AS TO THE ADMISSIBILITY OF
Application No. 34920/97
by Josef MÜLLER
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. S. TRECHSEL
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, 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 21 January 1997
by Josef Müller against Switzerland and registered on 14 February 1997
under file No. 34920/97;
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 1924, is a businessman
residing in Zürich.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 16 December 1994 the applicant introduced a private criminal
action (Privatstrafklage) against 14 persons, inter alia, on account
of fraud, abuse of office and defamation (ehrverletzende
Beschuldigungen).
On 4 August 1995 the Winterthur District Court (Bezirksgericht)
refused to admit the action, inter alia, as the applicant had failed
to demonstrate any criminal act on the part of the persons concerned
or as the prescription period for the alleged offences had expired
(verjährt).
The applicant's appeal (Rekurs) was dismissed by the Court of
Appeal (Obergericht) of the Canton of Zürich on 5 December 1995. His
plea of nullity (Nichtigkeitsbeschwerde) was declared inadmissible by
the Court of Cassation (Kassationsgericht) of the Canton of Zürich on
21 May 1996.
The applicant filed a public law appeal (staatsrechtliche
Beschwerde) which the Federal Court (Bundesgericht) declared
inadmissible on 23 August 1996 as the applicant had failed to comply
with the statutory requirements for filing such an appeal.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention of the
various proceedings and their outcome. He complains in particular that
his criminal action was not admitted. He further complains, inter
alia, of a lack of access to court; that he was neither properly nor
publicly heard; and that he did not have a "tribunal established by
law" within the meaning of Article 6 of the Convention.
2. Under Article 8 of the Convention the applicant complains that
his honour was not sufficiently protected by the domestic authorities.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention of the various proceedings and their outcome.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its established
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18, pp. 31, 45).
It is true that in this case the applicant also raises various
complaints under Article 6 para. 1 (Art. 6-1) Convention about the
conduct of the proceedings. This provision states, insofar as
relevant:
"1. In the determination 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 recalls that in principle the Convention does not
guarantee a right to institute criminal proceedings against third
persons and that as a general rule the relevant proceedings do not fall
to be examined under Article 6 (Art. 6) of the Convention. However,
Article 6 (Art. 6) is applicable when a "civil right" is at issue, e.g.
when, as in the present case, a private prosecution is introduced in
order to allow the applicant to protect his reputation (see Eur. Court
HR, Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A,
p. 14, para. 29).
a) Insofar as the applicant complains that he was neither properly
nor publicly heard and that he did not have a "tribunal" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the
Commission notes that the Federal Court declared the applicant's public
law appeal inadmissible for non-compliance with the statutory
requirements for filing such an appeal. However, according to the
Commission's case-law, there is no exhaustion of domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention where a
domestic appeal is not admitted because of a procedural mistake (see
No. 6878/75, Dec. 6.10.76, Le Compte v. Belgium, D.R. 6, p. 79).
This part of the application must, therefore, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
b) Insofar as the applicant may be understood as complaining of a
lack of access to court within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention, in particular as his private criminal
action for defamation was not admitted, the Commission notes the
various reasons given herefor by the domestic authorities. It cannot,
therefore, be said that the domestic authorities restricted or reduced
the access left to the applicant in such a way or to such an extent
that the very essence of his right of access to court was impaired (see
Eur. Court HR, Philis v. Greece judgment of 27 August 1991, Series A
no. 209, p. 21, para. 60).
This part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant also relies on Article 8 (Art. 8) of the
Convention, the Commission finds no issue under this provision. The
remainder of the application is, therefore, 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 THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy