AS TO THE ADMISSIBILITY OF
Application No. 22814/93
by K. N.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 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
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 23 August 1993 by
K. N. against Switzerland and registered on 25 October 1993 under file
No. 22814/93;
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 applicant, a Swiss citizen born in 1935, is a pig-breeder
residing at Oberbüren in Switzerland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The particular circumstances of the case
On 25 June 1990 the applicant introduced with the Federal Finance
Department (Eidgenössisches Finanzdepartment) a claim for damages
totalling 223,291.50 Sfr. The damages allegedly resulted from seven
Federal Court (Bundesgericht) decisions delivered in 1989 and 1990.
On 17 July 1990 the Finance Department dismissed the claim on the
ground that the Federal Court decisions had become final and their
legality could not be examined in liability proceedings.
On 15 January 1991 the applicant introduced with the Federal
Court a liability action against the Swiss Confederation
(Schweizerische Eidgenossenschaft) in which he claimed the aforesaid
damages. He affirmed, inter alia, that the Federal Court decisions
could not have become final as they were challenged in applications
then pending before the European Commission of Human Rights.
The applicant further requested, with reference to his indigence
which had been recognised by the Federal Court, the waiver of court
fees (unentgeltliche Rechtspflege) and free legal aid
(Rechtsverbeiständung).
He also requested the exclusion of all Federal Court judges and
the examination of his request by an extraordinary chamber pursuant to
Section 26 para. 3 of the Federal Judiciary Act (Bundesgesetz über die
Organisation der Bundesrechtspflege). He considered that all the
Federal Court judges were biased as some of them had allegedly taken
wrong decisions in other proceedings to which he had been a party and
the others would not decide differently because of loyalty to their
colleagues.
On 17 December 1991 the Federal Court informed the applicant that
his case lacked prospects of success since, in 1990, a similar claim
introduced by him had been declared inadmissible and his requests for
legal aid and exclusion of judges had been rejected on that occasion.
The Federal Court held that the allegedly wrong decisions contested by
the applicant had become final despite the applications pending before
the European Commission of Human Rights. It was suggested to the
applicant that he might discontinue his action in which case he would
be charged no fees. On 17 January 1992 he informed the Federal Court
that he maintained his claim.
By decision of 3 May 1993 the Federal Court, consisting of three
judges who had not participated in previous proceedings concerning the
applicant's case, declared inadmissible his challenge of the Federal
Court judges. The Federal Court found that proceedings under Section
26 para. 3 of the Federal Judiciary Act were only applicable in cases
of controversy and not when the reasons adduced were manifestly ill-
founded. It held that a challenge of judges could not be substantiated
by the sole fact of alleged fellowship among judges. The applicant had
not invoked other relevant reasons.
The Federal Court further dismissed the applicant's request for
legal aid. It considered that his action lacked prospects of success
as the legality of final decisions and judgments cannot be examined in
liability proceedings. The applicant was invited to pay advance court
fees of 8,000 SFr by 1 June 1993.
On 28 May 1993 the applicant informed the Federal Court that he
was not able to pay the required sum and reiterated his request for the
judges to be excluded.
By judgment of 6 July 1993 the Federal Court, consisting of the
same judges as on 3 May 1993, declared the applicant's liability action
inadmissible pursuant to Section 150 para. 4 of the Federal Judiciary
Act. It noted that the applicant had not introduced new arguments and
that the advance court fees imposed on him conformed to the scale of
fees as enacted on 1 April 1992. Under these circumstances the Federal
Court decided not to examine the merits of the action and charged the
applicant court fees of 1,000 SFr, i.e. the minimum amount the law
provided for.
The relevant domestic law
According to Section 26 para. 1 of the Federal Judiciary Act, if
the reason adduced for the exclusion of a judge is contested
(streitig), the question of exclusion is to be decided by the chamber
without the participation of the challenged judge. Para. 3 of the same
Section provides for the appointment, if no valid deliberation is
possible because of the number of challenged judges, of the necessary
number of extraordinary judges from among Presidents of the cantonal
Courts of Appeal. The extraordinary judges are appointed by drawing
lots. They decide on the request for exclusion and, if necessary, also
on the merits.
Pursuant to Section 38 of the Federal Judiciary Act, Federal
Court decisions become final (rechtskräftig) upon their delivery
(Ausfällung).
Pursuant to Section 150 para. 1 of the Federal Judiciary Act, a
person who introduces a civil case before the Federal Court must, upon
an order of the President, provide a security for the probable court
fees. According to para. 4 of the same Section, if the security is not
provided within the time-limit, the claim shall be declared
inadmissible.
According to Section 152 para. 1 of the Federal Judiciary Act,
upon request the Federal Court will exempt an indigent party, whose
application does not appear without prospects of success, from paying
the court fees.
The scale of fees for the proceedings before the Federal Court,
as enacted on 1 April 1992, provides for court fees between 8,000 and
20,000 SFr if the value of the subject-matter is between 200,000 and
500,000 SFr.
Liability for damages caused by the Swiss Confederation and her
members of office and civil servants is governed by the Federal
Liability Act (Verantwortlichkeitsgesetz). According to Section 10 of
the Act, the Federal Court shall decide as the only court on disputed
claims. Section 12 of the Act provides that the legality of orders,
decisions and judgments which have formally become final cannot be
examined in liability proceedings.
COMPLAINTS
The applicant complains of the Federal Court's refusal to grant
him legal aid, to exclude all judges and also of the advance court fees
imposed on him. He alleges that he was thereby deprived of a fair
hearing by an impartial tribunal and invokes Article 6 paras. 1 and 3
(c) and (d) of the Convention.
THE LAW
1. The applicant alleges a violation of Article 6 paras. 1 and 3 (c)
and (d) (Art. 6-1, 6-3-c, 6-3-d) of the Convention, which provide, so
far as relevant, as follows:
"1. 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. ...
3. Everyone charged with a criminal offence has the following
minimum rights: ...
c) to defend himself in person or through legal assistance of his
own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require;
d) to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;"
The Commission finds that the applicant's liability action
introduced with the Federal Court aimed at the determination of his
"civil" right over which there was a contestation (cf. N. v.
Switzerland, Comm. Report 14.5.93, paras. 80-85 with further
references, unpublished). It follows that Article 6 para. 1
(Art. 6-1) of the Convention is applicable to the proceedings for
damages which the applicant introduced with the Federal Court.
The Commission further recalls that Article 6 para. 3
(Art. 6-3) of the Convention applies where anyone is "charged with a
criminal offence". However, in the present case no criminal
proceedings were instituted against the applicant and the liability
proceedings which he introduced with the Federal Court did not
determine any criminal charge. It follows that Article 6 para. 3
(Art. 6-3) of the Convention is not applicable to the proceedings at
issue.
2. To the extent that the applicant complains of the Federal Court's
refusal to grant him legal aid and of the imposition of advance court
fees by biased judges, the Commission recalls that Article 6 para. 1
(Art. 6-1) of the Convention embodies the right to a court, of which
the right of access, that is the right to institute proceedings before
courts in civil matters, 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
(No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107). According to the
Commission's case-law, the right to free legal aid in civil cases is
not as such included among the rights and freedoms guaranteed by the
Convention and, furthermore, free legal aid, or the waiver of
courtcosts, can be made dependent on the prospects of success of the
proceedings (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95; No. 10594/83,
Dec. 14.7.87, D.R. 52 p. 158).
Further, when the State regulates access to court, it must not
restrict the access to such an extent that the very essence of the
right is impaired; and the limitation will not be compatible with
Article 6 para. 1 (Art. 6-1) of the Convention if it does not pursue
a legitimate aim and if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
achieved (see the principles summarised in Eur. Court H.R., Fayed
judgment of 21 September 1994, Series A no. 294-B, para. 65).
The Commission notes that in the present case the applicant was
charged advance court fees of 8,000 SFr, i.e. the minimum amount
provided for on the scale of fees then applicable. The applicant's
requests for legal aid and for the waiver of court fees were dismissed
as his action lacked prospects of success. The Federal Court in its
letter of 17 December 1991 and decision of 3 May 1993 informed the
applicant why his action, like his previous similar action, lacked
prospects of success and the Commission does not find the reasons
adduced arbitrary.
To the extent that the applicant alleges bias on the part of the
participating judges who limited his access to court (by imposing a
requirement that he pay advance court fees), the Commission considers
that clear evidence of bias on the part of the authority which limits
access to court could well be a relevant consideration in determining
whether a limitation is proportionate to the aim pursued.
The Federal Court in the applicant's case, however, consisted of
three judges who had not participated in the previous proceedings
concerning the applicant's case. They declared his request for the
exclusion of all Federal Court judges inadmissible on the ground that
a challenge of judges cannot be substantiated by the sole fact of
alleged fellowship among judges.
In these circumstances, the Commission finds that the applicant
has not substantiated his allegation of bias, and that the refusal to
grant him legal aid and the imposition of advance court fees on him
represented the regulation of his access to court which 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.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy