Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14090/88

by K.

against Switzerland

The European Commission of Human Rights sitting in private

on 14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 29 December

1983 by K. against Switzerland and registered on 2 August 1988 under

file No. 14090/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Dutch citizen born in 1929, is an engineer

resident in Kirchdorf in Switzerland. His previous applications

Nos. 10807/84 and 14268/88, which the Commission declared inadmissible

on 4 December 1984 and 14 October 1988, respectively, do not relate to

the present case.

The facts submitted in this case may be summarised as follows.

Mr Sch., the applicant's neighbour, was regularly engaged on

his premises in sawing and other woodwork. In 1980 the applicant

complained to the municipal council (Gemeinderat) of Obersiggenthal

about noise nuisance. The latter then ordered Sch. to use noisy

machines only during working hours and not before 8 a.m. on Saturdays.

The applicant appealed against this order to the Aargau

Building Department (Baudepartement) and eventually to the Aargau

Administrative Court (Verwaltungsgericht). In the ensuing proceedings

Sch. was represented by the lawyer W.

On 25 March 1982 the Administrative Court partly upheld the

applicant's appeal to the extent that Sch. was permitted to use the

power saw and other machines only from Monday to Friday between

9 and 11 a.m. and between 3 and 5 p.m. The Court thereby stated that

it had the competence to examine freely issues of fact, law and

discretion.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht) in which he

complained that the Administrative Court had not considered various

legal provisions or had misinterpreted the facts. In the ensuing

proceedings, the President of the competent chamber of the Aargau

Administrative Court wrote to the Federal Court on 3 September 1982

that the Administrative Court had examined the applicant's case

freely.

The Federal Court dismissed the public law appeal on 29 June

1983, stating inter alia that the Administrative Court's decision was

not arbitrary.

On 29 October 1983 the applicant requested the Federal Court

to reopen the proceedings. He submitted that after its decision of

29 June 1983 he had learned that W., the lawyer of Sch., was also a

substitute judge at the Aargau Administrative Court. The applicant

further complained that the Administrative Court had not freely

examined all issues. The Federal Court dismissed the request on

16 January 1984 stating that the applicant could have raised the

complaints in his previous public law appeal.

The applicant then requested the Aargau Administrative Court

to reopen the proceedings, inter alia on account of the position of

W. In these proceedings, the Court apparently extended in view of

holidays a time-limit granted to Sch. to reply to the request.

On 31 December 1984 the Administrative Court dismissed the

applicant's request. The Court found that a problem could arise if

ordinary judges also acted as lawyers in the proceedings before the

same court, since links might be established among the judges of the

bench and the impression could arise that certain cases were being

privileged. In the Court's opinion, the situation was different in

the case of part-time, rather than full-time, substitute judges, such

as W., who were only called to sit on certain cases if ordinary judges

were prevented from doing so, or if the substitute judge had

specialised knowledge. The latter were truly "substitute", and no

problem of personal links arose here. In fact, it would not be

possible to find sufficient legally trained persons as substitute

judges, if they were not permitted to act as lawyers. The Court also

pointed out that substitute judges acted in other cases as lawyers

also before the Aargau Court of Appeal (Obergericht) and the Federal

Court.

The applicant then unsuccessfully complained to the Aargau

Parliament (Grosser Rat) about the Administrative Court and the Court

of Appeal.

COMPLAINTS

The applicant complains that the Aargau Administrative Court

did not on 25 March 1982 freely decide on all issues raised by him.

He refers inter alia to the letter of the President of the Aargau

Administrative Court of 3 September 1982. He further complains that

W., the legal representative of Sch., was also a substitute judge at

the Administrative Court which was not therefore impartial. He relies

in this respect on Article 6 para. 1 of the Convention.

The applicant also generally complains of the various

decisions. He alleges an unequal extension of the time-limits in

favour of the opposing party and that he has been discriminated

against as a foreigner. He complains of the imposition of

certain court costs and generally of the manner in which the

authorities have dealt with his case. He invokes Articles 4, 6, 8,

10, 13, 14 and 17 of the Convention.

THE LAW

1. The applicant complains of the decisions of the Aargau

Administrative Court and the Federal Court and of the proceedings

before the Administrative Court. He relies in particular on Article 6

para. 1 (Art. 6-1) which states in its first sentence:

"In the determination of his civil rights and obligations

or 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."

With regard to the decisions of which the applicant complains,

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 an application 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. The Commission refers, on this point, to its established

case-law (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 in this case the applicant also complains

under Article 6 para. 1 (Art. 6-1) that the Aargau Administrative

Court, in its decision of 25 March 1982, did not decide freely on all

the issues raised by the applicant before that Court.

However, the Commission notes that the Administrative Court

expressly stated in its decision of 25 March 1982 that it had the

competence to examine freely issues of fact, law and discretion in the

applicant's case. This was subsequently confirmed by the President of

the Court in his letter of 3 September 1982 to the Federal Court. The

Commission therefore finds no issue here under Article 6 para. 1 (Art.

6-1) of the Convention.

The applicant further complains that W., the legal

representative of Sch., was also a substitute judge at the Aargau

Administrative Court which was not therefore impartial within the

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

The Commission notes that the applicant did not file a new

public law appeal against the decision of the Aargau Administrative

Court of 31 December 1984. The Commission need nevertheless not

resolve whether the applicant has complied with the condition as to

the exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention, since this part of the application is in

any event manifestly ill-founded for the following reason.

In examining a complaint of partiality, the Commission must

consider the function exercised by the person in question and the

internal organisation of the court. In this respect, even appearances

may be important. What is at stake is the confidence which the courts

must inspire in the public. The test to be applied is whether as a

result of the particular fact the impartiality of the Court is capable

of appearing open to doubt (see Eur. Court H.R., Piersack judgment of

1 October 1982, Series A No. 53, p. 14 para. 30).

In the present case the Aargau Administrative Court drew a

distinction in its decision of 31 December 1984 between ordinary and

substitute judges and, with regard to the latter, between full-time

and part-time substitute judges. The Court found that its

impartiality could in fact be called in question if one of the

ordinary judges acted as a legal representative of one of the

parties. However, part-time substitute judges, such as W., were truly

substitute in that they were only called in for certain cases and no

personal links would arise with other judges on the bench.

In these circumstances the Commission considers that the

impartiality of the Aargau Administrative Court cannot be called in

doubt. It follows that the applicant's complaint 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 Commission concludes that

in this respect the application is manifestly ill-founded within the

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

2. The applicant also complains, apparently under Article 14

(Art. 14) taken together with Article 6 (Art. 6) of the Convention, of

the allegedly unfair extension of time-limits in favour of the

opposing party; he submits that in the proceedings at issue he was

discriminated against as a foreigner. He further complains under

Articles 4, 8, 10, 13, 14 and 17 (Art. 4, 8, 10, 13, 14, 17) of the

manner in which the authorities dealt with his case.

The Commission has examined the remainder of the applicant's

complaints as they have been submitted by him. However, after

considering these complaints as a whole, the Commission finds that

they do not 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 also

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

27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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K. v. SWITZERLAND

K. v. SWITZERLAND

LEXI