AS TO THE ADMISSIBILITY OF
Application No. 21217/93 Application No. 21218/93
by Willi BRAND and 22 others by Hans BÖTSCHI and 12 others
against Switzerland against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 December 1992
by Willi BRAND and 22 others against Switzerland and registered on
21 January 1993 under file No. 21217/93, and to the application
introduced on 31 December 1992 by Hans BÖTSCHI and 12 others against
Switzerland and registered on 21 January 1993 under file No. 21218/93;
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 particular circumstances of the case
The applicants are individuals and legal persons residing in
Switzerland and involved in animal husbandry. Their particulars are
set out in Appendix 1 attached hereto. The applicants in Application
No. 21217/93 are represented by Mr. Jakob Huber, a lawyer practising
in Kaltbrunn. The applicants in Application No. 21218/93 are
represented by Mr. Arnold Weber, a lawyer practising in St. Gallen.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
By regulation (Höchstbestandesverordnung) of 10 December 1979 the
Federal Council (Bundesrat) fixed limits on the number of animals which
could be kept for farming purposes. The regulation was revised in 1981
and 1986. Farmers had a transitional period expiring on
31 December 1991 to comply with the regulation. After that date
farmers were liable to pay a surcharge (Abgabe) if the limits were
exceeded.
The applicants considered that they had been expropriated since,
by virtue of the regulation, they had to reduce their livestock to the
fixed limits. Together with other farmers they introduced actions for
compensation with the Federal Court (Bundesgericht).
The Court invited each of the applicants to pay 10,000 SFr
advance court fees. The applicants in Application No. 21218/93 were
informed that the advance court fees were imposed in accordance with
Section 150 para. 1 of the Federal Judiciary Act (Bundesgesetz über die
Organisation der Bundesrechtspflege). The amount of the fees was fixed
pursuant to Section 153 of the Federal Judiciary Act and the scale of
fees introduced on 15 September 1969.
On 16 March 1990 the Rapporteur (Instruktionsrichter) joined all
75 actions introduced in this matter and determined that the only point
of law on which the Federal Court had to decide was the question
whether there had been a material expropriation.
The applicants had the opportunity to present a reply both to the
submissions by the Department of Finance (Eidgenössische
Finanzverwaltung) and to its subsequent rejoinder. In September 1991
preliminary oral hearings took place and subsequently the applicants
submitted their written observations on the case.
At the principal hearing held on 16 October 1991 the applicants'
lawyers addressed the court. On 18 October 1991 the first deliberation
took place. At its end several of the initial 75 claimants withdrew
their actions. No final decisions were taken on the applicants'
cases.
On 6 and 7 December 1991 37 claimants requested the exclusion of
the participating judges. On 7 April 1992 the Federal Court rejected
this request and the claimants concerned were charged 300 SFr in
addition to fees in the main proceedings.
The second deliberation, originally scheduled for 13 December
1991, was held on 8 May 1992. In its detailed judgment comprising 31
pages rendered on the same day, the Federal Court dismissed the
applicants' claims concerning compensation. It held, inter alia, that
the introduction of livestock limits had a legal basis in Section 19a
(a) of the 1951 Agriculture Act (Landwirtschaftsgesetz) and Article
31bis para. 3 (b) of the Federal Constitution authorising the
Confederation to pass regulations diverging from the constitutional
principle of liberty of trade. In fact, this measure aimed at
maintaining sound husbandry and productive agriculture based on small
and medium-size farms rather than large industrial units.
The Federal Court found that the Swiss Constitution did not
provide for compensation when State intervention (i.e. interference
with the liberty of trade and business in the applicants' cases) had
only secondary and indirect effects on property. The Federal Court
considered that granting the farmers compensation would result in a
State subsidy system replacing the regulations as enacted. Such a
decision would, in the Federal Court's view, amount to declaring the
system of livestock limits introduced by the legislator
unconstitutional, and the Federal Court lacked jurisdiction in this
respect.
The Federal Court also held that the interference with the
applicants' rights was mitigated by the advantages of the new system
in respect of all farmers, namely preventing over-production and a
subsequent price collapse. As an example, the production of pork was
quoted, where home production allegedly exceeded the 95% limit provided
for in the relevant regulation.
The Court found no analogy with expropriation, since the
intervention was basically aimed at limiting the production capacities
with a view to maintaining as many farms as possible. It considered
that the regulation was in the farmers' interests rather than the
public interest.
The Federal Court further considered that the applicants had to
take into account the risk they underwent when enlarging their
production facilities and that this risk was inherent in any
entrepreneur's activity. Moreover, the Court took into account the
fact that the legislator provided for a transitional period in order
to mitigate, as far as possible, the impact of the new regulation on
farmers' investments.
