AS TO THE ADMISSIBILITY OF
Application No. 27043/95
by Beat JENNY
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 January 1996, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 1 March 1994 by
Beat JENNY against Switzerland and registered on 18 April 1995 under
file No. 27043/95;
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 applicant is a Swiss national born in 1948. He is a
physicist and resides in Künten.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The particular circumstances of the case
The applicant's employment at the Federal Institute of Technology
(Eidgenössische Technische Hochschule) in Zurich was terminated in
1990. The applicant appealed against this decision to the Swiss
Schools Council (Schulrat). On 5 November 1991 W., the applicant's
superior, contacted the Secretariat of the Schools Council by
telephone. A file note was drawn up of the conversation.
On 18 March 1992 the applicant lodged an action with the Zurich
District Court (Bezirksgericht). He accused W. of defamation according
to Section 174 of the Federal Criminal Code and claimed damages. He
expressly referred to the following part of the file note:
[Original]
"W. warnt dringend, dem Beschwerdeführer entgegenzukommen. Der
Schulrat habe nur Akten vor sich, doch er und seine Mitarbeiter
hätten persönliche Erfahrungen mit ihm, die ebenfalls
berücksichtigt werden sollten. ... er [der Beschwerdeführer]
würde nach einem solchen "Schuldeingeständnis" der ETH eine Reihe
von nicht enden wollenden Prozessen in die Wege leiten. Es werde
ihm dann nicht mehr um die Arbeitsstreitigkeit selber gehen,
sondern um einen Schadenersatz wegen angeblicher
Persönlichkeitsschädigung."
[Translation]
"W. strongly advises against accepting the applicant's claims.
The Schools Council has only the file before it, but W. and his
colleagues have personal experience with him that should also be
taken into account. ... in case of an "acknowledgment of
liability" he [the applicant] would involve the Federal Institute
of Technology in an endless series of proceedings. He would then
no longer be concerned about the labour dispute as such, but he
would seek damages for the alleged injury to his personality".
On 25 May 1992 the acting President of the Zurich District Court
declared the action inadmissible as it did not meet the objective
criteria of defamation under the Swiss law. In his view the only
factual allegation in the statement at issue was that the defendant and
his colleagues had personal experience with the applicant, and this
statement was not defamatory.
The President of the District Court further considered the
defendant's opinion that the applicant would involve the school in a
series of proceedings to be a hypothesis about which there was no
certainty. It could therefore not have been considered as a statement
made in full knowledge of the fact that it was untrue (wider besseres
Wissen) within the meaning of Section 174 of the Criminal Code. The
court found that the statement at issue was neither an insult (üble
Nachrede) nor did it attack the applicant's honour and reputation.
The applicant appealed against this decision. He claimed, inter
alia, that the District Court had not been impartial, that it had not
established the relevant facts, had applied the law erroneously, had
decided arbitrarily and had not sufficiently substantiated its
decision.
On 11 December 1992 the Criminal Chamber of the Canton of Zurich
Court of Appeal (Obergericht) dismissed the appeal. It held that the
first instance decision was lawful as there was no doubt about the lack
of elements of the alleged offence. Neither the first instance court
nor the other party was asked for observations.
On 12 January 1993 the applicant lodged a public law appeal and
a plea of nullity with the Federal Court (Bundesgericht). In the
public law appeal he complained, inter alia, that two Court of Appeal
judges and the legal secretary were biased and that the courts had
failed to take the evidence as required and had decided arbitrarily.
In the plea of nullity the applicant alleged that the Court of
Appeal should have established the contents of the telephone
conversation of 5 November 1991 and that the decision was unlawful
since his right to honour and a good name had not been protected.
On 2 April 1993 the Federal Court dismissed the public law
appeal. It found that it had only jurisdiction to examine the
complaint about partiality of the Court of Appeal judges and of the
legal secretary. This complaint was dismissed on the ground that those
persons could not be considered as biased because of their earlier
participation in different proceedings with a similar subject-matter.
On 23 June 1993 the applicant requested the exclusion of the
Federal Court judges who had earlier dealt with his cases.
On 26 August 1993 the Federal Court rejected the applicant's
request for exclusion of its judges and dismissed the plea of nullity.
It found that it had jurisdiction only to examine the complaint that
federal law had been violated and found, with reference to the reasons
given by the lower courts, that the decisions at issue could not be
challenged from that point of view. The judgment was served on
2 September 1993.
The applicant tried to have criminal proceedings brought against
officials who had dealt with his case. On 8 February 1994 the Federal
Attorney General decided not to commit the officials for trial and on
30 January 1995 the Federal Department of Justice and of the Police
upheld this decision.
The relevant domestic law and practice
Pursuant to Section 174 para. 1 of the Federal Criminal Code
anybody who knowingly brings false accusations against another person
before a third person or imputes to a person dishonest behaviour or any
other fact calculated to diminish the esteem others have for that
person, and anybody who spreads such accusations or suspicions while
he or she is aware of their nature shall be punished by a prison
sentence or by a fine.
By Section 28 para. 1 of the Civil Code anybody whose personality
has been unlawfully impaired can take legal proceedings to protect
himself or herself against the persons involved in such infringement.
Pursuant to Section 49 para. 1 of the Code of Obligations a
person whose personality rights have been unlawfully impaired is
entitled to damages provided that it is justified by the gravity of the
interference unless he or she obtained satisfaction by other means.
Pursuant to Section 313 of the Canton of Zurich Code of Criminal
Procedure the District Court's President is entitled to declare a
charge inadmissible if the facts invoked by the person who attempts to
bring the prosecution do not meet the objective criteria of an offence
(i.e. if the accused would have to be acquitted even if the alleged
facts were established). However, when doubts can arise whether or not
the invoked facts meet the elements of an offence, the case has to be
submitted to the court for examination.
COMPLAINTS
The applicant complains that his action against W. was not
allowed and that he did not have a fair and public hearing before an
impartial tribunal in this respect. In particular, he considers that
the courts failed to establish the relevant facts and decided
arbitrarily because they did not examine all his arguments and did not
hear the participants in the telephone conversation at issue. The
applicant also complains that the Swiss authorities refused to
prosecute the officials who had dealt with his case. He alleges a
violation of Article 6 para. 1 of the Convention.
The applicant also alleges a violation of Articles 1, 13 and 14
of the Convention.
THE LAW
1. The applicant alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention which reads, so far as relevant, as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing ... by an independent and impartial
tribunal established by law."
The Commission does not find it necessary to decide whether
Article 6 (Art. 6) applies to the proceedings in which the applicant's
action against W. was disallowed as this part of the application is in
any event inadmissible for the following reasons.
a) To the extent that the applicant complains of the fact that he
failed in his attempt to have his former superior punished for
defamation and that the courts did not establish all relevant facts and
decided arbitrarily the Commission recalls that it is not competent to
examine alleged errors of fact or law committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of the rights and freedoms guaranteed by the
Convention (cf. No. 12013/86, Dec. 10.3.89, D.R. 59 p. 100).
In the present case the acting President of the District Court
declared the applicant's request to bring private criminal prosecution
inadmissible pursuant to the relevant provisions of the Code of
Criminal Procedure. He held, for reasons laid down in the judgment,
that the facts submitted by the applicant did not meet the objective
criteria of an offence against honour or reputation as defined by Swiss
law. As the accused would in any event have to be acquitted, the court
did not establish the facts alleged by the applicant.
The Court of Appeal and the Federal Tribunal upheld this
position, and the Commission does not find these decisions arbitrary.
The applicant further complains that the Court of Appeal judges
and the Federal Court judges who dealt with his case, including the
clerical staff, lacked impartiality. He refers to their participation
in earlier proceedings with a similar subject-matter to which he was
an unsuccessful party.
The Commission recalls that the fact that a judge participated
earlier in different proceedings with a similar subject-matter is not
in itself reasonably capable of giving rise to legitimate doubts as to
his or her impartiality (cf. Eur. Court H.R., Gillow judgment of
24 November 1986, Series A no. 109, p. 28, para. 73). The Commission
finds no indication that the judges and officials who dealt with the
applicant's case lacked impartiality.
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.
b) To the extent that the applicant alleges that there was no public
hearing in his case the Commission notes that the applicant failed to
raise this issue before the Federal Court. Furthermore, it does not
appear from the documents submitted that he asked the Federal Court to
hold an oral hearing.
In this respect the applicant has failed to comply with the
requirement as to the exhaustion of domestic remedies laid down in
Article 26 (Art. 25) of the Convention.
It follows that this part of the application has to be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
2. To the extent that the applicant complains that no criminal
proceedings were brought against officials involved in his case, the
Commission recalls that Article 6 (Art. 6) of the Convention does not
guarantee a right to have criminal proceedings instituted against third
persons (cf. No. 16734/90, Dec. 2.9.91, D.R. 72 p. 236).
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The applicant further alleges a violation of Article 13
(Art. 13) of the Convention which reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that as regards the alleged interference
with the applicant's honour and reputation, the applicant was free to
seek redress by means of civil proceedings pursuant to Section 28 of
the Civil Code and Section 49 para. 1 of the Code of Obligations. He
did not avail himself of this possibility.
In any event, the guarantees of Article 13 (Art. 13) apply only
to a grievance which can be regarded as "arguable" (cf. Eur. Court
H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172,
p. 14, para. 31, with further references). In the present case the
Commission has rejected the substantive claims either as disclosing no
appearance of a violation of the Convention or for non-exhaustion of
domestic remedies or as being incompatible ratione materiae with the
Convention. For similar reasons, they cannot be regarded as
"arguable".
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 Commission has examined the applicant's complaints
under Articles 1 and 14 (Art. 1, 14) of the Convention but finds that
insofar as they have been substantiated and are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in 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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy