EUROPEAN COMMISSION OF HUMAN RIGHTS
Application Nos. 1) 15252/89 2) 15628/89
3) 17384/90
N.
against
Switzerland
REPORT OF THE COMMISSION
(adopted on 14 May 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 16). . . . . . . . . . . . . . . . . . . . . 1
A. The applications
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 11). . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12 - 16) . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17 - 50) . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 17 - 50) . . . . . . . . . . . . . . . . . 4
1. Proceedings instituted against the
Canton of St. Gallen in 1983
(paras. 17 - 38). . . . . . . . . . . . . . . 4
a) Proceedings between 1966 and 1982
(paras. 17 - 19). . . . . . . . . . . . 4
b) Responsibility action of 1983
(paras. 20 - 38). . . . . . . . . . . . 4
2. Proceedings instituted against the
Swiss Confederation
(paras. 39 - 43). . . . . . . . . . . . . . . 6
B. Relevant domestic law
(paras. 44 - 50) . . . . . . . . . . . . . . . . . 7
1. Federal Judiciary Act (Organisationsgesetz)
(paras. 44 - 47). . . . . . . . . . . . . . . 7
2. Federal Responsibility Act
(Verantwortlichkeitsgesetz)
(para. 48). . . . . . . . . . . . . . . . . . 8
3. Responsibility Act of the Canton of
St. Gallen
(paras. 49 - 50). . . . . . . . . . . . . . . 8
III. OPINION OF THE COMMISSION
(paras. 51 - 99). . . . . . . . . . . . . . . . . . . .10
A. Complaints declared admissible
(para. 51) . . . . . . . . . . . . . . . . . . . .10
B. Points at issue
(para. 52) . . . . . . . . . . . . . . . . . . . .10
C. Proceedings instituted against the
Canton of St. Gallen
(paras. 53 - 77) . . . . . . . . . . . . . . . . .10
1. Applicability of Article 6 para. 1
of the Convention
(paras 54 - 62) . . . . . . . . . . . . . . .10
2. Relevant criteria in the application of
Article 6 para. 1 of the Convention
(para. 63). . . . . . . . . . . . . . . . . .11
3. Compliance with Article 6 para. 1 of
the Convention
(paras. 64 - 76). . . . . . . . . . . . . . .11
Conclusion
(para. 77) . . . . . . . . . . . . . . . . . . . .13
D. Imposition of court costs in advance
(paras. 78 - 97) . . . . . . . . . . . . . . . . .13
1. Applicability of Article 6 para. 1
of the Convention
(paras. 79 - 86). . . . . . . . . . . . . . .13
2. Compliance with Article 6 para. 1
of the Convention
(paras. 87 - 96). . . . . . . . . . . . . . .14
Conclusion
(para. 97). . . . . . . . . . . . . . . . . .16
E. Recapitulation
(paras. 98 - 99) . . . . . . . . . . . . . . . . .16
JOINT CONCURRING OPINION OF MM. GEUS AND MARXER . . . . . . . . . .17
JOINT DISSENTING OPINION of MM. BUSUTTIL, GÖZÜBÜYÜK,
WEITZEL, SCHERMERS, DANELIUS, Mrs. THUNE and Mr. ROZAKIS. . . . . .18
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .19
APPENDIX II : PARTIAL DECISION ON THE ADMISSIBILITY OF
8 APRIL 1991 . . . . . . . . . . . . . . . . . .21
APPENDIX III : DECISION ON THE ADMISSIBILITY OF
11 MAY 1992. . . . . . . . . . . . . . . . . . .34
APPENDIX IV : DECISION ON THE ADMISSIBILITY OF
13 May 1993 . . . . . . . . . . . . . . . . . . 45
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The applications
2. The applicant, a Swiss citizen born in 1935, is a pig-breeder
residing at Oberbüren in Switzerland.
3. The applications are directed against Switzerland. The
Government are represented by their Agent, Mr. O. Jacot-Guillarmod,
Deputy Director of the Federal Office of Justice, and their Deputy
Agent, Mr. Ph. Boillat, Head of the European Law and International
Affairs Section of the Federal Office of Justice.
4. The applicant complains under Article 6 para. 1 of the Convention
about the length of proceedings instituted against the Canton of
St. Gallen; and about advance court costs which he was asked to pay.
He also complained under Article 6 para. 1 of the Convention about the
length of criminal proceedings instituted against him (cf. para. 10
below).
B. The proceedings
5. The applicant originally filed six applications which were
introduced as follows: 1) No. 15252/89 on 23 April 1987;
2) No. 15628/89 on 25 July 1989; 3) No. 15629/89 on 18 May 1989;
4) No. 15630/89 on 18 May 1989; 5) No. 15857/89 on 3 October 1989; and
6) No. 17384/90 on 10 September 1990.
6. These applications were registered as follows: 1) 20 July 1989;
2) 4 October 1989; 3) 16 October 1989; 4) 16 October 1989;
5) 4 December 1989; and 6) 31 October 1990.
7. On 8 April 1991 the Commission decided to join the applications;
to communicate them in so far as they concerned complaints raised in
three applications (Nos. 15252/89, 15628/89 and 17384/90) about the
length of the proceedings instituted against the Canton of St. Gallen,
the length of the criminal proceedings instituted against the
applicant, and the court costs of 6,500 SFr which the applicant was
asked to pay in the proceedings against the Swiss Confederation; and
to declare inadmissible the remainder of the applications.
8. The Government's observations were received by letter dated
19 July 1991; the applicant's observations were dated
18 September 1991.
9. On 11 May 1992 the Commission declared Applications
Nos. 15252/89, 15628/89 and 17384/90 admissible.
10. In additional observations of 10 July 1992 the Government
submitted that the applicant had in fact not raised before the
Commission a complaint about the criminal proceedings instituted
against himself; and that he had not complied with the requirements of
the exhaustion of domestic remedies within the meaning of Article 26
of the Convention in respect of these proceedings and the proceedings
instituted against the Canton of St. Gallen.
Insofar as the Government maintained that the applicant had
failed to exhaust domestic remedies, the Commission found no basis for
applying Article 29 of the Convention.
Insofar as the Government maintained that the applicant had not
complained about the length of the criminal proceedings instituted
against himself, the Commission has obtained further submissions from
the parties and by decision of 13 May 1993 rejected this part of the
applications under Article 29 of the Convention.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly
settlement. In the light of the parties' reaction, the Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
J.-C. GEUS
M. P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOVICKI
13. The text of this Report was adopted on 14 May 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I, the Commission's decisions
on the admissibility of the applications as Appendices II, III and IV.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. Proceedings instituted against the Canton of St. Gallen in 1983
a) Proceedings between 1966 and 1982
---------------------------------
17. In 1965/1966 the applicant's pigs became ill and had to be
killed. The applicant was of the opinion that the illness had been
caused by manure which had entered the drinking water supply. In 1966
he unsuccessfully introduced an action against the Oberbüren municipal
and water corporation, claiming damages of 150,000 SFr. Following
further appeals, the St. Gallen Cantonal Court (Kantonsgericht) in 1975
upheld the action to the amount of 85,844 SFr.
18. On 24 June 1981 the applicant introduced a first responsibility
action (Verantwortlichkeitsklage) against the Canton of St. Gallen,
claiming damages of 653,273.60 SFr on account of the long duration of
the previous proceedings. The action was dismissed on 10 December 1982
by the Federal Court (Bundesgericht) on account of forfeiture
(Verwirkung).
19. Between 1971 and 1978 bankruptcy proceedings were conducted
against the applicant.
b) Responsibility action of 1983
-----------------------------
20. On 12 December 1983 the applicant introduced with the Federal
Court a responsibility action under Section 42 of the Federal Judiciary
Act (see below, Relevant domestic law), numbering three pages, against
the Canton of St. Gallen. He complained inter alia that the
bankruptcy authorities had carelessly conducted the bankruptcy
proceedings against him and claimed damages of 1,505,156.85 SFr.
21. On 6 January 1984 the Federal Court invited the applicant to
consult a lawyer and to introduce an improved action. Mr. T., a
lawyer, then represented the applicant. On 6 February, 28 March and
7 May 1984 T. asked for a prolongation of the time-limit to file the
improved action.
22. On 7 May 1984 T. also filed a request for legal aid (Armenrecht).
In a letter of 25 May 1984 the Court informed the applicant that it saw
no responsibility of the Canton of St. Gallen for the damages claimed.
On 25 June 1984 the applicant informed the Federal Court that T. no
longer represented him; the applicant also requested a prolongation of
the time-limit. A further request for prolongation was filed on
20 August 1984.
23. On 3 September 1984 the applicant filed an improved action,
numbering 110 pages, in which he claimed 1,320,783.20 SFr. Therein he
complained inter alia of the continuing damaging conduct of the
St. Gallen authorities. He alleged in particular that until 1983 he
had not been able to consult the various documents, for instance the
minutes of the bankruptcy proceedings and the final statement of the
account (Schlussabrechnung); he also alleged that the bankruptcy
administration had failed to raise certain claims for damages arising
out of the applicant's bankruptcy (Folgeschaden) against a municipality
and water corporation.
24. The Court held a preparatory hearing on 20 February 1985 at which
the applicant was present. On 26 February 1985 the Court granted the
applicant legal aid and, upon his request, appointed H. as his lawyer.
25. On 23 August 1985, following a settlement with his previous
lawyers against whom he had introduced claims, the applicant withdrew
various claims against the Canton of St. Gallen amounting to
653,273.60 SFr from his above action.
26. Thereupon, the applicant unsuccessfully attempted to negotiate
a friendly settlement with the Canton of St. Gallen.
27. On 6 August 1986 B., a substitute for the lawyer H., introduced
with the Federal Court a further improved action. Therein he claimed
under Item No. (1) 256,501.40 SFr damages for the harm caused by the
polluted drinking water to the applicant's pig-breeding. Under
Items Nos. (2) - (4) he further requested approximately 400,000 SFr.
28. On 11 August 1986 the Federal Court invited the Canton of
St. Gallen to reply to the action before 30 September 1986. The
time-limit was prolonged. On 30 September 1986 the Federal Court
decided to limit the proceedings to Item No. (1) of the applicant's
action of 6 August 1986. The Canton of St. Gallen filed its reply on
15 December 1986.
29. On 23 October 1987 H. informed the Federal Court that the
applicant had withdrawn his power of attorney. By letter of
2 November 1987 the Federal Court replied that in view of the
conditions of legal aid granted on 26 February 1985 this was not
possible. On 26 November 1987 the Court rejected the applicant's
request for a new lawyer.
30. On 15 December 1987, at a preparatory hearing, the parties could
not agree on a friendly settlement. The Court then requested the
parties to submit further written statements.
31. On 1 February 1988 the applicant requested suspension of the
proceedings as the diet of the Canton of St. Gallen was dealing with
the case. This was refused by the Court on 19 February 1988. H. then
asked for a prolongation of the time-limit for filing a further
statement.
32. The applicant filed his statement on 18 April 1988. He then
wrote to the Court on 27 May 1988, insisting on the withdrawal of H.'s
power of attorney. On 31 May 1988 H. filed a separate statement. On
11 July 1988 the applicant complained to the Court that he had received
no reply to his letter of 27 May 1988, and that the proceedings lasted
too long.
33. The Canton of St. Gallen filed its reply on 22 August 1988. On
2 September 1988 the written proceedings were closed.
34. Following a hearing on 25 September 1988 the Federal Court
dismissed the applicant's action on 25 October 1988. The judgment
numbering ten pages was served on the applicant on 18 November 1988.
Therein the Court found that in view of the legal aid granted to the
applicant on 26 February 1985 it could not consider the submissions
filed by the applicant on 18 April 1988.
35. In its decision the Court considered that the action had to be
dismissed as the Canton of St. Gallen lacked standing. In particular,
according to the 1980 Additional Act there was no primary
responsibility of the Canton of St. Gallen for acts of bankruptcy
officials at the time of the damaging conduct complained of. Before
the Additional Act entered into force, responsibility proceedings had
to be primarily directed against the officials concerned, and only
subsidiarily against the Canton. The Court saw no indication of a
continuing damaging conduct of the bankruptcy authorities after the
Additional Act entered into force.
36. A further decision of the Federal Court of 25 October 1988
concerned legal aid. The Court noted therein that it had dismissed the
applicant's claims as to Item No. (1) of his ameliorated action of
6 August 1986. The remaining items lacked prospects of success inter
alia as certain issues had definitively been decided on
10 December 1982. As a result, the legal aid granted to the applicant
was withdrawn. The Court requested the applicant to pay advance costs
of 6,000 SFr. If this sum was not paid, the Court threatened to
declare inadmissible the remaining items of the applicant's action.
37. By letter of 16 December 1988 the applicant wrote to the Federal
Court that he did not have the means to pay the sum of 6,000 SFr.
38. On 6 January 1989 the Federal Court declared inadmissible the
remaining items of the applicant's action on the ground that he had
failed to pay the costs in advance.
2. Proceedings instituted against the Swiss Confederation
39. Following the decision of the Federal Court of 25 October 1988
(see above, para. 34), the applicant introduced with the Federal
Finance Department (Eidgenössisches Finanzdepartement) a claim for
damages, resulting from the Court's decision. The Department dismissed
the claim on 23 March 1989.
40. The applicant then introduced with the Federal Court a
responsibility action against the Swiss Confederation (Schweizerische
Eidgenossenschaft) in which he claimed damages amounting to
671,554.90 SFr. The applicant also challenged certain Federal Court
judges, and requested legal aid. In his action of 24 pages the
applicant alleged that the decision of the Federal Court of
25 October 1988 had been wrong in fact and in law. The applicant also
complained of the length of the proceedings, approximately five years,
alleging "obstruction of the proceedings" ("Prozessverschleppung") and
"infinite sloppiness" ("grenzenlose Schlamperei"). He complained of
damaging conduct on behalf of the Federal Court in that this length
prevented him from introducing proceedings against the Cantonal
authorities in time.
41. By decision of 14 December 1989 the Federal Court, consisting of
three judges, dismissed the applicant's challenge of Federal Court
judges. It further dismissed his request for legal aid. With
reference to Section 12 of the Federal Responsibility Act (see below,
Relevant domestic law) it found that the previous decisions of the
Federal Court had become definitive, and their legality could not be
examined in responsibility proceedings. The action a priori lacked
prospects of success (erscheint von vorneherein aussichtslos), and the
applicant was invited to pay advance court costs of 6,500 SFr.
42. The applicant then requested the reopening of the previous
proceedings. On 6 March 1990 the Federal Court rejected this request
and again invited the applicant to pay advance court costs amounting
to 6,500 SFr.
43. In a further decision of 4 May 1990 the Federal Court noted that
the applicant had failed to pay the advance court costs and declared
his action inadmissible.
B. Relevant domestic law
1. Federal Judiciary Act (Organisationsgesetz)
44. According to Section 42 of the Federal Judiciary Act the Federal
Court decides as the only court in civil litigation between Cantons and
private persons.
45. Section 153 of the Federal Judiciary Act concerns court costs.
According to para. 1 b) the costs will vary as a rule between 200 and
20,000 SFr, depending on the special circumstances of the case, e.g.
its particular volume or complexity.
46. Section 150 para. 1 of the Federal Judiciary Act provides:
"Whoever calls upon the Federal Court in civil cases must, upon an order of the President, provide a security for the probable court costs (Section 153); for particular reasons, this security may exceptionally be waived in part or completely." "In der Zivilrechtspflege hat, wer das Bundesgericht anruft, nach Anordnung des Präsidenten die mutmasslichen Gerichtskosten (Art.153) sicherzustellen; ausnahmsweise kann aus besonderen Gründen diese Sicherstellung ganz oder teilweise erlassen werden." 47. Section 152 para. 1 of the Federal Judiciary Act states: "Upon request the Federal Court will exempt an indigent party, whose application does not appear without prospects of success, from paying the court costs ..." "Das Bundesgericht gewährt einer bedürftigen Partei, deren Rechtsbegehren nicht aussichtslos erscheint, auf Antrag Befreiung von der Bezahlung der Gerichtskosten ..." 2. Federal Responsibility Act (Verantwortlichkeitsgesetz) 48. The Federal Responsibility Act regulates the responsibility for damages of the Confederation and her members of office and civil servants. Section 1 states that the Act is applicable to members of the Federal Court. According to Section 3 of the Act, the Confederation becomes liable to compensate damage which a civil servant causes illegally to third persons while exercising his official duties (in Ausübung seiner amtlichen Tätigkeit Dritten widerrechtlich zufügt). Section 10 of the Act provides that the Federal Court shall decide as the only court on disputed claims. Section 12 states: "The legality of orders, decisions and judgments which have formally obtained legal force cannot be examined in responsibility proceedings." "Die Rechtmässigkeit formell rechtskräftiger Verfügungen, Entscheide und Urteile kann nicht in einem Verantwortlichkeitsverfahren überprüft werden." 3. Responsibility Act of the Canton of St. Gallen 49. According to Section 13 para. 1 of the Responsibility Act of the Canton of St. Gallen in force until 1980, bankruptcy officials were primarily responsible for their conduct in office; the Canton was only subsidiarily responsible. 50. According to Section 13 para. 2 (d) of the 1980 Additional Act (Nachtragsgesetz) the Canton or the municipality is directly responsible to compensate damage which bankruptcy officials cause to third persons. The Additional Act entered into force on 4 December 1980. Section 13 para. 2 is also applicable if the damage was caused before 4 December 1980, as long as the damaging conduct (schädigende Handlung) continued after the entry into force of the Act. III. OPINION OF THE COMMISSION A. Complaints declared admissible 51. The Commission has declared admissible the applicant's complaints about the length of the proceedings instituted against the Canton of St. Gallen; and the court costs which he was asked to pay in advance. B. Points at issue 52. Accordingly, the issues to be determined are whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention: - in respect of the length of the proceedings instituted against the Canton of St. Gallen; - in respect of the court costs which the applicant was asked to pay in advance. C. Proceedings instituted against the Canton of St. Gallen 53. The applicant complains that the proceedings which he instituted against the Canton of St. Gallen were not terminated within a reasonable time. He relies on Article 6 para. 1 (Art. 6-1) of the Convention which includes the following provision: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..." 1. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention 54. The Commission must first examine whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue. This has not been contested by the parties. 55. Article 6 para. 1 (Art. 6-1) of the Convention extends to "contestations" (disputes) over "civil rights" which can be said, at least on arguable grounds, to be recognised under domestic law (see Eur. Court H.R., Editions Périscope judgment of 26 March 1992, Series A no. 234-B, para. 35). 56. As to the issue whether the applicant could claim a "right" under domestic law, the Commission notes that the Responsibility Act of the Canton of St. Gallen envisages since 1980 a responsibility action against the Canton in case of damage alleged to be caused by the bankruptcy officials. It also envisages the possibility of an action against the Canton of St. Gallen in the case of damage caused before 1980, where the damaging conduct continued after the entry into force of the revised law (see above, paras. 49 et seq.). 57. In the present case, the applicant filed a responsibility action against the Canton of St. Gallen. Insofar as he was complaining about acts committed before the revised Responsibility Act entered into force in 1980, he should have filed his action against the bankruptcy officials concerned. Nevertheless, the applicant also alleged that the damaging conduct of the bankruptcy officials continued after the entry into force of the revised law. 58. It is not for the Commission to examine the prospects of success of an action brought on these grounds (see Eur. Court H.R., Editions Périscope judgment, loc. cit., para. 38). It suffices to note that the applicant was complaining of continuing damaging conduct by the bankruptcy officials, and that the revised Responsibility Act envisages in such cases the responsibility of the Canton of St. Gallen. 59. Thus, the "right" claimed by the applicant could be said, at least on arguable grounds, to be recognised under domestic law. 60. As to the "civil" nature of the claim, Section 42 of the Federal Judiciary Act expressly refers to the "civil" character of the litigation at issue (see above, para. 52). Moreover, the action which concerned damages was "pecuniary" in nature (see Eur. Court H.R., Editions Périscope judgment, loc. cit., para. 40). The right in question was therefore a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 61. Finally, the Commission considers that in the present case there was a "contestation" (dispute) concerning the existence of the right claimed by the applicant. 62. It follows that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue. 2. Relevant criteria in the application of Article 6 para. 1 (Art. 6-1) of the Convention 63. The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 17, para. 28). 3. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention 64. The applicant submits in respect of the proceedings which he introduced against the Canton of St. Gallen that, even if the file was voluminous, the case could not be considered complex. He points out that the Federal Court often did not speedily decide on his requests, for instance to be granted legal aid; it also waited two years before transmitting his statement of 3 September 1984 to the opposite party. 65. The Government submit that these proceedings were conducted within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention. The applicant was largely responsible for any delay by requesting five times in 1984 and once in 1988 a prolongation of time-limits for filing a statement. The frequent change of lawyers also slowed down proceedings. The Federal Court afforded the applicant's case particular care, for instance by drawing his attention to the possibility of improving his action. It attempted to accelerate the proceedings while having due regard to the applicant's rights. 66. The Commission notes that the applicant introduced his responsibility action before the Federal Court on 12 December 1983 (see above, para. 20). Improved actions were introduced on 3 September 1984 and 6 August 1986. The Court dismissed part of the action on 25 October 1988 and declared the remainder inadmissible on 6 January 1989 (see above, paras. 34 et seq.). 67. The proceedings thus lasted from 12 December 1983 until 6 January 1989, i.e. a period of five years and 25 days. However, the Commission notes that during this period the applicant had to reformulate his actions. 68. As regards the complexity of the case, the Commission notes that in his action for damages the applicant complained about damaging conduct of bankruptcy officials. On 25 May 1984 the Federal Court informed the applicant that the Canton of St. Gallen could not be made responsible for the damages claimed (para. 22 above). It dismissed part of the applicant's action on 25 October 1988 on the ground that it saw no continuing damaging conduct on the part of the bankruptcy officials concerned, and that the Canton of St. Gallen could not therefore be made responsible for his claims. In its judgment of 6 January 1989 the Court dismissed the remainder of the action as the applicant had failed to pay court costs in advance. 69. Thus, the complexity of the issues dealt with by the Federal Court contributed to some extent to the length of the proceedings. 70. As regards the applicant's conduct, the Commission notes that his original action was badly formulated, and that subsequently he filed improved actions. Moreover, on five occasions in 1984 the applicant requested a prolongation of the time-limit to file the improved action; in 1988 he requested the suspension of the proceedings and a further prolongation of a time-limit to file a statement. In 1984 and 1987 the applicant withdrew his lawyer's power of attorney. The applicant was also involved in settlement negotiations (see above, paras. 25 et seq.) 71. It follows that the applicant's behaviour contributed to the length of the proceedings. 72. As regards the conduct of the authorities, the applicant has referred to one particular period of inactivity of the Federal Court. Thus, he claims that the Court waited two years until it transmitted his statement of 3 September 1984 to the opposite party. 73. The Commission notes that, after the applicant filed his improved action on 3 September 1984, the Federal Court held a preparatory hearing on 20 February 1985. On 26 February 1985, it granted the applicant legal aid and appointed a lawyer (see above, para. 24). The period thereafter can be explained by the fact that the applicant was involved in settlement negotiations (paras. 25 and 26, above). 74. However, once the applicant's lawyer introduced a further improved action with the Federal Court on 6 August 1986 (see above, para. 27), the Court obviously concluded that the applicant no longer intended to pursue the settlement negotiations and that it could continue examination of the case. As a result, the applicant's action was communicated to the Canton of St. Gallen on 11 August 1986. 75. The Commission further notes the Federal Court's endeavours to ensure that the applicant, a person without legal training, could properly present his case, and that he was represented by a lawyer. On the other hand, in order not unduly to prolong the proceedings, the Federal Court at a later stage in fact refused the applicant's request for a new lawyer (see above, para. 29). The applicant's request for a suspension of the proceedings as the diet of the Canton of St. Gallen was dealing with his case was also refused (para. 31, above). 76. In these circumstances, the Commission does not find that the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention. Conclusion 77. The Commission concludes, by 16 votes to 4, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the length of the proceedings instituted against the Canton of St. Gallen. D. Imposition of court costs in advance 78. The applicant complains that in the proceedings which he attempted to institute against the Swiss Confederation he was asked to pay advance court costs amounting to 6,500 SFr. The applicant relies on Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar as relevant: "In the determination of his civil rights and obligations ... everyone is entitled to a .. hearing ... by (a) ... tribunal ..." 1. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention 79. The Commission must first examine whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue. This has not been contested by the Government. 80. Article 6 para. 1 (Art. 6-1) of the Convention extends to "contestations" (disputes) over "civil rights" which can be said, at least on arguable grounds, to be recognised under domestic law (see Editions Périscope, loc. cit., para. 35). 81. As to the issue whether the applicant could claim a "right" under domestic law, the Commission notes that the Federal Responsibility Act envisages in principle the responsibility of the Confederation for damage caused by civil servants, and that this Act also applies to members of the Federal Court (see above, para. 48). On the other hand, according to Section 12 of the Federal Responsibility Act, "the legality of ... decisions and judgments which have formally obtained legal force cannot be examined in responsibility proceedings" (see ibid.). 