AS TO THE ADMISSIBILITY OF
Application No. 16712/90
by G.M., G.E. and
P.B.
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 13 February 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs.J. LIDDY
Mr.M. PELLONPÄÄ
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 April 1990 by
G.M., G.E. and P.B. against Switzerland and registered on 13 June 1990
under file No. 16712/90;
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 first applicant, born in 1934, is an engineer residing in
Paris. The second applicant, born in 1941, is a businessman residing
in London. The third applicant, born in 1942, is a medical doctor
residing at Como in Italy. All applicants are Italian citizens. Before
the Commission the applicants are represented by Mr. G. Lüthi, a lawyer
practising in Samedan in Switzerland.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The Sud Provizel company, a stock corporation
(Aktiengesellschaft), was founded in 1971 by Swiss citizens; its
purpose was inter alia to acquire real property. The applicants bought
shares in the company and so obtained a proprietorial interest in the
houses acquired by the company. Eventually, they owned 91% of the
shares.
In 1983 the Federal Office of Justice (Bundesamt für Justiz)
informed the company that, contrary to a regulation of the Federal
Council of 1972 (Bundesratsbeschluss), it had obtained real property
in Switzerland with foreign monies without authorisation for which
reason the company was null and void (nichtig).
On 31 October 1983 the Federal Office of Justice introduced an
action with the Maloja District Court (Bezirksgericht), requesting
determination that the Sud Provizel company was null and void. On 29/30
June 1987 the parties agreed to bring the case before the Cantonal
Court (Kantonsgericht) of Graubünden. In these proceedings there were
two rounds of written submissions; both parties agreed not to have an
oral hearing.
On 14 July 1988 the Cantonal Court upheld the action. The Court
found that the Sud Provizel company was null and void, that it was to
be liquidated, and that the proceeds fell to the Canton of Graubünden.
In its decision the Court relied in particular on S.57 para. 3 of the
Swiss Civil Code of 1907 (Zivilgesetzbuch) according to which "if a
legal person is annulled by a court as it has pursued immoral or
illegal aims, the fortune falls to the municipality concerned, even if
it is stated otherwise" ("Wird eine juristische Person wegen Verfolgung
unsittlicher oder widerrechtlicher Zwecke gerichtlich aufgehoben, so
fällt das Vermögen an das Gemeinwesen, auch wenn etwas anderes bestimmt
worden ist").
The appeal of the Sud Provizel company (Berufung) was dismissed
by the Civil Division (Zivilabteilung) of the Federal Court
(Bundesgericht) on 13 October 1989. The Court found, inter alia, that
contrary to the company's view, S.57 para. 3 of the Swiss Civil Code
also applied to stock corporations, and had done so at the time of the
events concerned. The Court thereby referred to its own previous
published case-law.
COMPLAINTS
Under Article 7 of the Convention the applicants complain that
at the time when the real property was acquired there was no law
providing for the confiscation of the company. In fact the legal basis
therefor was only expressly established by a Federal Act on the
acquisition of property by foreigners in 1983; thus, previous to this
Act, S.57 para. 3 of the Swiss Civil Code had no independent
application. In the applicants' case therefore the 1983 Act was applied
retroactively.
Under Article 6 of the Convention the applicants complain that
in the proceedings before the Swiss courts they were never duly heard.
Under Article 1 of Protocol No. 1 the applicants complain of the
confiscation of their property. Under Article 14 of the Convention the
applicants complain that other foreigners in similar situations have
been treated differently and that stock corporations are treated
differently from private persons. The applicants also complain of a
breach of the 1868 Treaty between Switzerland and Italy on
establishment and consular relations.
THE LAW
1. The applicants raise various complaints about the confiscation
of their property under Articles 6, 7 and 14 (Art. 6, 7, 14) of the
Convention. The applicants also rely on Article 1 of Protocol No. 1
(P1-1), and a Treaty between Switzerland and Italy.
2. The Commission considers that the applicants, who were not
parties in the domestic proceedings, own 91% of the shares of the Sud
Provizel company. After the dissolution of the company they can
therefore claim to be victims of the measures complained of, within the
meaning of Article 25 (Art. 25) of the Convention.
3. The applicants complain under Article 1 of Protocol No.1 (P1-1)
of the confiscation of their property. However, Switzerland is not a
Party to Protocol No.1, and 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.
Insofar as the applicants complain of a breach of a Treaty
between Switzerland and Italy the Commission recalls that under Article
19 (Art. 19) of the Convention it is only called upon to examine
compliance with the undertakings of the High Contracting Parties under
the Convention. It follows that this part of the application is
incompatible ratione materiae within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
4.The applicants complain under Article 7 (Art. 7) of the
Convention that at the time when the property was obtained there was
no law providing for confiscation.
However, even assuming that this provision, which concerns
criminal offences, is applicable in the present case, the Commission
notes that in its decision of 13 October 1989 the Federal Court stated
that S.57 of the Swiss Civil Code provided a sufficient and independent
legal basis for the confiscation at issue. The Commission considers
that the Federal Court, which thereby referred to its own previous
case-law, did not exceed the limits of a reasonable interpretation. 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.
5. The applicants complain under Article 6 (Art. 6) of the
Convention that in the domestic proceedings they were not duly heard.
The Commission notes that the applicants have not shown that they
attempted to intervene in the proceedings before the Cantonal Court or
that they obtained a decision of the Federal Court on the complaint
they are now raising before the Commission. The Commission need
nevertheless not decide whether the applicants have complied with the
requirements as to the exhaustion of domestic remedies within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention since the
complaint is in any event inadmissible for the following reasons.
The Commission considers that the company was represented by a
lawyer who before the Cantonal Court had sufficient opportunity to put
forward written submissions, and expressly waived an oral hearing. 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.
6. Insofar as the applicants complain under Article 14 (Art. 14),
taken together with Articles 6 and 7 (Art. 6, 7) of the Convention,
inter alia of discrimination with regard to other foreigners, the
Commission again need not examine whether in this respect the
applicants have complied with the requirements as to the exhaustion of
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention. It considers that the applicants have not sufficiently
substantiated in what respect other situations to which they refer are
comparable to their own situation or that any difference of treatment
was based on any of the grounds of discrimination prohibited by Article
14 (Art. 14) of the Convention. It follows that the remainder of the
application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THIS APPLICATION INADMISSIBLE.
Secretary to the First ChamberPresident of the First Chamber
(M. DE SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy