AS TO THE ADMISSIBILITY OF
Application No. 18990/91
by Armin NIDERÖST-HUBER
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 January 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
Mr. K. ROGGE, 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 17 October 1991
by Armin Nideröst-Huber against Switzerland and registered on
24 October 1991 under file No. 18990/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 18 February 1994 and the observations in reply submitted
by the applicant on 1 June 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant is a Swiss national born in 1940 and resides in
Rickenbach (Switzerland). Before the Commission he is represented by
Mr. M. Ziegler, a lawyer practising in Lachen.
A. Particular circumstances of the case
In December 1985, following a change in the majority of share
holders, the applicant was dismissed without notice from his posts as
president of the board of management (Verwaltungsratspräsident) of a
limited company incorporated under Swiss law (Aktiengesellschaft) and
managing director (Geschäftsführer), respectively.
On 29 July 1986 the applicant brought an action for payment of
outstanding salary and compensation for dismissal against the company.
On 22 September 1988 the Schwyz District Court (Bezirksgericht)
dismissed the applicant's action.
On 19 June 1990 the Schwyz Cantonal Court (Kantonsgericht)
dismissed the applicant's appeal (Berufung). The Court found that the
applicant's dismissal without notice was justified as an important
reason for the applicant's dismissal existed. In the course of the
struggle for power between the applicant, who was supported by a part
of the share holders, and the new majority of share holders, the
applicant had not distinguished his own interests from those of the
company and neglected the company's interests. Thus, the applicant's
conduct had destroyed the confidence of the defendant in the
applicant's loyal management of the company.
On 12 October 1990 the applicant introduced at the Cantonal Court
a further appeal (Berufung) to the Federal Court (Bundesgericht).
On 22 October 1990 the Cantonal Court transmitted the appeal and
the file to the Federal Court and commented on the applicant's appeal.
In its comments the Cantonal Court stated inter alia that the basis of
confidence had been shattered because of the applicant's refractory
behaviour over the years and that the applicant had improperly accused
the District Court of bias. The comments of the Cantonal Court were
not transmitted to the parties.
On 12 December 1990 the defendant submitted observations, which
were transmitted to the applicant.
On 1 March 1991 the Federal Court dismissed the applicant's
appeal. The Federal Court, in a detailed reasoning, found that the
Cantonal Court had correctly assumed that the applicant's dismissal
without notice was justified. The applicant had, by his refractory
behaviour as managing director, continuously ignored the interests of
the former minority share holders. The company, with the changed
majority of share holders, could not be expected to continue the
employment contract and had the right to dismiss him without notice.
The Federal Court's judgment was served on the applicant on
30 April 1991.
On 2 May 1991 the Federal Court, upon the applicant's request,
transmitted to him the Cantonal Court's comments of 22 October 1990.
B. Relevant domestic law
Section 56 of the Federal Judiciary Act (Bundesrechtspflege-
gesetz) reads as follows:
(Translation)
"The Cantonal authority has to inform the other party immediately
of the filing of the appeal, even when it appears to be lodged
out of time. Within a week the Cantonal authority has to submit
to the Federal Court the writs of appeal, a copy of its decision
and of previous procedural decisions as well as the complete file
and its possible observations. It has to inform the Federal
Court about the date on which the impugned decision was served
on the parties, the date at which the appeal was received or
posted and when the opposing party was informed."
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that the principle of equality of arms was violated in the proceedings
before the Federal Court, because the Cantonal Court's comments of
22 October 1990 were not served on him. Thus, he had no opportunity
to comment on them. He submits that in these observations the Cantonal
Court made wrong or at least questionable submissions which the Federal
Court took over and to which he could not react.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of a violation of the principle of equality of arms, because
he did not receive the Cantonal Court's comments of 22 October 1990
during the proceedings before the Federal Court and, thus, had no
opportunity to react to them.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law. ..."
The Government submit that no issue arises with regard to the
principle of equality of arms as this principle does not concern the
relation between a party and the deciding authority. In any event, the
fact that the applicant had no possibility to comment on the Cantonal
Court's observations did not infringe the principle of fair trial.
The Government point to the specific function of the observations
under Section 56 of the Federal Judiciary Act in the proceedings before
the Federal Court. The scope of such observations is limited as they
must not contain any new statement of facts. Their purpose is to allow
the Cantonal authority to comment on legal questions invoked for the
first time in the appeal, to rectify erroneous or tendentious
interpretations of the judgment, to clarify ambiguous passages of the
judgment and to comment on complaints about obvious mistakes allegedly
made by the court.
The Government further submit that the observations of the
Cantonal Court were very short and merely summed up its judgment. They
only referred to elements already contained in the judgment and neither
supplemented the facts nor the legal reasoning. The Federal Court
adopted the Cantonal Court's findings on the facts as contained in the
judgment, without relying on the Cantonal Court's observations. When
the Federal Court described the applicant's conduct with a concise
formula used by the Cantonal Court in its observations ("renitent" for
systematic opposition) it did not depart from the Cantonal Court's
judgment.
The Government also argue that civil proceedings should not be
aligned to criminal proceedings in an artificial way, as the
requirements inherent in the concept of fair trial are stricter with
regard to criminal proceedings and Contracting States have a greater
latitude when dealing with civil cases. In the context of the civil
proceedings the requirements of Article 6 (Art. 6) are met if, like in
the present case, the possibility for a second exchange of memorials
exists if the Cantonal Court's observations would have contained new
and serious arguments.
The applicant submits that the principle of equality of arms
requires that important legal submissions must be served on the parties
in order to allow them to react thereto. The right to make
observations does make a Cantonal Court a party to the proceedings
before the Federal Court. In making observations such a court makes
statements in favour of a party. As such observations emanate from an
official body, they are practically more important than the submissions
of the opposing party. There is therefore a shift in the equality of
arms in favour of the party it supports, which necessitates that the
appellant must be able to receive and comment on the observations.
The applicant submits further that, in any event, the Federal
Court's failure to serve the Cantonal Court's observations on him
violated his right to a fair hearing. The observations contained new,
and, in his view, incorrect elements which the Federal Court adopted
in its judgment. But even if the observations did not relate to new
elements, the Cantonal Court's remarks were likely to show him in an
unfavourable light before the Federal Court.
The Commission finds that the application raises complex issues
of fact and law with respect to the applicant's right to a fair hearing
under Article 6 para. 1 (Art. 6-1) of the Convention which must be
examined on the merits. The application cannot therefore be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy