J.M v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 21083/92

                      by J. M.

                      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 6 November 1992

by J. M. against Switzerland and registered on 16 December 1992 under

file No. 21083/92;

      Having regard to:

-     reports provided for in Rule 47 of the Rules of Procedure of the

      Commission;

-     the observations submitted by the respondent Government on

      22 April 1993 and the observations in reply submitted by the

      applicant on 28 May 1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the parties, may be

summarised as follows.  The applicant, a Swiss citizen born in 1924,

is a businessman residing in Zurich.

      In his application the applicant complains about six decisions

of the Federal Court (Bundesgericht) of 22 April 1992, and one decision

of that Court of 6 August 1992.

Particular circumstances of the case

                                  I.

      The six decisions of the Federal Court originated in the

following proceedings before the Zurich Courts.

a)    The first set of proceedings concerned the applicant's requests

for interpreting decisions of the Zurich Rent Court (Mietgericht) of

1 October 1985 and 18 August 1988.  These requests were eventually

refused by the Zurich Rent Court on 6 June 1991.  The applicant's

appeal (Rekurs) was dismissed by the Zurich Court of Appeal

(Obergericht) in two decisions of 19 July 1991.  The applicant filed

two pleas of nullity to the Court of Cassation (Kassationsgericht) of

the Canton of Zurich.  On 4 December 1992 the Court of Cassation

dismissed one plea of nullity, and on 12 December 1991 it partly upheld

the other plea of nullity insofar as it concerned the challenge of a

particular judge.  In this respect the Court of Cassation referred the

case back to the Court of Appeal.

b)    In the second set of proceedings the Zurich Court of Appeal again

decided on the applicant's challenge of one particular judge.  On

10 January 1992 the Court dismissed the applicant's challenge and

upheld its previous decisions of 19 July 1991.

c)    The third set of proceedings related to a lease contract

concerning a farmer's right to use grass and fruit growing on the

applicant's land.  The contract included an annual reimbursement of

2,500 SFr.   Apparently the farmer gave notice (Kündigung), whereupon

the applicant filed claims arising out of the contract before the

Zurich Rent Court.  The latter on 19 April 1990 declared that it did

not have jurisdiction to deal with the case, which was referred to the

Zurich District Court.  The applicant then unsuccessfully contended

that this Court had no jurisdiction.  His appeal (Rekurs) was dismissed

by the Zurich Court of Appeal on 15 July 1991, his subsequent pleas of

nullity by the Zurich Court of Cassation in two decisions of 4 and 17

December 1991.  The lease contract proceedings are apparently still

pending.

d)    In the fourth set of proceedings the applicant filed an action

against a former tenant in which he raised claims arising from

execution proceedings.  The action was dismissed by the Zurich Rent

Court on 15 November 1991.  The applicant filed an appeal with the

Zurich Court of Appeal which is apparently still pending.  He also

challenged a particular Court of Appeal judge.  The challenge was

dismissed by the Court of Appeal on 17 January 1992.

e)    In the fifth set of proceedings, directed against the Zurich City

Councillor (Stadträtin) K., the applicant challenged judges of the

Zurich District Court.  The challenge was eventually dismissed by the

Appeals Commission (Verwaltungskommission) of the Zurich Court of

Appeal on 5 December 1991.

f)    The sixth set of proceedings concerned the applicant's lease

contract with a company.  When the latter went bankrupt, the applicant

filed a claim which was dismissed on 29 December 1988 by the Zurich

District Court.  His appeal was upheld on 29 January 1991 by the Zurich

Court of Appeal  which referred the case back to the District Court in

particular for the taking of further evidence; the Court further

dismissed the applicant's challenge of certain judges and imposed on

him a fine of 500 SFr in view of his conduct during the friendly

settlement proceedings. The applicant's plea of nullity against this

decision, in which he complained inter alia of the lack of independence

of a Court of Appeal judge, was dismissed by the Zurich Court of

Cassation on 14 December 1991.

                                  II.

      In respect of each of these proceedings the applicant filed a

public law appeal (staatsrechtliche Beschwerde) with the Federal Court

(Bundesgericht) in which he complained of breaches of his

constitutional rights; he also requested interim measures and

challenged various judges of the Federal Court.

      By Presidential Order of 3 March 1992 the Federal Court imposed

in each of the proceedings court costs of 3,500 SFr on the applicant,

payable until 18 March 1992.  The Order thereby referred to Section

153a of the Federal Judiciary Act (Organisationsgesetz; see below,

Relevant domestic law).  The Order further explained that the request

for interim measures was dismissed as the appeals lacked prospects of

success (weil die Beschwerde keine Aussicht auf Erfolg hat).

      On 18 May 1992 the applicant requested the reopening of these

proceedings and also challenged other Federal Court judges.

      The Federal Court dismissed the public law appeals in six

decisions of 22 April 1992.

      In its decisions the Court first noted the previous decisions

which the applicant contested as well as his requests that his appeals

should be endowed with suspensive effect.  The Court further noted that

the request for suspensive effect had been dismissed by the Court

President and the applicant had been requested to pay advance court

costs of 3,500 SFr before 18 March 1992.  However, by letter dated 18

March 1992 the applicant had requested the reopening of the

Presidential proceedings and had challenged other Federal Court

judges.

      The Federal Court considered that the additional challenge

following the Presidential Order was abusive, and that the applicant

had apparently intended not to have to pay the advance court costs

within the time-limit imposed.  The Court found that his procedural

conduct was once again abusive and wilful (mutwillig) and that a new

time-limit for paying the advance court costs was therefore excluded.

Finally, the Court noted that as the court costs had not been duly

paid, it could not deal with the public law appeals concerned.

      In its decisions the Court formally declared inadmissible each

of the applicant's public law appeals.  In each decision it imposed on

the applicant costs of proceedings (Gerichtsgebühr) amounting to

1,000 SFr.  It also imposed in each decision a disciplinary fine

(Ordnungsbusse) of 500 SFr.

                                 III.

      Against these decisions the applicant filed a request for the

reopening of the previous proceedings (Revision).  He also challenged

a number of Federal Court judges.   The Court thereupon invited the

applicant to pay advance court costs amounting to 6,500 SFr before

1 July 1992.  By letter of 26 June 1992 the applicant informed the

Court that he would not pay the costs.

      On 6 August 1992 the Federal Court dismissed the applicant's

requests for the reopening of the proceedings as the applicant had

failed to pay the court costs.  It also imposed costs of proceedings

on the applicant amounting to 2,000 SFr.

Relevant domestic law

      Section 31 of the Federal Judiciary Act (Organisationsgesetz)

stated in the version applicable at the relevant time:

      "1.  Whoever in his oral or written communications

      breaches propriety required by public policy, or disturbs

      the conduct of proceedings, shall be punished with a

      reprimand or a disciplinary fine of up to 100 SFr.

      2.   Both the party and its representative may be punished

      by  means of a disciplinary fine of up to 200 SFr, in case

      of relapse up to 500 SFr, on account of malevolent or

      wanton conduct of the proceedings."

      "1.  Wer im mündlichen oder schriftlichen Geschäftsverkehr

      den durch die gute Sitte gebotenen Anstand verletzt oder

      den Geschäftsgang stört, ist mit einem Verweis oder mit

      Ordnungsbusse bis auf 100 Franken zu bestrafen.

      2.   Wegen böswilliger oder mutwilliger Prozessführung

      kann sowohl die Partei als deren Vertreter mit einer

      Ordnungsbusse bis auf 200 Franken und bei Rückfall bis auf

      500 Franken bestraft werden."

      According to Section 84 para. 1 (a) of the Federal Judiciary Act,

a public law appeal serves to complain inter alia of breaches of

constitutional rights of citizens.

      According to Section 150 para. 1 of the Federal Judiciary Act,

whoever calls upon the Federal Court in civil cases must, upon an order

of the President, provide a security for the probable courts costs.

      Section 153a of the Federal Judiciary Act concerns court costs.

According to paras. 1 and 2b) of this provision, in case of public law

appeals the costs will vary between 200 and 5,000 SFr, depending on the

special circumstances of the case, e.g. its particular volume or

complexity.

COMPLAINTS

      The applicant complains under Article 6 para. 1 of the Convention

that the Federal Court's decisions were taken by biased judges.  The

applicant also complains that the Court refused to decide on his

challenges of the various judges.

      The applicant further complains that the decisions, including the

imposition of costs of the proceedings and of disciplinary fines of 500

SFr each, breached his right under Article 6 para. 1 of the Convention

to fair and correct proceedings.

      The applicant complains that the decisions of the Federal Court

of 22 April and 6 August 1992 were handed down in secret proceedings,

in violation of the principle of the publicity of proceedings enshrined

in Article 6 para. 1 of the Convention.

      With regard to the alleged bias of judges of the Federal Court

and the outcome of the proceedings, the applicant also submits that he

did not have an effective remedy within the meaning of Article 13 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 6 November 1992 and registered

on 16 December 1992.

      On 10 February 1993 the Commission decided to communicate the

complaint about the fines imposed on the applicant.

      The Government submitted their observations on 22 April 1993 and

the applicant his observations in reply on 28 May 1993.

THE LAW

1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the proceedings leading to the Federal Court's decision

of 6 August 1992.  He also complains of the imposition of court costs

in these proceedings.

      However, the Commission notes that the proceedings at issue

concerned the reopening of previous proceedings before the Federal

Court.  According to the Commission's case-law, there is no right under

the Convention to have proceedings reopened, and such proceedings also

do not concern "the determination of (the applicant's) civil rights and

obligations or of any criminal charge against him" within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention (see No. 7761/77,

Dec. 8.5.78, D.R. 14 p. 171.

      This part of the application is therefore incompatible ratione

materiae with the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.    Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicant complains of the imposition of court costs in the proceedings

leading to the various decisions of the Federal Court of 22 April 1992.

      The Commission need not examine the applicability of Article 6

(Art. 6) of the Convention to each of the proceedings at issue as this

part of the application is in any event inadmissible for the following

reason.

      According to the Convention organs' case-law, Article 6 para. 1

(Art. 6-1) of the Convention secures to everyone the right to fair

proceedings before a court, of which the right of access to a court

constitutes one aspect (see Eur. Court H.R., Philis judgment of

27 August 1991, Series A no. 209, p. 20, para. 59).

      However, Article 6 para. 1 (Art. 6-1) of the Convention does not

debar Contracting States from making regulations, in the interests of

the good administration of justice, concerning the access to courts.

Furthermore, free legal aid, or the waiver of court costs, can be made

dependent on the prospects of success of the proceedings (see No.

8158/78, Dec. 10.7.80, D.R. 21 p. 95; No. 10594/83, Dec. 14.7/87, D.R.

52 p. 158).  Nevertheless, the regulations employed by the State must

not reduce the right of access to court to such an extent that the very

essence of the right is impaired.

      Thus, in the case of N. v. Switzerland, the Commission found no

violation under Article 6 para. 1 (Art. 6-1) of the Convention in

respect of advance court costs of 6,500 SFr imposed on the indigent

applicant in proceedings before the Federal Court as the only level of

jurisdiction.  The Commission considered in particular that the case

lacked prospects of success and the applicant had in advance been

informed thereof (see Comm. Report 9.4.93, to be published in D.R.).

In another case, the Commission declared manifestly ill-founded a

complaint under Article 6 para. 1 (Art. 6-1) of the Convention about

court costs amounting to 20,000 SFr (see No. 6916/75, Dec. 10.7.80,

D.R. 21 p. 95).

      In the present case the Federal Court imposed advance court costs

of 3,500 SFr on the applicant in respect of each set of proceedings.

When he failed to pay these costs, the Court declared his public law

appeals inadmissible while imposing costs of the proceedings of 1,000

SFr in respect of each set of proceedings.

      However, the Commission notes that the applicant has not claimed

to be indigent.  Furthermore, in these proceedings the Federal Court

was not empowered to deal with the applicant's complaints with full

jurisdiction; rather, it was examining his public law appeals as to a

breach of the applicant's constitutional rights.  The Federal Court was

also not examining the complaints as the only level of jurisdiction,

but as the second, third and even fourth court.  Finally, the applicant

was informed in advance that the various public law appeals lacked

prospects of success.

      In the Commission's opinion, the imposition of court costs on the

applicant in these proceedings constituted a regulation, in the

interests of the good administration of justice, of access to court

which was not contrary to Article 6 para. 1 (Art. 6-1) of the

Convention.

      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.    In his further complaints under Article 6 para. 1 (Art. 6-1) of

the various proceedings before the Federal Court and their outcome the

applicant submits in particular that the Federal Court's decisions of

22 April 1992 were taken by biased judges, that the Court refused to

decide on his challenges of the various judges, and that the decisions

were handed down in secret proceedings.

      The Commission notes that in its decisions of 22 April 1992 the

Federal Court was merely dealing with the issue of the inadmissibility

of the appeals for failure to pay court costs.  However, such a

decision does not concern "the determination of (the applicant's) civil

rights and obligations" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, and this provision is therefore not

applicable.  As a result, 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.

4.    The applicant complains that the disciplinary fines of 500 SFr

each imposed on him by the Federal Court in its decisions of 22 April

1992 breached his right under Article 6 para. 1 (Art. 6-1) of the

Convention to fair and correct proceedings.

      The Government submit, with reference to the judgment of Engel

and others (see Eur. Court H.R., judgment of 8 June 1976, Series A no.

22, p. 35, para. 82), that Article 6 (Art. 6) of the Convention was not

applicable to the proceedings at issue.  Thus, under the relevant Swiss

law, namely Section 31 of the Federal Judiciary Act, the fine was

disciplinary in nature.  Moreover, the nature of the offence was not

criminal in that it only concerned particular persons in specific

proceedings, namely those appearing before the Federal Court, and did

not affect general interests of society.  The degree of severity of the

penalty was also not such as to bring it under the sphere of criminal

law.  The fine was not listed in the criminal register and could not

be replaced by a prison sentence.  Finally, the Government point out

that the applicant had until the end of 1992 filed 287 appeals with the

Federal Court.

      The applicant submits that Article 6 (Art. 6) of the Convention

applied to the proceedings at issue. In his opinion, what is of

relevance is mainly whether he abused his right to lodge the remedies

available to him under the law.  The applicant submits inter alia that

he cannot be made responsible for unlawful judgments handed down by

lower courts, and the Government have not presented any example of the

applicant having abused his rights or acted unlawfully in respect of

the legal remedies which he used.  The applicant refers to other

applicants who have filed more than 1,000 appeals without the Federal

Court having imposed a fine under Section 31 para. 2 of the Federal

Judiciary Act.

      In order to determine whether Article 6 (Art. 6) was applicable

in the present case, the Commission has had regard to the three

alternative criteria laid down in the case-law (see Eur. Court H.R.,

Ravnsborg judgment of 23 March 1994, Series A no. 283-B, paras. 30 et

seq.; judgment of Engel and others, loc. cit.).

      The Commission must first ascertain whether the provision

defining the offence at issue, namely Section 31 of the Federal

Judiciary Act, belongs according to the Swiss legal system to criminal

law.  The Commission notes that, when such conduct as described in

Section 31 occurs, it is for the Federal Court to examine in the

particular case of its own motion and without the involvement of the

public prosecutor whether there has been an offence under that

provision.  Moreover, the provision only deals with offences against

the good order of proceedings before the Federal Court, in particular

malevolent or wanton conduct within the meaning of Section 31 para. 2

of the Federal Judiciary Act.  Finally, the fines at issue were not

entered in the criminal register and could not be replaced by a prison

sentence.

      As a result, the Commission cannot find it established that the

provision concerning sanctions against disturbance of the good order

of court proceedings belongs to criminal law under the Swiss legal

system (see mutatis mutandis Eur. Court H.R., Ravnsborg judgment, loc.

cit., para. 33).

      It is therefore necessary to turn to the second criterion, namely

the very nature of the offence.  The Commission notes that Section 31

applies to persons involved in proceedings before the Federal Court.

This provision does not concern conduct occurring in a different

context or of persons falling outside the circle of people covered by

that provision.  It is for the Federal Court in the particular

proceedings in which the misconduct has occurred to examine of its own

accord whether the misconduct falls foul of Section 31.

      However, such rules enabling a court to sanction disorderly

conduct in proceedings derive from the indispensable power of a court

to ensure the proper and orderly functioning of its own proceedings and

are a common feature of legal systems of Contracting States.  Such

measures come closer to the exercise of disciplinary powers than to the

imposition of a punishment for committing a criminal offence (see Eur.

Court H.R., Ravnsborg judgment, loc cit. para. 34).  The kind of

proscribed conduct for which the applicant was fined thus falls in

principle outside the scope of Article 6 (Art. 6) of the Convention.

      Finally, the nature and degree of severity of the penalty that

the person concerned risked incurring - the third criterion - may bring

the matter into the "criminal" sphere.  However, in the Commission's

opinion, the maximum fine which the applicant risked incurring, i.e.

500 SFr, did not attain a level such as to warrant classification of

the offence as criminal.  The Commission also notes that the fine could

not be replaced by a prison sentence.

      It follows that Article 6 (Art. 6) of the Convention did not

apply to the proceedings at issue.  This part of the application is

therefore incompatible ratione materiae with the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

5.    Insofar as the applicant complains under Article 13 (Art. 13) of

the Convention that he did not have an effective remedy at his

disposal, the Commission finds that no arguable claims have been made

out in relation  to the applicant's complaints under Article 6

(Art. 6) of the Convention (see Eur. Court H.R., Powell and Rayner

judgment of 21 February 1990, Series A no 172, p. 13 et seq., paras 28

et seq.).  The remainder of 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)

 

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