AS TO THE ADMISSIBILITY OF
Application No. 23135/93
by J.-P. E.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. H. DANELIUS, Acting President
S. TRECHSEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. 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 8 July 1993 by
J.-P. E. against Switzerland and registered on 20 December 1993 under
file No. 23135/93;
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 facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Swiss citizen born in 1948, is a lawyer residing
in Geneva.
On 11 December 1990 the Attorney General (Procureur géneral) of
the Canton of Geneva issued a decision to debar the applicant from the
Geneva Bar. On 1 July 1991 the applicant's appeal against this
decision was dismissed by the Cantonal Disciplinary Commission of the
Bar.
The applicant filed an appeal against this decision to the
Administrative Court of the Canton of Geneva, requesting an extension
of the time-limit to file a memorial. He was granted the extension
until 25 October 1991 and a further extension until 20 November 1991.
Apparently the applicant failed to file a memorial. By registered
letter of 4 December 1991 the applicant informed the Administrative
Court of his intention to leave Switzerland for several weeks. He
requested the Court to address all correspondence concerning the case,
including any final decision, to his address in Panama. There was no
reply to this letter.
On 10 December 1991 the applicant's friend, whom he requested to
collect his mail during his absence, wrote a letter to the Court
sending back certain letters transmitted to the applicant's address in
Geneva. He also gave the applicant's address abroad.
On 11 December 1991 the Administrative Court declared the
applicant's appeal inadmissible as he had failed to file a memorial to
the Court. On 19 December 1991 this decision was sent by registered
letter to the applicant's address in Geneva. Not having been served
upon the applicant due to his absence, it was subsequently returned to
the Administrative Court.
The Court then apparently again sent its decision to the
applicant's Geneva address. This decision was forwarded to the
applicant by his friend, but did not reach him in Panama.
On 17 February 1992 the President of the Administrative Court
informed the Public Prosecutor that the judgment of 11 December 1991,
not having been claimed at the post office, was to be considered as
having been served on 27 December 1991. He further stated that no
appeal had duly been filed with the Federal Court, for which reason the
judgment had become final. On 18 February 1992 the Public Prosecutor
declared the debarring of the applicant as being definitive.
On 25 March 1992, while representing a client during a court
hearing, the applicant learned that he had been debarred. On 1 April
1992 he requested the President of the Administrative Court to send to
him a copy of the judgment. This was refused in 15 April 1992 by the
President of the Administrative Court who considered that the serving
of the decision at the Geneva address had been "regular" ("regulière")
and thus there was no need to serve it again.
On 16 May 1992 the applicant filed a public law appeal with the
Federal Court. The applicant submitted that the Administrative Court
had acted arbitrarily and contrary to the principle of good faith,
having deliberately sent the decision to an address where he could not
be reached. The applicant complained that he had thus been denied
access to court.
On 30 September 1992 the Federal Court declared the applicant's
appeal inadmissible. The Federal Court took the view that the serving
of the decision at the applicant's address in Geneva was correct, even
though the applicant had informed the Administrative Court of his
intended absence. The Court found that the Administrative Court "could
and had to" ("pouvait et devait") send the decision to the applicant's
Geneva address, as the applicant was under an obligation to have a
permanent office address in the Canton. The Federal Court also
considered it irrelevant that other courts of the same Canton had
notified their decisions taken during the applicant's absence to his
address abroad. The Federal Court further considered that it fell to
the applicant to take appropriate steps to ensure that his judicial
mail would duly be served on him. The Federal Court also found that,
in any event, the public law appeal would have to be declared
inadmissible as it had been introduced out of time.
The judgment of the Federal Court was served on the applicant on
30 December 1992. The applicant claimed it at the post office on
11 January 1993.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the decision of the Administrative Court was sent to his Geneva address
even though the Court fully knew that it would not reach him there.
The applicant submits that the Administrative Court was under no legal
obligation to do so and that it failed to consider other means of
ensuring that the decision reached him, namely by sending it abroad by
a registered letter or through the Swiss consular or diplomatic
representations. He submits that the Court was acting arbitrarily and
not in accordance with the principle of good faith. As a result, he
could not file an appeal against the decision of the Administrative
Court to the Federal Court and was thus denied access to court.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that, as the decision of the Administrative Court was not
sent to his temporary address abroad, he was denied access to court as
he could not file an appeal in time. He invokes Article 6 (Art. 6) of
the Convention.
The Commission recalls that Article 6 para. 1 (Art. 6-1) secures
to everyone the right of access to court. This right is, however, not
absolute, but may be subject to limitations since by its very nature
it calls for regulation by the State. Nonetheless the limitations
applied must not restrict or reduce the access left to the individual
in such a way or to such an extent that the very essence of the right
is impaired (see Eur. Court H.R., Philis judgment of 27 August 1991,
Series A no.209, p.20, para. 59). In the present case the decision to
debar the applicant was subject to judicial review by the
Administrative Court and the applicant addressed an appeal to this
court. However, he not only failed to file a memorial within the time-
limit fixed by the court but also did not take the necessary measures
to ensure that judicial mail arriving at his office address in Geneva
was received and forwarded to his temporary address abroad. The
Commission notes the findings of the Federal Court that, as a lawyer
practising in Geneva, the applicant was obliged to have a permanent
office address in the Canton, and that the Administrative Court had to
send its decision to that address. The Commission does not consider
that this situation under domestic law was in any way incompatible with
the applicant's right of access to court under Article 6 para. 1
(Art. 6-1) of the Convention.
The application is therefore 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
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Acting President of the
Second Chamber Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy