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ANKERL v. SWITZERLANDDISSENTING OPINION OF Mr. L. LOUCAIDES,

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Document date: May 24, 1995

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ANKERL v. SWITZERLANDDISSENTING OPINION OF Mr. L. LOUCAIDES,

Doc ref: • ECHR ID:

Document date: May 24, 1995

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DISSENTING OPINION OF Mr. L. LOUCAIDES,

JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS,

M.A. NOWICKI, J. MUCHA, D. SVÁBY

I regret but I am unable to agree with the conclusion of the

majority of the Commission that there has been no violation of

Article 6 para. 1 of the Convention.

The issue before the Geneva First Instance Court was whether a

lease contract had existed between the parties. L., the administrator

of the building, contested this, claiming that he was not competent to

conclude a contract. The applicant, on the other hand, claimed that

the administrative company had intended to conclude a lease contract

with him and that the outcome of the meeting on 22 April 1988 supported

his belief that such a contract had existed by virtue of an oral

agreement, and that he could remain in the apartment.

Three persons had been present at the meeting of 22 April 1988,

namely the applicant, his wife, and L. Thus, when attempting to

reconstruct the content of the meeting of 22 April 1988 before the

Geneva First Instance Court, the applicant placed importance on the

statement of his wife as she was the only witness who could confirm his

allegation that an oral agreement had indeed been concluded.

At the hearing, the Geneva First Instance Court, when aiming to

determine the content of the meeting of 22 April 1988, heard L., the

applicant and his wife. Only L. was sworn as a witness under oath, not

the applicant's wife.

The Geneva First Instance Court found that no written or oral

contract had been concluded between the parties. It is true that the

Court did not rely on the statement of any particular person who had

testified at the hearing. Nevertheless, given that only three persons

had been present at the meeting of 22 April 1988, the Court must have

relied on L.'s statement rather than the applicant's view, as confirmed

by his wife.

The Federal Court found that the statement of the applicant's

wife had no probative value ("sans valeur probante"). The Federal

Court thus expressly confirmed that there was a formal difference in

the quality of evidence given by L. as opposed to the statement given

by the applicant's wife.

The applicant's wife was prevented by law from making a statement

as a witness under oath. Thus, Section 225 para. 1 on the Geneva Code

of Civil Procedure expressly states that the spouse of one of the

parties cannot be heard as a witness.

According to the Convention organs' case-law, importance must be

"attached to appearances and to the increased sensitivity of the public

to the fair administration of justice" (Eur. Court H.H., Borgers

judgment of 30 October 1991, Series A No.214-B, p. 31, para. 24).

It is not up for the Convention organs to indicate those means

to States which will ensure that their legal systems are in compliance

with the requirements of a fair hearing under Article 6 para. 1 of the

Convention (see Eur. Court H.R., Colozza judgment of 12 February 1985,

Series A no. 89, p. 15 et seq. para. 30). It suffices to point out

that in the proceedings before the Geneva courts the applicant was both

formally and in fact placed at a disadvantage since L. could make a

statement as a witness under oath whereas the applicant's wife could

not. Moreover, the testimony of the applicant's wife was treated to

be of no probative value by virtue only of her husband/wife status.

The testimony of a husband/wife in respect of a case involving the

spouse may be approached with caution but should not, in my opinion,

be rejected from the outset merely because of this status.

In my opinion the applicant was placed at a substantial

disadvantage vis-à-vis his opponent and, consequently, the requirement

of equality of arms has not been respected. Thus, the applicant did

not have a fair hearing within the meaning of Article 6 para. 1 of the

Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

10 December 1990 Introduction of application

4 February 1991 Registration of application

Examination of admissibility

31 March 1993 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

8 June 1993 Government's observations

10 July 1993 Applicant's observations in reply

5 July 1994 Commission's decision to declare

application admissible

Examination of the merits

2 August 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

7 October 1994 Applicant's observations

17 October 1994 Government's observations

7 December 1994 Commission's consideration of state of

and 11 April 1995 proceedings and decision not to apply

Article 29 of the Convention

17 May 1995 Commission's deliberations on the merits,

final votes and consideration of text of

the Report

24 May 1995 Adoption of Report

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