82. In his action the applicant complained of the Court's conduct of the proceedings, and that in view of the ensuing delays he had suffered prejudice as he had missed other time-limits. The Federal Responsibility Act does not exclude such a claim. There was no other remedy under Swiss law to complain about the length of court proceedings which had been terminated (see the Commission's decision on admissibility of 11 May 1992, below at page 33). 83. It is not for the Commission to examine the prospects of success of an action brought on these grounds (see Editions Périscope judgment, loc. cit., para. 38). It suffices to note that the applicant was not merely complaining of the decision, but of damage resulting from the Federal Court's conduct, and that the Federal Responsibility Act provides in such cases for a action before the Federal Court. 84. Thus, the "right" claimed by the applicant could be said, at least on arguable grounds, to be recognised under domestic law. The applicant's action would have led to the "determination" of this right. Moreover, the action concerned damages and was thus "pecuniary" in nature (see Editions Périscope judgment, loc. cit., para. 40). The right in question was therefore a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 85. Finally, the Commission considers that in the present case there was a "contestation" (dispute) concerning the existence of the right claimed by the applicant. 86. It follows that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue. 2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention 87. As regards the merits of his complaint, the applicant submits that his case was not without prospects of success. 88. The Government submit, with reference to Section 153 para. 1 b) of the Federal Judiciary Act, that the amount of advance costs fixed in the present case was not disproportionate. 89. The Government further recall, with reference to Section 152 para. 1 of the Federal Judiciary Act, that the Federal Court had already granted legal aid to the applicant, and appointed a lawyer, in the proceedings against the Canton of St. Gallen leading to the decision of 25 October 1988. The applicant was indigent, but his action was without any prospects of success. His responsibility action concerned decisions of the Federal Court which had already become final. 90. According to the Convention organs' case-law, Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a tribunal. In this way Article 6 para. 1 (Art. 6-1) 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). 91. 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. Moreover, the right to free legal aid in civil cases is not as such included among the rights and freedoms guaranteed by the Convention (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95; No. 10594/83, Dec. 14.7.87, D.R. 52 p. 158). Furthermore, according to the Commission's case-law, free legal aid, or the waiver of court costs, 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). 92. 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 (see Eur. Court H.R., Philis judgment, loc. cit. p. 20 et seq., para. 59). 93. In the present case, it is undisputed between the parties that the applicant was indigent. 94. The Commission notes that the applicant introduced with the Federal Court a responsibility action against the Swiss Confederation. Therein he claimed damages on account of the manner in which his previous action had been handled, and of the allegedly wrong decision of 25 October 1985 (see above, para. 40). He also requested legal aid. The Court dismissed the request for legal aid, finding that the action lacked prospects of success, and invited the applicant to pay in advance court costs of 6,500 SFr (see above, para. 41). As he failed to do so, the Court declared his action inadmissible on 4 May 1990 (see above, para. 43). 95. However, the Federal Court in its decision of 14 December 1989 also informed the applicant of the reasons why his action lacked prospects of success (see above, para. 41). The applicant was thus fully aware of the prospective outcome of his action. He was also aware of the reasons leading to the dismissal on 25 October 1988 and 6 January 1989 of his previous action against the Canton of St. Gallen (see above, paras. 34 et seq.). 96. It follows that the imposition in advance of court costs on the applicant 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. Conclusion 97. The Commission concludes, by 13 votes to 7, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the imposition of advance court costs. E. Recapitulation 98. The Commission concludes, by 16 votes to 4, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the length of the proceedings instituted against the Canton of St. Gallen (see above, para. 77). 99. The Commission concludes, by 13 votes to 7, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the imposition of advance court costs (see above, para. 97). Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD) JOINT CONCURRING OPINION OF MM. GEUS AND MARXER We agree that there has been no violation under Article 6 para. 1 of the Convention in respect of the complaint of the court costs which the applicant was asked to pay in advance. However, we have reached this conclusion for a different reason. We have examined whether Article 6 para. 1 of the Convention is applicable to the proceedings at issue. Article 6 para. 1 of the Convention extends to "contestations" (disputes) over "civil rights" which can be said, at least on arguable grounds, to be recognised under domestic law (see Editions Périscope judgment of 26 March 1992, Series A no. 234-B, para. 35). We have considered whether the applicant could claim the "determination" of a "right" recognised under domestic law. It is true that the Federal Responsibility Act envisages in principle the responsibility of the Confederation for damage caused by civil servants, and that this Act also applies to members of the Federal Court (see above, para. 48). In our opinion, however, the applicant was in effect contesting the outcome of the proceedings before the Federal Court, in particular the decision of 25 October 1988 which, in his view, was wrong. According to Section 12 of the Federal Responsibility Act, "the legality of ... decisions and judgments which have formally obtained legal force cannot be examined in responsibility proceedings" (see above, para. 48). This provision was quoted by the Federal Court itself when it found that the applicant's action lacked prospects of success (see above, para. 41). The Federal Responsibility Act therefore expressly excluded the damages claimed by the applicant. As a result, he cannot claim a "civil right" within the meaning of Article 6 para. 1 of the Convention. Moreover, in view of the fact that the applicant was contesting a decision which had become res judicata, the proceedings which he attempted to introduce did not concern the "determination" of civil rights or obligations within the meaning of Article 6 para. 1 of the Convention (see No. 5495/72, Dec. 5.4.74, Collection 45 p. 54). In our view, therefore, Article 6 para. 1 of the Convention is not applicable to the proceedings of which the applicant complains. JOINT DISSENTING OPINION of MM. BUSUTTIL, GÖZÜBÜYÜK, WEITZEL, SCHERMERS, DANELIUS, Mrs. THUNE and Mr. ROZAKIS We regret that we disagree with the majority in respect of the complaint under Article 6 para. 1 of the Convention of the imposition of advance court costs on the applicant. While we consider that Article 6 para. 1 of the Convention is applicable to these proceedings (see above, para. 84), we have reached a different conclusion as to the compliance with this provision. It is true that in the present case the Federal Court informed the applicant on 14 December 1989 of the lack of prospects of success of his action (see above, paras. 41 and 95). However, the right under Article 6 para. 1 of the Convention of access to a court includes the right to "determination" by that court of the applicant's claims within the meaning of this provision. The decision by which the Federal Court informed the applicant on 14 December 1989 of the lack of prospects of success of his action cannot be regarded as the "determination" of the applicant's claims. In this respect we further note that the Federal Court was not acting as an appeal or constitutional court, but as the first and only court called upon to decide the applicant's claims. In our opinion, the amount requested from the applicant, i.e. 6,500 SFr, was for an indigent person prohibitively high. It effectively barred the applicant's access to the sole court competent to deal with his claims. The imposition of the costs thus restricted his access to court to such an extent that it impaired the very essence of his right under Article 6 para. 1 of the Convention. In our view, therefore, there has been a violation of Article 6 para. 1 of the Convention in respect of the imposition of advance court costs. APPENDIX I HISTORY OF THE PROCEEDINGS Date Item _________________________________________________________________ 1) 23 April 1987 Introduction of Application No. 15252/89 2) 25 July 1989 Introduction of Application No. 15628/89 3) 18 May 1989 Introduction of Application No. 15629/89 4) 18 May 1989 Introduction of Application No. 15630/89 5) 3 October 1989 Introduction of Application No. 15857/89 6) 10 September 1990 Introduction of Application No. 17384/90 1) 20 July 1989 Registration of Application No. 15252/89 2) 4 October 1989 Registration of Application No. 15628/89 3) 16 October 1989 Registration of Application No. 15629/89 4) 16 October 1989 Registration of Application No. 15630/89 5) 4 December 1989 Registration of Application No. 15857/89 6) 31 October 1990 Registration of Application No. 17384/90 Examination of Admissibility 8 April 1991 Commission's decisions to join the applications; to invite the Government to submit observations on the admissibility and merits of the applications insofar as they concern certain complaints in Applications Nos. 15252/89, 15628/89 and 17384/90; and to declare inadmissible the remainder of the applications; 19 July 1991 Government's observations 18 September 1991 Applicant's observations in reply 11 May 1992 Commission's decision to declare the remainder of Applications Nos. 15252/89, 15628/89 and 17384/90 admissible Examination of the merits 10 July 1992 Government's observations on the merits 17 October 1992) Commission's consideration of the state of 30 March 1993 ) proceedings 19 April 1993 Applicant's submissions 30 April 1993 Government's submissions 13 May 1993 Commission's deliberations on the merits and final vote 14 May 1993 Adoption of the Report
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