Information Note on the Court’s case-law 31

June 2001

F.R. v. Switzerland - 37292/97

Judgment 28.6.2001 [Section II]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Adversarial trial

Absence of opportunity to respond to opinion submitted to the Federal Insurance Court by the Administrative Court: violation

Facts : The cantonal Compensation Office brought proceedings against the applicant in the Administrat ive Court for compensation in respect of losses sustained following the bankruptcy of a company. The applicant lodged an administrative law appeal to the Federal Insurance Court, which obtained the opinion of the Administrative Court. The applicant claimed that this opinion raised new points and submitted observations on these. However, the Federal Insurance Court refused to take these observations into account, although it observed that the opinion did not raise new points and was not relevant.

Law : Articl e 6 § 1 – Although the applicant was not permitted to reply to the Administrative Court's opinion, the court is an independent tribunal which cannot be regarded as the applicant's opponent in the proceedings, and there has thus been no infringement of equa lity of arms. Nevertheless, the opinion expressly called for the administrative law appeal to be dismissed and the actual effect on the judgment of the Federal Insurance Court is of little consequence. The opinion came from an independent tribunal which ha d a thorough knowledge of the file and it is unlikely that the Federal Court would have paid them no heed. In fact, in certain respects it relied on the opinion. It was therefore all the more necessary to give the applicant an opportunity to comment on it. While the applicant did in fact submit a reply which the Federal Court commented on in its judgment, the judgment explicitly and unequivocally stated that the applicant’s unsolicited observations could not be legally considered. Indeed, the Federal Court found it unnecessary to consider the reply, as the opinion submitted by the lower court contained no new factual or legal points. However, parties should be given the possibility to state their views as to whether this is the case and whether or not a docu ment calls for their comments. Respect for the right to a fair trial required that the applicant be given the opportunity to comment on the opinion.

Conclusion : violation (unanimously).

Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage. It made an award in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summa ry by the Registry does not bind the Court.

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