EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 17771/91
R.
against
Switzerland
REPORT OF THE COMMISSION
(adopted on 9 September 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14) . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 9) . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 10 - 14) . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 32). . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 15 - 28) . . . . . . . . . . . . . . .3
a) Adoption of the applicant's child
(paras. 15 - 19). . . . . . . . . . . . .3
b) Appeal proceedings before the Zurich
authorities
(paras. 20 - 21). . . . . . . . . . . . .3
c) Proceedings before the Federal Court
(paras. 22 - 27). . . . . . . . . . . . .4
d) Proceedings concerning the subsistence
allowance
(para. 28). . . . . . . . . . . . . . . .5
B. Relevant domestic law and practice
(paras. 29 - 32) . . . . . . . . . . . . . . .5
a) Swiss Civil Code
(para. 29). . . . . . . . . . . . . . . .5
b) Federal Judiciary Act
(paras. 30 - 31). . . . . . . . . . . . .5
c) Subsequent developments
(para. 32). . . . . . . . . . . . . . . .6
III. OPINION OF THE COMMISSION
(paras. 33 - 53). . . . . . . . . . . . . . . . . .7
A. Complaints declared admissible
(para. 33) . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 34) . . . . . . . . . . . . . . . . . .7
C. Article 6 of the Convention
(paras. 35 - 52) . . . . . . . . . . . . . . .7
a) Issue of submitting further evidence
(paras. 37 - 39). . . . . . . . . . . . .7
b) Issue of an oral hearing
(paras. 40 - 45). . . . . . . . . . . . .8
c) Issue of commenting on the statement of
the opposing party
(paras. 46 - 52). . . . . . . . . . . . .9
CONCLUSION
(para. 53). . . . . . . . . . . . . . . . . . . . 10
SEPARATE OPINION OF MR. H. DANELIUS,
JOINED BY MR. S. TRECHSEL . . . . . . . . . . . . . . . . . 11
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 12
APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . 13
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 application
2. The applicant, a Swiss citizen born in 1944, is a business
employee residing in Zurich. Before the Commission he is
represented by Mr. L.A. Minelli, a lawyer residing at Forch in
Switzerland.
3. The application is directed against Switzerland. The
Government are represented by their Deputy Agent,
Mr. Ph. Boillat, Head of the European Law and International
Affairs Section of the Federal Office of Justice.
4. The application, insofar as declared admissible, concerns
the applicant's complaints under Article 6 of the Convention
that in proceedings before the Federal Court concerning the
adoption of his child he could not comment on the statement of
the opposing party; that he could not request the taking of
evidence; and that he did not have an oral hearing.
B. The proceedings
5. In respect of the complaints under Article 6 para. 1 of the
Convention the Commission considered that the application had
been introduced on 28 January 1991 (see admissibility decision,
at page 17). The application was registered on 7 February 1991.
6. On 6 January 1992 the Commission decided to communicate the
application to the respondent Government and invite them to
submit written observations on the admissibility and merits in
respect of the complaints under Article 6 para. 1 of the
Convention.
7. The Government's observations were received by letter dated
12 March 1992. The applicant submitted his observations in reply
on 17 April 1992.
8. On 12 October 1992 the Commission declared the application
inadmissible insofar as it concerned the applicant's complaints
under Article 8 of the Convention that his child had been adopted
without his consent. The remainder of the application
(complaints under Article 6 para. 1 of the Convention) was
declared admissible.
9. 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
10. 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
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ RUIZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM J.-C. GEUS
M. P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
11. The text of this Report was adopted on 9 September 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.
12. 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.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the
Commission's decision on the admissibility of the application as
Appendix II.
14. 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
a) Adoption of the applicant's child
15. On 24 March 1987 Ms. K. gave birth to a girl R. The
applicant from the beginning accepted paternity. On
26 March 1987 he declared in writing that he supported the
decision of Ms. K. to entrust the child to foster parents who
eventually might adopt the child. R. has lived with foster
parents since 30 March 1987. On 8 May 1987 Ms. K. signed a
declaration according to which she accepted a subsequent adoption
of R.
16. At the end of May 1987 the applicant wrote to the Youth
Secretariat of the Zurich-Land District, explaining that only
with difficulty could he accept that R. would no longer grow up
with her mother. However, after long conversations with Ms. K.
he accepted her decision. The applicant further wrote that the
prospect never to be allowed to see R. was incomprehensible and
painful. By letter of 26 June 1987 the Youth Secretary G.
replied that the applicant's declaration to respect Ms. K.'s
decision also implied that he would not do anything that could
endanger the future adoption; contacts between the applicant and
the child would only create unnecessary problems and not lie in
the child's interests.
17. On 27 July 1987 the Oberengstringen Guardianship Office
(Vormundschaftsbehörde) declared that R.'s father was unknown and
had not taken care of the child. With reference inter alia to
Section 265c of the Swiss Civil Code (Zivilgesetzbuch; see below,
Relevant domestic law and practice) the Office ruled therefore
that the father's consent to R.'s adoption was not necessary.
The Office also withdrew Ms. K.'s parental custody over R. and
appointed the Youth Secretary G. as the child's guardian. The
decision was not served on the applicant.
18. As from September 1988 the applicant was represented by a
lawyer.
19. In a letter of 5 September 1988 to the Oberengstringen
Guardianship Office, the applicant stated that he wished to rear
R. together with Ms. K., and that he had not consented to R.'s
adoption and did not intend to do so. A copy of this letter was
sent to the Youth Secretary G. who then transmitted a copy of the
decision of the Guardianship Office of 27 July 1987 to the
applicant.
b) Appeal proceedings before the Zurich authorities
20. The applicant unsuccessfully appealed against the decision
of 27 July 1987 to the Zurich District Council (Bezirksrat).
During these proceedings he was heard by a member of the District
Council.
21. The applicant's subsequent appeal to the Zurich Ministry of
Justice (Justizdirektion) was dismissed on 4 January 1990. In
its decision the Ministry found in particular that it could not
be said that the child's father was unknown. However, it
considered the conditions of Section 265c para. 2 of the Civil
Code to be satisfied.
c) Proceedings before the Federal Court
22. The applicant then filed an appeal (Berufung) with the
Federal Court (Bundesgericht). In the appeal statement, which
was prepared by a lawyer, the applicant explained in detail how
he had shown a serious interest in his child. He complained
that the authorities' conduct disclosed that they were determined
to proceed with an adoption. Finally he submitted that he
intended to marry R.'s mother. This appeal was communicated to
the Zurich Ministry of Justice for observations.
23. On 9 February 1990 the Zurich Ministry of Justice filed its
observations on the appeal, requesting the Federal Court to
dismiss it. The applicant did not become aware of these
observations until 6 September 1990, i.e. after the Federal Court
had given its judgment.
24. In its observations the Ministry of Justice found inter alia
that the applicant, in his descriptions of the events, had left
out relevant parts, for instance his statement of May 1987.
While he had expressed an interest in visiting the child, he no
longer pursued his efforts once the guardian told him that this
was not possible. The Ministry found that in fact the applicant
was not as helpless as he was making himself out to be. No
indications transpired from the applicant's appeal concerning the
recognition of paternity. The applicant mostly raised claims
which had been made in the proceedings at issue and had no basis
whatsoever. In fact the applicant no longer even knew where he
had unsuccessfully attempted to obtain a birth certificate of the
child.
25. On 20 April 1990 the Federal Court dismissed the appeal
without conducting an oral hearing. Notification of the
operative part of the decision, stating that the appeal was
dismissed, was served on the applicant on 23 April 1990 and
received by him, at the earliest, on 25 April 1990. The reasons
for the decision were dispatched to the applicant's lawyer on
27 July 1990. The decision stated that the Federal Court followed
the procedure provided for in Section 60 paras. 1 and 2 of the
Federal Judiciary Act (Organisationsgesetz; see below, Relevant
domestic law and practice). The decision further referred to a
statement of the Ministry of Justice of the Canton of Zurich that
the appeal should be dismissed.
26. In its decision the Federal Court found that the conditions
of Section 265c para. 2 of the Civil Code were met. The Court
noted in particular that upon R.'s birth the applicant had
accepted that he was not in a position to take care of her. In
his letter of May 1987 the applicant had not stated that he
wanted an intensive contact with R. but only that he was sad that
she could not grow up with her mother. Moreover, he had not at
the time reacted to Youth Secretary G.'s reply of 26 June 1987.
