KÜBLI v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 17495/90

                      by Peter KÜBLI

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting in

private on 2 December 1992, the following members being present:

             MM.  G. JÖRUNDSSON, Acting President of the Second Chamber

                  S. TRECHSEL

                  A. WEITZEL

                  J.-C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs. G. H. THUNE

             MM.  F. MARTINEZ

                  L. LOUCAIDES

                  J.-C. GEUS

             Mr.  K. ROGGE, Secretary to the Second 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 28 September 1990 by

Peter KÜBLI against Switzerland and registered on 27 November 1990 under

file No. 17495/90;

      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 1954, is a lawyer residing at

Küsnacht in Switzerland.

Particular circumstances of the case

      The applicant had the "P.K. Lawsoft" company registered in the Zurich

Commercial Register (Handelsregister).

      On 5 April 1989 the B. company introduced before the Zurich Commercial

Court (Handelsgericht) an action against the applicant, claiming 20,702.55

SFr.  The action related inter alia to the "P.K. Lawsoft" company.

      On 18 July 1989 the entry of this company in the Commercial Register

was deleted.

      The applicant filed an objection against the action, claiming that the

court lacked jurisdiction ratione materiae (sachliche Zuständigkeit).  On

23 August 1989 the Zurich Commercial Court dismissed the objection, inter

alia as at the time when the action was filed the applicant's company had

been registered in the Commercial Register.

      The applicant filed a plea of nullity with the Zurich Court of

Cassation (Kassationsgericht), claiming that according to Section 188 of

the Zurich Code of Civil Procedure the Commercial Court should have based

its ruling on the circumstances prevailing on the day of its decision, i.e.

23 August 1989 (see below, Relevant domestic law); however, the company was

then no longer registered for which reason the Commercial Court lacked

jurisdiction.

      The plea of nullity was dismissed by the Court of Cassation on 16

November 1989.  The Court found inter alia:

           "In respect of the jurisdiction ratione loci the Code of Civil

      Procedure expressly states that the court's jurisdiction is determined

      according to the circumstances at the time when the action is filed

      (Section 16 of the Code of Civil Procedure).  The jurisdiction ratione

      materiae is examined by the Court ex officio when the action is filed

      (Section 108 of the Code of Civil Procedure).  The principle of

      perpetuatio fori also applies to the jurisdiction ratione materiae;

      after an action has been filed does not cease to exist

      because of a change of circumstances which have determined the

      jurisdiction...  This applies in particular to the deletion of the

      entry of a party in the Commercial Register..."

           "Für die örtliche Zuständigkeit statuiert die

      Zivilprozessordnung ausdrücklich, dass sich der Gerichtsstand nach den

      Verhältnissen zur Zeit, da die Klage rechtshängig wird, bestimmt (§

      16 ZPO).  Die sachliche Zuständigkeit wird vom Gericht im Zeitpunkt

      der Rechtshängigkeit von Amtes wegen geprüft (§ 108 ZPO).  Der

      Grundsatz der perpetuatio fori gilt sodann auch für die sachliche

      Zuständigkeit; nach Eintritt der Rechtshängigkeit fällt diese durch

      Veränderung der Umstände, welche sie begründet haben, nicht mehr dahin

      ... Dies gilt insbesondere auch für den Wegfall des Eintrags einer

      Partei im Handelsregister..."

      The applicant then filed an appeal (Berufung) and a public law appeal

      (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).  The

      Federal Court rejected the appeal on 17 November 1989 as being

      inadmissible.

      On 15 March 1990 the Federal Court dismissed the public law appeal,

agreeing with the interpretation of the Zurich Code of Civil Procedure by

the Court of Cassation.  In the Court's opinion, the previous instance had

not decided arbitrarily.  The Court's decision was served on the applicant

on 30 March 1990.

Relevant domestic law

      According to Section 16 of the Zurich Code of Civil Procedure, a

court's jurisdiction ratione loci (Gerichtsstand) is determined by the

circumstances at the time when an action is filed (da die Klage

rechtshängig wird).  According to Section 188 of the Code, the court shall

base its decision on the facts as they exist at the time when the final

decision is given.

COMPLAINTS

1.    The applicant complains that the Swiss courts breached his right to

a "tribunal established by law" within the meaning of Article 6 para. 1 of

the Convention by assuming that the Zurich Commercial Court was competent

to decide the action brought against him. The competent court should have

been the Meilen District Court.  The applicant submits that there is no

provision in the Zurich procedural law according to which jurisdiction

ratione materiae continues on the basis of the circumstances prevailing

when the action was filed.  The application of Section 16 of the Zurich

Code of Civil Procedure to his case in fact amounted in essence to judicial

legislation.

2.    The applicant complains under Article 13 of the Convention that he did

not have an effective remedy in that the Federal Court only examined

whether the previous decision had been arbitrary (Willkürprüfung).

THE LAW

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

Convention that there was no legal provision in the Zurich procedural law

providing in his case for the jurisdiction ratione materiae of the Zurich

Commerical Court.  Rather, the competent court should have been the Meilen

District Court.

      According to the Commission's case-law, it is the purpose of the

requirement in Article 6 para. 1 (Art. 6-1) of the Convention that courts

shall be "established by law" that the judicial organisation in a

democratic society must not depend on the discretion of the Executive, but

that it should be regulated by law emanating from Parliament.  Moreover,

the term "a tribunal established by law" in Article 6 para. 1 (Art. 6-1)

envisages the whole organisational set-up of the courts, including not only

the matters coming within the jurisdiction of a certain category of courts,

but also the establishment of the local courts, and the determination of

their local jurisdiction (see Zand v. Austria, Comm. Report 12.10.78, para.

69, D.R. 15 p. 80).

      However, Article 6 (Art. 6) does not grant the defendant a right to

choose the jurisdiction of a court.  In this respect, the Commission's task

is limited to examining whether reasonable grounds existed for the

authorities to establish the jurisdiction (see No. 16875/90, Dec. 10.10.90,

to be published in D.R.).

      In the present case, the Commission notes that when the action was

filed against the applicant, the company was registered in the Zurich

Commercial Register.  According to Section 108 of the Zurich Code of

Criminal Procedure, the jurisdiction ratione materiae of the Zurich

Commercial Court was thus established.  Subsequently, the entry of the

applicant's company in the Commercial Register was deleted.  The Commercial

Court nevertheless regarded itself as competent to deal with the action.

      The Commission observes that the Swiss courts, when interpreting the

Zurich Code of Criminal Procedure and determining the jurisdiction of the

Zurich Commercial Court, relied on the principle of perpetuatio fori, well

known in the legal systems of the Convention States.  The Commission does

not find it unreasonable that the Swiss courts considered that the

principle of perpetuatio fori also applied with regard to jurisdiction

ratione materiae, in particular in that, after an action had been filed and

such jurisdiction had been established, it did not cease to exist where the

defendant was no longer listed in the Commercial Register.

      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.

2.    Under Article 13 (Art. 13) of the Convention the applicant complains

that he did not have an effective remedy in that the Federal Court only

examined whether the previous decision had been arbitrary.

      However, even assuming that the applicant has an arguable claim to be

the victim of a violation of the rights set forth in the Convention, the

Commission finds that the applicant's complaints are directed against the

decisions of three courts, namely of the Zurich Commercial Court of 23

August 1989, the Zurich Court of Cassation of 16 November 1989, and the

Federal Court of 15 March 1990.

      It follows that a remedy against a violation of the Convention

allegedly committed by these courts would require the possibility to appeal

against their judgments.  However, the right to appeal is not as such

guaranteed by Article 13 (Art. 13) of the Convention, and this provision

cannot as a rule be relied upon in circumstances where the alleged

violation of the Convention lies in the decision of a court (see Nos.

12629/87 and 13965/88, S. v. Switzerland, Dec. 9.11.89, to be published in

D.R.).

      The remainder of the application must therefore also be declared

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     Acting President of the Second Chamber

         (K. ROGGE)                         (G. JÖRUNDSSON)

 

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