proceedings.

The applicant's appeal against this decision was dismissed by

the Aargau Court of Appeal on 25 September 1989.

On 12 March 1990 the Federal Court (Bundesgericht) declared

the applicant's public law appeal (staatsrechtliche Beschwerde) in

part inadmissible, in part it dismissed the appeal as being unfounded.

The Federal Court sent the decision out on 29 March 1990; according to

a statement of the Unterbözberg post office the applicant received it

on 6 April 1990.

With regard to the impartiality of the District Court judge

the Federal Court found:

"He furthermore insists that the District Court President

was partial. The contested decision states that the mere

circumstance that the Court President also acted as a judge

in the execution proceedings does not according to the

cantonal procedure constitute a ground to step down. The

applicant does not discuss this reasoning and he does

not mention any other relevant ground indicating

partiality."

"Sodann hält er an der Befangenheit des

Bezirksgerichtspräsidenten fest. Nach dem angefochtenen

Entscheid stellt allein der Umstand, dass der

Gerichtspräsident auch als Rechtsöffnungsrichter gewirkt

hat, gemäss der kantonalen Prozessordnung keinen

Ausstandsgrund dar. Der Beschwerdeführer setzt sich mit

dieser Begründung nicht auseinander und tut auch sonst

keinen stichhaltigen Grund für eine Befangenheit dar."

With regard to the supplementary contribution the Court found

that it was not arbitrary to assume that the applicant had originally

been sufficiently informed of this obligation.

II. Relevant domestic law

According to the Swiss Code of Execution and Bankruptcy

(Schuldbetreibungs- und Konkursgesetz) a creditor wishing execution of

a claim must file an execution request (Betreibungsbegehren, Section

67 of the Code). Thereupon, a payment order (Zahlungsbefehl) is

issued. If the debtor raises an objection (Rechtsvorschlag), the

execution is in principle terminated and the creditor must institute

regular court proceedings (Section 79).

Nevertheless, if upon the debtor's objection the creditor can

substantiate his claim with a judicial decision, he may request the

court to cancel the objection and to proceed with the execution

(Rechtsöffnungsbegehren, Section 80). This request is normally dealt

with in summary proceedings; the judge must decide after hearing the

parties and within five days after the creditor has filed his request

(Section 84). The parties do not have all regular means of application

and defence.

If the claim is only based on an official document

(öffentliche Urkunde) or can be substantiated by a signed statement of

the debtor, the creditor may request the provisional execution

(provisorisches Rechtsöffnungsbegehren, Section 82).

Once provisional execution has been granted, the creditor

may request the provisional impounding (provisorische Pfändung) of

the debtor's fortune. The debtor, on the other hand, may within ten

days introduce court proceedings in which he requests the claim to be

disallowed (Aberkennung; Section 83). If the debtor fails to do so,

the execution becomes definitive. The debtor who then pays the claim

still has the possibility within one year to institute court

proceedings to reclaim the payment (Rückforderungsklage, Section 86).

COMPLAINTS

The applicant complains that the President of the Brugg

District Court lacked impartiality as he first decided on the

Cooperative's request to grant execution, and later on the

Cooperative's action. The applicant further complains that the Federal

Court refused to prolong the time-limit for filing his public law

appeal although he was suffering from the results of a car accident.

The applicant also appears to complain about the obligation to

pay the supplementary contribution. He relies on Article 6 of the

Convention.

THE LAW

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

Convention of the various proceedings and the ensuing decisions.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with applications alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,

236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that the applicant also complains under Article 6

(Art. 6) of the Convention of the alleged lack of impartiality of the

District Court judge and that he was not given sufficient time for

preparing his public law appeal statement.

Article 6 para. 1 (Art. 6-1) of the Convention states insofar

as it is relevant:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

As regards the applicant's complaint about the alleged lack

of impartiality of the District Court judge, the Commission recalls

that the existence of impartiality 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 also according to an objective

test, that is by ascertaining whether the judge offered guarantees

sufficient to exclude any legitimate doubts in this respect (see,

amongst other authorities, Eur. Court H.R., De Cubber judgment of 26

October 1984, Series A No. 86, pp. 13-14, para. 24).

As to the subjective test, the personal impartiality of a

judge must be presumed until there is a proof to the contrary. The

applicant has in no way shown that the judge concerned acted with

personal bias.

Under the objective test, it must be determined whether,

apart from the judge's personal conduct, there are ascertainable facts

which may raise doubts as to his impartiality. In this respect even

appearances may be of a certain importance. What is at stake is the

confidence which the courts in a democratic society must inspire in

the public and above all in the parties to the proceedings.

Accordingly, any judge in respect of whom there is a legitimate reason

to fear lack of impartiality must withdraw (cf. De Cubber judgment,

loc. cit., p. 14, para. 26).

This implies that in deciding whether in a given case there is

a legitimate reason to fear that a particular judge lacks

impartiality, the view of the complaining party is important but not

decisive. What is decisive is whether this fear can be said to be

objectively justified.

In the present case, the fear of lack of impartiality was

based on the fact that the District Court judge who decided on the

action introduced by the Cooperative against the applicant had

previously decided in the summary proceedings on the Cooperative's

request to grant execution.

This kind of situation may occasion misgivings on the part of

a party as to the impartiality of a judge, misgivings which are

understandable but which nevertheless cannot necessarily be treated as

objectively justified. Whether they should be so treated depends on

the circumstances of each particular case.

In the present case, the Commission observes that the District

Court judge was first called upon to examine whether the Cooperative

could provide sufficient substantiation in order to grant provisional

execution (see above, Relevant domestic law). Moreover, the

decision had to be given within five days after the request had been

filed. The judge thus only undertook a summary and formal assessment

of the available material. This examination was different from the

subsequent full examination of the well-foundedness of the

Cooperative's action in the regular court proceedings by the District

Court judge.

The provisional nature of the summary proceedings is in the

Commission's view further emphasised by the fact that, if provisional

execution is granted, the debtor has the possibility within ten days

to institute ordinary court proceedings in which he may request the

claim to be disallowed. If these proceedings fail and his fortune is

impounded, he again has the possibility within one year to institute

court proceedings in which he may reclaim the payment made.

In the Commission's opinion the mere fact that a judge has

first summarily and provisionally determined a request for execution

and later decides on a subsequent action raising the same issue

cannot in itself justify fears as to his impartiality.

The Commission is therefore of the view that in the

circumstances of the case the role of the judge was not capable of

giving rise to doubt as to his impartiality and that the applicant's

fear cannot be considered to be objectively justified.

With regard to the contention that the applicant had

insufficient time to prepare his public law appeal statement, as he

was suffering from the results of a car accident, the Commission

considers that Article 6 para. 3 (b) (Art. 6-3-b) of the Convention

guarantees to a person charged with a criminal offence the right to

have adequate time and facilities to prepare his defence. However,

such a right may also be inherent in Article 6 para. 1 (Art. 6-1) of

the Convention which guarantees a fair and public hearing in the

determination of a person's civil rights and obligations.

Nevertheless, in the present case, the Commission considers that the

applicant has not sufficiently substantiated the degree and possible

effects of his injuries.

As a result, the application must be declared inadmissible as

being 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S. v. SWITZERLAND

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