Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13467/87

by J.

against Switzerland

The European Commission of Human Rights sitting in private

on 10 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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

27 November 1987 by J. against Switzerland and registered

on 16 December 1987 under file No. 13467/87;

Having regard to

- the observations submitted by the respondent Government

on 19 July 1988 and the observations in reply submitted

by the applicant on 4 and 25 October 1988;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant, a Swiss citizen born in 1942, is a restaurant

proprietor resident in Herisau/Canton Appenzell Ausserrhoden (A.Rh.)

in Switzerland. Before the Commission he is represented by Dr. F. Oesch,

a lawyer practising in St. Gallen.

A. PARTICULAR CIRCUMSTANCES OF THE CASE&S

I.

On 14 November 1985 the District Police Office (Verhöramt) of

Canton Appenzell A.Rh. at Trogen imposed a fine of 400.-Sfr on the

applicant on the ground that he had employed foreign musicians in his

restaurant without a sufficient work permit. He had therefore

contravened Article 3 para. 3 of the Federal Act on the presence and

residence of aliens (Bundegesetz über den Aufenthalt und die

Niederlassung der Ausländer, the Aliens' Act). In particular, he had

hired a music group consisting of five Austrian musicans. When two

musicians eventually cancelled their trip, the band leader hired two

further musicians, a fact which the applicant did not notify to the

Aliens' Police.

The applicant filed an objection (Widerspruch) against this

fine whereupon on 12 March 1986 the Cantonal Court (Kantonsgericht) of

Appenzell A.Rh. acquitted him of having contravened the Aliens' Act.

The Court found, inter alia, that the applicant had not acted

undiligently by not controlling in detail the identity of all

musicians upon their arrival, and that in the case of very light

culpability the Aliens' Act did not require a conviction.

II.

The Public Prosecutor's Office appealed against this decision

to the Appenzell A.Rh. Court of Appeal (Obergericht). The trial took

place on 1 July 1986. Contrary to the usual practice, the Court did

not pass judgment on the same day. According to the reasons of its

subsequent decision of 18 November 1986 the Court then found it

necessary to call for some supplementary reports.

Thus, on 8 July 1986 the Appenzell A.Rh. Court of Appeal filed

requests for information to the Aliens' Police of Appenzell A.Rh. and

the Secretariat of a company organising the employment of musicians

(Schweizerischer paritätischer Facharbeiternachweis für Musiker). The

replies thereto were submitted to the Court on 11 and 14 July 1986,

respectively. Upon a further request of the Court of 21 October 1986,

the Secretariat organising the employment of musicians submitted

additional information on 22 October 1986.

On 18 November 1986 the Court of Appeal gave its decision.

In the operative part of this decision, it found that the applicant had

negligently contravened (fahrlässige Zuwiderhandlung) Article 3

para. 3 of the Aliens' Act, and it imposed a fine of 400.-Sfr on him.

The applicant was also ordered to pay the costs of the first and

second instance proceedings.

The operative part of the decision was served in writing on

the applicant on 19 November 1986 and received by his lawyer on

21 November 1986. This decision contained at the end a printed

note that a Federal plea of nullity (Eidgenössische Nichtigkeits-

beschwerde) could be filed against this decision with the Federal

Court (Bundesgericht).

The applicant announced by letter of 27 November 1986 to the

Court of Appeal that he would file a plea of nullity, though he later

failed to submit the substantiation therefor.

On 30 April 1987 the Court of Appeal served the written

reasons of its decision of 18 November 1986. The Court referred in

particular to the second report of 22 October 1986 of the Secretariat

of the company organising the employment of musicians. Therein it was

stated that the applicant had paid the salary for all musicians to the

band leader, and had also arranged social security matters for them.

The Secretariat concluded in its report that the present case

constituted procurement of labour (Arbeitsvermittlung). The Court

further referred to the report of the Aliens' Police according to

which the Secretariat of the company had submitted with the Aliens'

police upon the applicant's instruction an application for a work

permit for the musicians on 2 September 1985.

The Court of Appeal found that an opportunity for commenting

on these supplementary reports need not be granted to the applicant

since they concerned issues of which he was well aware (zur Genüge

bekannt). In particular, he knew that he had to settle social

security matters with the competent office, and that the Secretariat

of the company concerned had upon his instructions applied for a work

permit. As an employer he had also been aware for many years of the

distinction between the procurement of labour and the hiring out of

labour (Personalverleih).

The Court of Appeal then discussed whether the applicant could

be regarded as being an employer within the meaning of the Aliens'

Act. It found that the present case qualified as procurement of

labour since it was the applicant who had paid the salary to the

musicians and dealt with the social security matters. Accordingly,

the applicant had to be regarded as an employer. By not controlling

whether the musicians were in fact the persons in respect of whom he

had been granted a work permit, he had contravened the Aliens' Act.

The Court of Appeal concluded that the applicant's culpability

was not particularly serious, though he had already been fined for

contravening the Aliens' Act on three previous occasions. The Court

thus considered a fine of 400.-Sfr as being appropriate.