27. The Court noted that the applicant had not until
5 September 1988 contacted the Guardianship Office. However, he
had not explained in which way he would personally take care of
the child. The Court further found that the applicant had not
applied for legal recognition of his paternity until April 1989
when the Zurich District Council had set him a time-limit to
prove it.
d) Proceedings concerning the subsistence allowance
28. On 21 December 1990 the Zurich District Court
(Bezirksgericht) ordered the applicant to pay a monthly
subsistence allowance to R. From this decision it also
transpires that R.'s adoption had entered into legal force.
B. Relevant domestic law and practice
a) Swiss Civil Code
29. According to Section 265c of the Swiss Civil Code
(Zivilgesetz-buch), consent of a parent to a child's adoption
need not be obtained "1. if he is unknown, absent for a longer
period of time and of unknown residence, or permanently of
unsound mind; 2. if he has not seriously taken care of the child"
("1. wenn er unbekannt, mit unbekanntem Aufenthalt länger
abwesend oder dauernd urteilsunfähig ist, 2. wenn er sich um das
Kind nicht ernstlich gekümmert hat").
b) Federal Judiciary Act
30. According to Section 62 of the Federal Judiciary Act
(Organisa-tionsgesetz) in the version in force at the relevant
time, upon appeal an oral hearing should in principle take place
before the Federal Court in non-pecuniary civil cases. Section
60 in the version in force at that time dealt with cases in which
the Federal Court decided on the appeal without public
deliberations. Section 60 stated:
[Translation]
"1. The Federal Court may immediately or after obtaining
a reply, without public deliberations and unanimously,
a. decide that it will not deal with the appeal ...
...
2. The Federal Court may also, after the time-limit for
an accessory appeal has expired, at once or after obtaining
a reply without public deliberations, decide, provided it
is unanimous, to dismiss the appeal if it regards the
appeal without any doubt as being unfounded."
[German]
"1. Das Bundesgericht kann sofort oder nach Einholung der
Antwort ohne öffentliche Beratung bei Einstimmigkeit
a. beschliessen, dass auf die Berufung nicht eingetreten
wird ..
...
2. Ebenso kann das Bundesgericht nach Ablauf der Frist
für die Anschlussberufung sofort oder nach Einholung der
Antwort ohne öffentliche Beratung bei Einstimmigkeit die
Berufung abweisen, wenn er sie ohne irgendwelchen Zweifel
als unbegründet erachtet."
31. As regards the taking of evidence, Section 55 para. 1 c) in
the version in force at the relevant time stated that the appeal
must not contain "statements which are directed against the
establishment of the facts, allegations of new facts, new
objections, contestations and means of evidence" ("das Vorbringen
neuer Tatsachen, neue Einreden, Bestreitungen und Beweismittel").
Section 63 para. 2 states, in so far as relevant:
[Translation]
"The Federal Court must in its decision rely on the
determination of the last Cantonal instance in respect of
the factual circumstances, except if they were reached in
violation of rules of evidence of Federal law."
[German]
"Das Bundesgericht hat seiner Entscheidung die
Feststellungen der letzten kantonalen Instanz über
tatsächliche Verhältnisse zugrunde zu legen, es wäre denn,
dass sie unter Verletzung bundesrechtlicher
Beweisvorschriften zustande gekommen sind."
c) Subsequent developments
32. The Federal Court has subsequently been confronted in
another case with a public law appeal (staatsrechtliche
Beschwerde) directed against the guardianship authorities of the
Canton of Thurgau. On 17 December 1992 the Federal Court upheld
the public law appeal. In its decision it instructed "the Canton
of Thurgau ... to determine the jurisdiction in guardianship
matters in such a manner that in cases such as the present one
at least at one level a court with full powers will examine all
legal and factual issues" ("der Kanton Thurgau wird ... die
Zuständigkeit im Vormundschaftsbereich so zu ordnen haben, dass
in Angelegenheiten der vorliegenden Art wenigstens in einer
Instanz ein Gericht mit umfassender Kognition die Rechts- und
Tatfragen prüft").
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
33. The Commission has declared admissible the applicant's
complaints that in proceedings before the Federal Court
concerning the adoption of his child (a) he could not comment on
the statement of the opposing party; (b) he could not request the
taking of evidence; and (c) he did not have an oral hearing.
B. Point at issue
34. Accordingly, the issue to be determined is whether there has
been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention in particular in that in the proceedings before the
Federal Court (a) the applicant could not request the taking of
evidence; (b) the applicant did not have an oral hearing; and (c)
the applicant could not comment on the statement of the opposing
party.
C. Article 6 (Art. 6) of the Convention
35. Article 6 para. 1 (Art. 6-1) of the Convention states,
insofar as relevant:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing ...
Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the
interest of morals, public order or national security in a
democratic society, where the interests of juveniles or the
protection of the private life of the parties so require,
or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would
prejudice the interests of justice."
36. The Commission considers, and this has not been disputed
by the parties, that the present case, relating to the adoption
of the applicant's child, concerned "the determination of his
civil rights and obligations" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention. This provision was
therefore applicable to the proceedings at issue.
a) Issue of submitting further evidence
37. The applicant complains under Article 6 para. 1 (Art. 6-1)
of the Convention that he could not request the taking of
evidence before the Federal Court.
38. The Government refer to Sections 55 para. 1 (c) and 63
para. 2 of the Federal Judiciary Act. According to these
provisions, the appeal statement must not contain new means of
evidence; and the Federal Court was bound by the determination
of the facts by the last Cantonal instance (see above, para. 31).
39. The Commission considers that the Federal Court, deciding
as the only court on the applicant's claims, considered factual
issues of the case (see above, paras. 26 et seq.). The
Commission further recalls that in his appeal statement the
applicant explained in detail how he had shown a serious interest
in his child (see above, para. 22). Thus, it may have been
important for the applicant to submit evidence contesting the
assessment of the necessity of adoption by the Zurich
administration. However, the Federal Judiciary Act expressly
excluded this possibility.
b) Issue of an oral hearing
40. The applicant complains under Article 6 para. 1 (Art. 6-1)
of the Convention that he never had an oral hearing before a
court.
41. The Government contend that the applicant did not ask for
an oral hearing before the Federal Court. They note that the
Federal Judiciary Act did not envisage such a right.
42. In the Commission's opinion, as the Federal Court was the
only court deciding on the applicant's claims, Article 6 para. 1
(Art. 6-1) of the Convention entitled him to a hearing before
that Court, which he did not have.
43. Article 6 para. 1 (Art. 6-1) of the Convention does not
prevent a person from waiving of his own will, either expressly
or tacitly, the entitlement to have his case heard orally.
However, a waiver must be made in an unequivocal manner and must
not run counter to important public interests (see Eur. Court
H.R., Håkansson and Sturesson judgment of 21 February 1990,
Series 171-A, p. 20, para. 67; Schuler-Zgraggen judgment of
24 June 1993, para. 58).
44. The applicant did not ask for a hearing. As in the
Håkansson and Sturesson case, where "Swedish law expressly
provided for the possibility of holding public hearings" (loc.
cit.), Section 62 of the Swiss Federal Judiciary Act also
permitted the Federal Court to order an oral hearing in such
cases (see above, para. 30). In addition, however, Section 60
para. 2 of the Swiss Federal Judiciary Act also provided for the
possibility of the Federal Court, if unanimous, to dismiss the
appeal "at once or after obtaining a reply ... if it regards the
appeal without any doubt as being unfounded" (see above,
para. 30). The Federal Judiciary Act thus excluded an oral
hearing under certain conditions upon which the applicant had no
influence.
45. It is true that the applicant could have asked for a hearing
under Section 62 of the Federal Judiciary Act. However, in the
present case, the Federal Court dismissed the applicant's appeal
according to Section 60 para. 2 of the Federal Judiciary Act (see
above, para. 25). The Government have not shown that in view of
the categoric wording of Section 60 para. 2 the applicant's
request to have an oral hearing would have had any reasonable
prospects of success. It could not therefore have been expected
of him to ask for an oral hearing.
c) Issue of commenting on the statement of the opposing party
46. The applicant complains under Article 6 para. 1 (Art. 6-1)
of the Convention that in the proceedings before the Federal
Court he could not comment on the statement of the opposing
party.
47. In the Government's view, the applicant could have applied
for leave to comment on a possible statement of the other party,
though they again refer to Section 60 of the Federal Judiciary
Act (see above, para. 30).
48. The Commission recalls that the right to a fair hearing,
which includes the principle of equality of arms, implies that
everyone who is a party to civil or criminal proceedings shall
have a reasonable opportunity of presenting his case to the court
under conditions which do not place him at a substantial
disadvantage as compared with his opponent. However, this right
does not preclude States from regulating the exchange of
memorials. Thus, it must be distinguished, for instance, whether
the Court concerned was competent to examine all issues of the
case, or merely questions of law, and whether the applicant was
granted some other opportunity of commenting on the statement of
the opposing party (see No. 2804/66, Dec. 16.7.68, Yearbook 11
p. 381 at p. 398 et. seq.; No. 10938/84, dec. 9.12.86, D.R. 50
p. 98 at p. 115; mutatis mutandis Eur. Court H.R., Brandstetter
judgment of 28 August 1991, Series A no. 211, p. 27, para. 67;
Ruiz-Mateos judgment of 23 June 1993, Series A no. 262,
para. 63).
49. The applicant's appeal to the Federal Court was communicated
to the Zurich Ministry of Justice for observations. On
9 February 1990, the Ministry filed its observations, requesting
the Federal Court to dismiss the appeal. In its statement, the
Ministry commented on the applicant's appeal in the light of its
own decision of 4 January 1990. The applicant did not become
aware of the statement of the opposing party until
6 September 1990, i.e. after the Federal Court had given its
judgment (see above, paras. 22 et seq.).
50. Thus, the opposing party could reply to the applicant's
statements whereas the applicant had no knowledge of the other
party's views. He was, therefore, in a situation of inequality
towards the opposing party. As the applicant was not otherwise
heard (see above, paras. 41 et seq.) and the Federal Court also
examined factual issues of the case (see above, paras. 26 et
seq.), he was placed at a substantial disadvantage in comparison
with his opponent.
51. In the Government's submissions, the applicant could in
advance have applied for leave to comment on any statement of the
opposing party.
52. The Commission recalls that according to Section 60 para. 2
of the Federal Judiciary Act the Federal Court could, if
unanimous, dismiss the appeal at once, or immediately after it
had received the statement of the opposing party (see above,
para. 30). The Government have not shown that in view thereof
a request by the applicant for leave to comment on any statement
of the opposing party would have had reasonable prospects of
success. It could not therefore have been expected of him to
make such a request in advance.
CONCLUSION
53. The Commission concludes, by a unanimous vote, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
SEPARATE OPINION OF MR. H. DANELIUS
JOINED BY MR. S. TRECHSEL
I agree with the conclusion of the Commission that there has
been a violation of Article 6 para. 1 of the Convention in the
present case. However, in regard to the issue of an oral
hearing, I wish to make the following additional observations.
It follows from the Håkansson and Sturesson judgment that
a party's failure to request an oral hearing can in many
circumstances be interpreted as a tacit waiver of the right to
such a hearing. The question arises whether such an
interpretation would be justified also in the present case.
According to Section 62 of the Swiss Federal Judiciary Act,
an oral hearing before the Federal Court is in principle
compulsory in non-pecuniary civil cases. The exceptions referred
to in Section 60 para. 2 of the Act concern cases where it is
clear that an appeal must be rejected on the ground of being
unfounded.
This being the legal background, it is obvious that the
applicant, when appealing to the Federal Court, wished his appeal
to be dealt with under Section 62, which would automatically lead
to an oral hearing being held, and not under Section 60 para. 2,
which would result in the rejection of his appeal. Consequently,
the fact that he did not specifically request an oral hearing
cannot, in these circumstances, be interpreted as a tacit waiver
of such a hearing.
For these reasons, and having regard to the fact that the
Federal Court was the only court which dealt with the applicant's
case, I agree with the Commission in finding that the rejection
of the appeal without an oral hearing was not in conformity with
the requirements of Article 6 para. 1 of the Convention.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
31 October 1990 and
21 January 1991 Introduction of the application
7 February 1991 Registration of the application
Examination of Admissibility
6 January 1992 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
12 March 1992 Government's observations
17 April 1992 Applicant's observations in reply
12 October 1992 Commission's decision to declare the
application in part admissible and in
part inadmissible
Examination of the merits
5 December 1992 Commission's consideration of the
state of proceedings
31 August 1993 Commission's deliberations on the
merits, final vote
9 September 1993 Adoption of the Report
Full & Egal Universal Law Academy