The Federal Court considered that the size of losses suffered by
individual applicants was irrelevant. It therefore found it
unnecessary to take supplementary evidence or to order inspections and
expert reports in individual cases as requested by the applicants.
The court fees were fixed pursuant to Section 153a of the Federal
Judiciary Act as amended and in force since 15 February 1992 (see
Appendices 2 and 3). The Federal Court fixed the fees in accordance
with the new scale enacted on 1 April 1992, i.e. taking into account
the value of the subject-matter and also the fact that there were
several similar actions concerning the same matter. The Court also
took into consideration, in fixing the fees in each individual case,
that if there had been no request for exclusion of the judges, the
decisions would have been taken on 13 December 1991, i.e. before the
entry into force, on 15 February 1992, of the amendments providing for
higher fees.
Relevant domestic law
Fees in proceedings before the Federal Court are governed by the
Federal Judiciary Act.
Section 150 para. 1 of the Act provides, inter alia, that a
plaintiff before the Federal Court must, upon the order of the
President, provide security for the likely court fees.
Pursuant to para. 1 of Section 153a the fees are to be determined
according to the value, the volume and the complexity of the subject-
matter, the way of conducting the proceedings and the financial
situation of the participants. Para. 2 (a) provides for fees of
between 1,000 and 100,000 Sfr when the Federal Court is the only level
of jurisdiction.
The provisions of Section 153a are supplemented by a scale of
fees which entered into force on 1 April 1992. The scale is not
binding and its relevant part recommends the following fees:
Value of the subject-matter (SFr) Court fees (SFr)
500,000- 1,000,000 12,000- 30,000
1,000,000- 2,000,000 15,000- 50,000
2,000,000-10,000,000 20,000- 80,000
more than 10,000,000 40,000-100,000
According to the transitional provisions Section 153a was
applicable to all cases pending before the Federal Court at the date
of entry into force of the amendments.
COMPLAINTS
The applicants allege a violation of their right to a fair
hearing under Article 6 para. 1 of the Convention. They complain that
the Federal Court did not establish the facts in each individual case,
refused to carry out on the spot inspections and to request expert
reports. They allege that the main issue at stake, i.e. whether there
was an expropriation, could not be decided in a fair manner without
establishing the loss in each individual case.
The applicants further consider that the Federal Court
established the facts contrary to the reality and to the evidence
submitted by them:
a) by finding that the profitability of the domestic animal
husbandry was mainly based on import limitations. The applicants claim
that they proved that the limitation on meat import was aimed
exclusively at protecting the domestic arable farming;
b) by establishing that the absence of any regulatory measures would
lead to an over-production of meat. The applicants claim that the
market was self-regulated by the so-called "pig cycle";
c) by affirming that the implementation of the livestock limits
aimed also at protecting the applicants' interests;
d) by holding that compensation for losses the applicants had
suffered would amount to subsidising animal production.
Finally, the applicants complain about excessive court fees. In
their view, in the absence of an individual examination of any of the
complaints, the fees charged constitute a punishment and violate their
right to a fair trial under Article 6 para. 1 of the Convention.
Moreover, the proceedings were allegedly unfair in that (i) after the
first hearing the applicants were encouraged to withdraw their actions
in order to avoid higher expenditure and (ii) the court fees in respect
of claimants who withdrew their actions were relatively low. Those
applicants who challenged the judges complain about the supplementary
fee of 300 SFr. Moreover, they complain of having been charged
disproportionately higher fees than the claimants who had not
challenged the judges.
THE LAW
1. The Commission, having regard to the similarity of the
applications, considers it appropriate to join them under Rule 35 of
its Rules of Procedure.
2. The applicants allege a violation of Article 6 para. 1
(Art. 6-1) of the Convention, which provides, so far as relevant, as
follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The applicants allege that the Federal Court failed to establish
several relevant facts and established other facts contrary to the
reality and to the evidence submitted by them.
The Commission recalls that it has no general jurisdiction to
consider whether domestic courts have committed errors of law or fact,
its function being to consider the fairness of the proceedings (cf.
No. 6172/73, Dec. 7.7.75, D.R. 3 p. 77; No. 10000/82, Dec. 4.7.83, D.R.
33 p. 247). It is primarily for the national courts to assess the
evidence before them (cf., mutatis mutandis, Eur. Court H.R., Schenk
judgment of 12 July 1988, Series A no. 140, p. 29, para. 46), unless
there has been gross unfairness or arbitrariness (cf. No. 7987/77,
Dec. 13.12.79, D.R. 18 p. 31).
In the present case the applicants had ample opportunity to reply
to the arguments brought by the Department of Finance and to submit
evidence which they considered necessary.
To the extent that the applicants allege a violation of their
right to a fair hearing in that the Federal Court took the decision
without establishing the facts in each individual case, the Commission
notes that the Federal Court, for the reasons stated in its judgment,
did not, in its examination of the legislation complained of and its
application, consider it necessary to establish these facts. The
Commission cannot find that the Federal Court acted arbitrarily in this
respect, or otherwise, as regards the establishment of the facts and
the assessment of the evidence submitted.
The Commission notes that the Federal Court decided on the
question of law, namely whether the implementation of the livestock
limits regulation resulted in expropriation of the applicants'
property. This decision was taken by means of application and
interpretation of domestic law which the Commission cannot review (cf.
No. 10153/82, Dec. 13.10.86, D.R. 49 p. 74).
The Federal Court assumed that the applicants had suffered
losses. However, for the reasons set out in the judgment, it reached
the conclusion that there had been no expropriation of the applicants'
property. The Federal Court found it therefore irrelevant to determine
the amount of the loss in each individual case, as claimed by the
applicants, and the Commission does not find this conclusion
unreasonable.
It follows that there is no appearance of unfairness or
arbitrariness in the proceedings complained of, considered as a whole.
This part of the application is therefore manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants further complain about imposition of
disproportionately high fees for the proceedings, about a supplementary
fee of 300 Sfr having been imposed on those who challenged the judges
and about having been advised to withdraw their actions in order to
avoid higher expenses.
Article 6 para. 1 (Art. 6-1) of the Convention secures, inter
alia, a right of access to the courts (see Eur. Court H.R., Fayed
judgment of 21.9.94, Series A No. 294-B, para. 65 and the case-law
there referred to).
However, it does not appear from the applicants' submissions that
their right to introduce the proceedings before the Federal Court was
in any way impaired by the imposition of costs in the proceedings. The
applicants do not submit that they applied for free legal aid or that
they requested and were refused a waiver of court fees. Nor does it
appear from the documents submitted that the fees and the alleged
advice to withdraw the actions prevented the applicants from conducting
those proceedings effectively through their lawyers. The Commission
considers, therefore, that the imposition of the costs of the
proceedings on the applicants was not contrary to Article 6 para. 1
(Art. 6-1) of the Convention.
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.
4. Finally, the applicants complain that the fees imposed on the
claimants who withdrew their actions after the first hearing were much
lower than those imposed on them. Moreover, the applicants affected
complain that the claimants who had not challenged the Federal Court
judges were charged disproportionately lower costs.
The Commission notes that the Federal Court, in fixing the fees,
applied Section 153a of the Federal Judiciary Act as in force since
15 February 1992. The fees were in each individual case lower than the
minimum amount set by the scale, which was not binding (see Appendices
2 and 3). The Federal Court took into account the fact that, had there
been no challenge of the judges, the decision would have been taken in
December 1991, i.e. before the entry into force of the amendments
introducing higher fees. It is for this reason that the Federal Court
charged the claimants who had not challenged the judges lower fees.
As to the claimants who withdrew their actions after the first
hearing, i.e. prior to the entry into force of the amendments providing
for higher fees, the fees imposed on them were fixed in application of
the law then in force, account being taken of the fact that the
proceedings were not completed.
The Commission has found above that the imposition of the court
fees on the applicants was not contrary to Article 6 para. 1 (Art. 6-1)
of the Convention. For similar reasons, it considers that the
differentiation the applicants complain of did not affect their rights
under this provision.
The Commission further observes that the Federal Court gave
reasons for its decision concerning the fees for the proceedings and
their examination does not disclose any arbitrariness.
It follows that this part 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 by a majority
1. DECIDES TO JOIN APPLICATIONS Nos. 21217/93 AND 21218/93;
2. DECLARES THE APPLICATIONS INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
APPENDIX 1
Application No. 21217/93
Willi BRAND and 22 others v. Switzerland
Particulars of the applicants
1. Willi BRAND, residing at Cournillens
2. Albert BRAND, residing at Cournillens
3. FRIOEUF SA, residing at Cournillens
4. Peter ENGELI, residing at Engishofen
5. Hans FREI-SANDMEIER, residing at Schafisheim
6. Walter FRISCHKNECHT, residing at Appenzell
7. GROSSRUGENSTALL AG, residing at Kerns
8. HAMMER AG, residing at Cham
9. Erbengemeinschaft Emil HUBER, residing at Kaltbrunn
10. Alois IMLIG, residing at Oberriet
11. JOST AG, residing at Gunzwill
12. Josef KURMANN, residing at Herlisberg
13. Alois RÖTHLIN, residing at Lachen
14. Pirmin SCHÖPFER, residing at Mühlau
15. STAFFELEGGHOF AG, residing at Küttingen
16. Walter BIRCHER, residing at Küttingen
17. STRÄHL AG, residing at Leimbach
18. BASISZUCHT FORTUNA AG, residing at Leimbach
19. AGROPORC AG, residing at Leimbach
20. Roman OCHSNER, residing at Frutwilen
21. Rolf REINHART, Gutsbetrieb, residing at Lipperswil
22. GENEA AG, residing at Lipperswil
23. KAPROS AG, residing at Lipperswil
Application No. 21218/93
Hans BÖTSCHI and 12 others v. Switzerland
Particulars of the applicants
1. Hans BÖTSCHI, residing at Niederhelfenschwil
2. Eugen EBERLE, residing at Güttingen
3. Gebrüder EBERLE, residing at Güttingen
4. FEAG Sonnhalde AG, residing at Eschenbach
5. Adolf FORSTER AG, residing at Märstetten
6. Heinz JORDI, residing at Schönholzerswilen
7. Fritz MARTI AG, residing at St. Gallen
8. ES-Zuchtstation Sevelen AG, residing at Sevelen
9. Hans PFANDER, residing at Veltheim
10. ULRO AG, residing at Gipf-Oberfrick
11. Versuchsbetrieb Rüti AG, residing at Züberwangen
12. VLS-Zuchtstation Salez AG, residing at Salez
13. Paul ZEHNDER, residing at Kriessern
APPENDIX 2
Application No. 21217/93
Applicants Request for Value of Scale of fees Actual
exclusion the subject under fees
of judges matter Section 153a
-------------------------------------------------------------
1. W. Brand
2. A. Brand Y 5,400,000 20,000-80,000 18,300
3. Frioeuf SA
--------------------------------------------------------------
4. P. Engeli Y 2,340,000 20,000-80,000 14,300
--------------------------------------------------------------
5. H. Frei-Sandmeier Y 2,237,000 20,000-80,000 14,300
--------------------------------------------------------------
6. W. Frischknecht Y 828,000 12,000-30,000 10,300
--------------------------------------------------------------
7. Grossrugenstall AG Y 2,290,000 20,000-80,000 14,300
--------------------------------------------------------------
8. Hammer AG Y 5,834,000 20,000-80,000 18,300
--------------------------------------------------------------
9. Erbengemeinschaft
E. Huber Y 1,061,000 15,000-50,000 12,300
--------------------------------------------------------------
10. A. Imlig Y 4,713,000 20,000-80,000 16,300
--------------------------------------------------------------
11. Jost AG Y 453,400 8,000-20,000 6,300
--------------------------------------------------------------
12. J. Kurmann Y 1,878,000 15,000-50,000 12,300
--------------------------------------------------------------
13. A. Röthlin Y 7,824,000 20,000-80,000 18,300
--------------------------------------------------------------
14. P. Schöpfer Y 898,000 12,000-30,000 10,300
--------------------------------------------------------------
15. Staffelegghof AG
16. W. Birche Y 1,883,000 15,000-50,000 12,300
--------------------------------------------------------------
17. Strähl AG
18. Basiszucht Fortuna AG
19. Agroporc AG Y 14,638,496 40,000-100,000 20,300
--------------------------------------------------------------
20. R. Ochsner
21. R. Reinhart N 2,828,055 20,000- 80,000 8,000
22. Genea AG
23. Kapros AG
--------------------------------------------------------------
APPENDIX 3
Application No. 21218/93
Applicants Request for Value of Scale of fees Actual
exclusion of the subject under fees
of judges matter Section 153a
--------------------------------------------------------------
1. H. Bötschi Y 1,994,300 15,000-50,000 12,300
--------------------------------------------------------------
2. E. Eberle
3. Gebr. Eberle Y 1,770,000 15,000-50,000 12,300
--------------------------------------------------------------
4. Feag Sonnhalde AG Y 2,400,000 20,000-80,000 14,300
--------------------------------------------------------------
5. A. Forster AG Y 7,423,000 20,000-80,000 18,300
--------------------------------------------------------------
6. H. Jordi Y 1,842,000 15,000-50,000 12,300
--------------------------------------------------------------
7. F. Marti AG Y 1,800,000 15,000-50,000 12,300
8. ES-Zuchtstation Sevelen AG
--------------------------------------------------------------
9. H. Pfander Y cca. 935,710 12,000-30,000 8,300
--------------------------------------------------------------
10. Ulro AG Y 3,150,000 20,000-80,000 16,300
--------------------------------------------------------------
11. Rüti AG Y 2,300,000 20,000-80,000 14,300
--------------------------------------------------------------
12. VLS Zuchtstation
Salez AG Y 1,180,000 15,000-50,000 12,300
--------------------------------------------------------------
13. P. Zehnder Y 771,000 12,000-30,000 10,300
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