III.

On 26 May 1987 the applicant filed a public law appeal (staats-

rechtliche Beschwerde) with the Federal Court against this decision.

Therein he complained of a breach of his right to a fair hearing

(Verletzung des rechtlichen Gehörs) as guaranteed by Article 4 of the

Swiss Constitution. He alleged in particular that the Appenzell A.Rh.

Court of Appeal had relied for his conviction on reports submitted

after the trial on which he had not been able to comment.

On 22 September 1987 the Federal Court rejected the

applicant's appeal as being inadmissible. The Court found in

particular that the public law appeal had not been filed within 30

days after the date which was relevant under cantonal law in this

respect. The Federal Court recalled that if cantonal law provided

that the reasons of a decision were in each case automatically (von

Amtes wegen) served, without further request, the time-limit commenced

once the reasons were served. However, in Appenzell A.Rh. the

cantonal law provided that the relevant date for the serving of a

decision in the case of a criminal conviction was the date when the

operative part of the decision was served. The reasons for the

decision were served only upon request, not automatically. The

Federal Court also noted that this practice was applied consistently

by the cantonal authorities. Thus, the public law appeal should have

been filed within 30 days after the operative part of the decision had

been served, i.e. on 19 November 1987.

B. RELEVANT DOMESTIC LAW AND PRACTICE&S

The applicant could contest the decision of the Appenzell

A.Rh. Court of Appeal before the Federal Court by means of two

remedies which can be filed simultaneously, namely the plea of nullity

and the public law appeal.

According to Article 269 para. 1 of the Federal Code of

Criminal Procedure (Bundesstrafprozessordnung) the plea of nullity can

be employed to complain of a violation of Federal law. Article 269

para. 2 reserves the public law appeal for complaints about the

violation of constitutional rights (verfassungsmässige Rechte).

As regards the public law appeal, Article 84 para. 1(a) of the

Federal Judiciary Act (Organisationsgesetz) states that it can be

directed inter alia against cantonal court decisions on the grounds of

a violation of constitutional rights of citizens.

According to Article 89 para. 1 of the Federal Judiciary Act,

a public law appeal must be filed within 30 days as from the date

which is relevant under cantonal law for the pronouncement or serving

of the decision.

In this respect, the relevant cantonal law, namely Article 174

para. 1 of the Appenzell A.Rh. Code of Criminal Procedure, states that

the operative part of a decision may be pronounced orally and is

subsequently served in writing. According to Article 175 para. 1, the

entire decision containing also the reasons is served in writing upon

request.

With regard to a public law appeal, Article 35 para. 1 of the

Federal Judiciary Act provides for the reinstitution (Wiederherstellung)

of a time-limit, if the latter has lapsed on account of an impediment

on the part of the applicant for which he cannot be made responsible

(unverschuldet) and which prevented him from acting within the

time-limit. In this case the request for reinstitution must be filed

within ten days after the impediment has ceased.

In this context the Government refer to an unpublished

decision of the Federal Court of 2 November 1984 in the case of R. v.

the Appenzell A.Rh. Public Prosecutor's Office and Court of Appeal.

Therein, R.'s lawyer contested a decision of the Appenzell A.Rh. Court

of Appeal of 29 May 1984, the reasons of which were served on 5 June

1984. When the lawyer filed his public law appeal on 6 July 1984 the

Federal Court declared it as being out of time as it should have been

filed within 30 days after the operative part of the decision had been

served, since this was the relevant date under Appenzell A.Rh.

cantonal law.

The Federal Court pointed out that the applicant was free

immediately to file a public law appeal and thereafter, upon receipt of

the written reasons, to request leave to supplement the public law

appeal, which the Federal Court would grant in such cases.

The Federal Court then dealt independently with R.'s request

for reinstitution of the time-limit according to Article 35 of the

Federal Judiciary Act. Insofar as R. maintained that a secretary

had made a mistake in respect of the time-limit, the Federal Court

found that this did not constitute a mistake for which the applicant

could not be made responsible within the meaning of Article 35 of the

Federal Judiciary Act.

COMPLAINTS

The applicant complains that the Appenzell A.Rh. Court of

Appeal based its conviction on supplementary reports submitted after

the trial. He submits that he knew nothing of these reports and was

not invited to comment thereupon. He was only informed of the

contents in particular of the documents of 11 and 14 July and

22 October 1986 in the proceedings before the Commission. It was

incorrect of the Court of Appeal to state that he had been aware

of the issues.

The applicant submits that he has not been given a fair

hearing within the meaning of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 November 1987 and

registered on 16 December 1987.

On 7 May 1988 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to

submit observations on its admissibility and merits, pursuant to Rule

42 para. 2 (b) of the Rules of Procedure.

The respondent Government's observations were submitted on

19 July 1988 and the reply thereto by the applicant on 4 and

25 October 1988.

THE LAW

1. The applicant complains that the Appenzell A.Rh. Court of

Appeal convicted him on the basis of supplementary reports of which he

was unaware and upon which he could not comment. He relies on Article

6 para. 1 (Art. 6-1) of the Convention which states insofar as it is relevant:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law".

2. In respect of the conditions under Article 26 (Art. 26) of the

Convention in particular as to the exhaustion of domestic remedies,

the applicant contends that, if the time-limit of 30 days for filing a

public law appeal commences already when the operative part of the

decision is served, this in effect deprived him of the possibility of

filing a remedy.

The applicant further submits that the Federal Court's

judgment in the case of R. of 2 November 1984 demonstrates that the

Court is strict in the application of Article 35 of the Federal

Judiciary Act (see above RELEVANT DOMESTIC LAW AND PRACTICE). The

judgment, which concerned the mistake of a secretary, further

demonstrates that the special situation in Appenzell A.Rh. as to the

necessity of filing a public law appeal before the reasons of the

decision are known does not suffice for the Federal Court to apply

Article 35.

The Government rely on the judgment of the Federal Court of

2 November 1984 in the R. case and contend that the application is

inadmissible for non-exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention, as the applicant

filed his public law appeal with the Federal Court out of time. Thus,

according to the constant practice of the Federal Court he should

have filed his public law appeal within thirty days after receiving

the operative part of the judgment.

The Government further submit that the applicant failed to request

reinstitution of the time-limit according to the Federal Judiciary Act.

Therein he could have claimed that he was prevented through no fault

of his own from acting within the time-limit set.

Under Article 26 (Art. 26) of the Convention the Commission

may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of

international law. However, Article 26 (Art. 26) of the Convention

does not require a person to pursue ineffective remedies offering no

prospects of success (see No. 7308/75, Dec. 12.10.78, D.R. 16 p. 32).

The Commission has first examined the Government's submissions

according to which the applicant did not observe the procedural

requirements for filing a public law appeal. In this respect, the

Commission recalls its constant case-law according to which there is

no exhaustion of domestic remedies where a domestic appeal is not

admitted because of a procedural mistake (see No. 6878/75, Dec.

6.10.76, D.R. 6 p. 79).

In the present case the Commission notes that the Federal

Court on 22 September 1987 declared the applicant's public law appeal

inadmissible as being out of time since it had not been filed within

thirty days after the operative part of the decision of the Appenzell

A.Rh. Court of Appeal of 18 November 1986 had been served.

The Commission observes that when the applicant was served the

operative part of the decision there was no indication of the violation of

Article 6 para. 1 (Art. 6-1) of the Convention which he now alleges before the

Commission. The operative part only stated the offence of which the applicant

was convicted and the costs he had to pay.

Only five months later, on 30 April 1987 when the reasons of

the decision of the Court of Appeal were served, did the applicant

become aware of the fact that the Court relied for his conviction on

documents on which he had not been able to comment beforehand.

The Commission considers that the applicant could not be expected,

under Article 26 (Art. 26) of the Convention, to employ a remedy at a stage

when he was unaware of the violation of the Convention which he now alleges

before the Commission.

Thus, under the specific circumstances of the present case the

Commission considers that the remedy employed by the applicant cannot

be regarded as being effective. The present application therefore

discloses the existence of special circumstances that absolve the

applicant according to the generally recognised rules of international

law from complying with the time-limit of the domestic remedy

concerned.

The Government further submit that the applicant should have

filed a request with the Federal Court according to Article 35 of the

Federal Judiciary Act for the reinstitution of the time-limit.

In the Commission's opinion it transpires from the decision of

the Federal Court of 2 November 1984 in the R. case that it first

considered that in such cases the public law appeal should always be

filed when the operative part of the decision has been served. Only

thereafter and on other grounds did the Federal Court examine and

eventually reject that applicant's request for reinstitution of the

time-limit.

The Commission is therefore not satisfied that the grounds for

the present applicant's failure to comply with the time-limit would

have sufficed for the Federal Court to grant reinstitution of the

time-limit according to Article 35 of the Federal Judiciary Act. The

Commission therefore finds that in the circumstances of the present

case such a request would not have constituted an effective remedy

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

The application cannot therefore be rejected under Article 26

(Art. 26) of the Convention for non-exhaustion of domestic remedies.

3. As regards compliance with the time-limit of six months as

required by Article 26 (Art. 26) of the Convention, the Commission notes that

the applicant filed his application with the Commission on 27 November

1987, that is within six months after the Federal Court decided on

22 September 1987 to reject his public law appeal. In the

circumstances of the present case the applicant cannot in the

Commission's opinion be made responsible for the fact that the remedy

which he employed was not an effective one within the meaning of

Article 26 (Art. 26) of the Convention.

The Commission is therefore satisfied that in respect of the

time-limit of six months the applicant has complied with Article 26

(Art. 26) of the Convention.

4. The Commission considers that the applicant's complaints under

Article 6 para. 1 (Art. 6-1) of the Convention raise complex issues of

fact and law which can only be resolved by an examination of the

merits. The application cannot, therefore, be declared manifestly

ill-founded. No other grounds for inadmissibility have been

established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE.

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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J. v. SWITZERLAND

J. v. SWITZERLAND

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