AS TO THE ADMISSIBILITY OF
Application No. 20765/92
by Toyi Cyprien BATALI
against Switzerland
The European Commission of Human Rights sitting in private on
9 January 1995, the following members being present:
MM. H. DANELIUS, Acting President
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
Mrs.J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
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 1 August 1992 by
Toyi Cyprien Batali against Switzerland and registered on
5 October 1992 under file No. 20765/92;
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 Togolese citizen born in 1945, is a chemical
worker residing at Zurzach in Switzerland.
A. Particular circumstances of the case
On 11 April 1974 the applicant married another Togolese citizen
at the Togolese Embassy in Bonn in Germany. The couple lived first in
Germany before moving to Switzerland in 1980. The spouses and their
three children have the right to domicile (Niederlassungsbewilligung)
in Switzerland.
On 19 December 1986 the applicant's wife filed a divorce action
which was transmitted to the Cantonal Court (Kantonsgericht) of the
Canton of Schaffhausen on 19 January 1987. Throughout the ensuing
divorce proceedings in Switzerland the applicant was represented by
a lawyer.
The applicant then filed various statements according to which
only Togolese courts were competent to pronounce a divorce in his
marriage, and if Swiss courts decided the case, they would have to
apply Togolese law. On 18 October 1988 the Cantonal Court confirmed
its jurisdiction to decide the divorce action.
On 2 December 1988, the applicant filed a divorce petition with
the Court of Appeal at Lomé in Togo.
On 9 December 1988 the Court of Appeal (Obergericht) of the
Canton of Schaffhausen rejected the applicant's appeal against the
decision of 18 October 1988 as being out of time.
On 7 November 1989 the Cantonal Court pronounced a divorce in the
applicant's marriage. In its decision the Court relied inter alia on
Section 61 of the Federal Private International Law Act (Bundesgesetz
über das Internationale Privatrecht; see below, Relevant domestic law).
This judgment was confirmed, upon appeal, by the Court of Appeal on
18 October 1991.
The applicant filed an appeal (Berufung) with the Federal Court
(Bundesgericht), complaining inter alia that his divorce would not be
recognised by Togo as both spouses were Togolese citizens who had
married on Togolese territory. The previous courts had also not taken
into consideration the Togolese customs and sense of justice; they had
not duly considered that he had instituted divorce proceedings in Togo.
On 20 May 1992 the Federal Court dismissed the applicant's
appeal.
In its decision the Court noted that the Cantonal Court had
correctly assumed the exclusive and non-derogable jurisdiction
(ausschliesslicher und unverzichtbarer Gerichtsstand) of the Swiss
courts, which was therefore also not called in question by the divorce
proceedings instituted in Togo. Moreover, the previous courts had
correctly assumed that the Federal Private International Law Act was
the applicable Act, and that according to this Act Swiss law was
applicable to the divorce; thus, Section 198 of this Act (see below,
Relevant domestic law) provided that the applicable law was determined
by this Act if a case was still pending before the court of first
instance on 1 January 1989, which had been the case with the
applicant's divorce. Sections 20 and 61 of the Act determined that
Swiss law was applicable.
The Federal Court then examined whether the Court of Appeal's
decision could be upheld under Swiss private international law. It
considered that the Court of Appeal had correctly refused to take into
consideration the alleged Togolese custom of polygamy, or that adultery
was not a ground for divorce.
B. Relevant domestic law
Section 20 para. 1 (a) of the Federal Private International Law
Act (Bundesgesetz über das internationale Privatrecht), which entered
into force on 1 January 1989, provides that a natural person has his
or her ordinary residence in the State, in which he or she resides with
the intention of permanent residence (dauernden Verbleibens).
According to Section 59 (a) of this Act, the Swiss courts at the
ordinary residence of the defendant will be competent to conduct the
divorce proceedings.
Section 61 para. 1 of the Act states that divorce will be subject
to Swiss law.
According to Section 197 para. 1 of the Act, Swiss courts will
remain competent for proceedings or requests which were pending at the
moment of the entry into force of the Act, i.e. on 1 January 1989.
According to Section 198, the applicable law is determined by the Act
for proceedings pending before the court of first instance at the
moment of the entry into force of the Act.
COMPLAINTS
The applicant complains that the Swiss courts, by admitting their
own jurisdiction and applying Swiss law, committed serious errors.
He further complains that he is divorced in Switzerland, though
his marriage, and his ties with his children, remain unchanged in Togo,
where the Swiss divorce will not be accepted. His family is split up
according to two different legal orders. He believes that Swiss views,
to which he has no relationship, were imposed on him.
The applicant does not rely on any particular provision of the
Convention.
THE LAW
1. The applicant complains that the Swiss courts, by admitting their
own jurisdiction and applying Swiss law, committed serious errors.
With regard to the judicial 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).
The Commission has nevertheless examined the applicant's
complaints under Article 6 para. 1 (Art. 6-1) of the Convention.
However, it finds no indication that the applicant, who was represented
throughout the proceedings by a lawyer, could not sufficiently explain
his point of view or put forward any evidence which he regarded as
pertinent.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains of his divorce in Switzerland which will
not be accepted in Togo and alleges that Swiss traditions have been
imposed on him.
However, even assuming that these complaints raise an issue under
Article 8 (Art. 8) of the Convention, which guarantees to everyone
inter alia the right to respect for his family life, or under Article
12 (Art. 12) of the Convention, which guarantees the right to marry and
to found a family, the Commission sees no lack of respect for these
rights in the present case.
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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (H. DANELIUS)
Full & Egal Universal Law Academy