AS TO THE ADMISSIBILITY OF
Application No. 22201/93
by U. R. AG
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 6 September 1995, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 28 June 1993 by
U. R. AG against Switzerland and registered on 12 July 1993 under file
No. 22201/93;
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 facts of the case, as submitted by the applicant company, may
be summarised as follows.
The applicant company, involved in the construction of machines,
has its seat at Freienbach in Switzerland. Before the Commission, the
applicant company is represented by U. R., the main shareholder of the
company.
Particular circumstances of the case
On 27 November 1987 the Council for Vocational Training
(Berufsbildungsrat) of the Canton of Schwyz, after hearing various
apprentices as witnesses, decided to withdraw the applicant company's
authorisation to train apprentices (Lehrlingsausbildungsbewilligung).
On 17 December 1987 the applicant company filed an appeal against
this decision with the Government (Regierungsrat) of the Canton of
Schwyz. Various other appeals directed against the Council for
Vocational Training were at that stage also pending before the
Government of the Canton of Schwyz.
On 17 August 1988 the Government dismissed the appeal against the
withdrawal of the authorisation to train apprentices; the other appeals
were struck off its list of cases or declared inadmissible.
The applicant company then filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
upheld on 10 March 1989 in respect of the complaint that the applicant
company had not been present when the Council for Vocational Training
had heard various apprentices as witnesses. The Federal Court also
quashed the decision concerning the costs imposed by the Government of
the Canton of Schwyz.
The Government of the Canton of Schwyz then instructed the
Department of Justice of the Canton of Schwyz to continue the
proceedings. The Department offered the applicant company various
dates at which the witnesses would be heard and the applicant company
could be present. As the applicant company disagreed with all dates,
it was itself requested to propose dates. However, it failed to do so.
When eventually the date of 18/19 September 1989 was fixed for the
hearing, the applicant company requested adjournment of the hearing.
The request was refused whereupon the applicant company filed an appeal
with the Administrative Court (Verwaltungsgericht) of the Canton of St.
Gallen. The latter declared the appeal inadmissible on 3 November 1989
as the applicant company had failed to pay the advance court costs.
The applicant then filed a public law appeal (staatsrechtliche
Beschwerde) with the Federal Court, though it later withdrew the appeal
and on 13 March 1990 the Federal Court struck the appeal off its list
of cases.
Meanwhile, on 11 December 1989 the Department of Justice
requested the applicant company to propose dates in February 1990 for
the hearing of the witnesses. When the applicant company failed to do
so, it was granted a further time-limit of 10 days to propose a date
in April 1990. After the expiry of the time-limit the applicant
company informed the Department of Justice that it had meanwhile filed
a public law appeal with the Federal Court; it did not, however, make
any proposals as to a date for the hearing.
On 5 April 1990 the Department of Justice fixed the hearing for
24 April 1990. The applicant company filed a request for
reconsideration of the decision which the Department of Justice
dismissed on 11 April 1990. The applicant company filed an appeal
against the decision of 5 April 1990 which the Administrative Court
declared inadmissible on 19 April 1990.
The applicant company filed an administrative law appeal with the
Federal Court against the decision of the Department of Justice of
11 April 1990, and a public law appeal against the decision of the
Administrative Court of 19 April 1990.
The hearing took place on 24 April 1990, and the witnesses were
questioned in the presence of U.R. The minutes of the hearing were
transmitted to the applicant company for observations. Following a
prolongation of the time-limit, the applicant company submitted
comments on 2 July 1990. As the applicant company had not received
the entire minutes, the latter were again transmitted to the applicant
company which filed further observations on 30 July 1990.
Meanwhile, on 15 May 1990 the Government of the Canton of Schwyz
dismissed the applicant company's challenge of the chairman of the
Council for Vocational Training, and of the administrator at the
Department of Justice dealing with the case-file.
On 21 August 1990 the Government of the Canton of Schwyz
dismissed the applicant company's appeal and confirmed the withdrawal
of the authorisation to train apprentices. The Government also imposed
costs of 4,043 SFr on the applicant company.
On 30 September 1990 the applicant company filed an
administrative law appeal. The Government of the Canton of Schwyz as
well as the Federal Economics Department (Eidgenössisches
Volkswirtschaftsdepartement) filed their observations on the appeal.
The applicant company commented thereupon on 13 May 1991 after which
the other parties were given the opportunity to file further
observations.
The applicant company's request for a third round of observations
was dismissed by the Federal Court on 26 September 1991.
In its decision of 22 December 1992 the Federal Court joined the
various appeals and dismissed them. It found that the Government of
the Canton of Schwyz had not, as alleged by the applicant company,
incorrectly assessed the facts, and it concluded that the applicant
lacked the personal qualities to train apprentices. The Federal Court
also dismissed the applicant company's complaint that the Government
of the Canton of Schwyz had incorrectly imposed costs.
The Federal Court's decision was served on 28 December 1992.
Relevant domestic law
According to Section 6 of the Federal Act on Vocational Training
(Bundesgesetz über die Berufsbildung), the elementary vocational
training should offer the required abilities and knowledge for the
profession at issue. The training should enhance the general knowledge
of the apprentices and enable the development of their personality.
According to Section 10 of the Federal Act, apprentices may only
be trained by masters (Lehrmeister) who have the required professional
abilities as well as the necessary personal skills. The masters must
moreover have themselves attended a masters' training course.
Section 22 provides that the master must train the apprentice
systematically and according to the requirements of the profession
(fachgemäss).
COMPLAINTS
The applicant company complains that it did not have a public
hearing in these proceedings.
The applicant company also complains that the authorisation to
train apprentices should have been withdrawn from the master
(Lehrmeister), and not from the applicant company as such.
The applicant company further complains that the renewed hearing
of the witnesses was pointless, as they had been influenced by
receiving the minutes of the previous hearing. Thus, before the
renewed hearing the witnesses were in a position to study what they had
said at the previous hearing.
The applicant company also complains of the excessive length of
the entire proceedings, lasting from 1987 until 1992.
Finally, the applicant company complains that the Government of
the Canton of Schwyz in its decision of 21 August 1990 imposed costs
on the applicant company, although the Federal Court on 10 March 1989
had quashed the previous decision of the Government of 17 August 1988.
The applicant company relies on Article 6 para. 1 of the
Convention, arguing that the proceedings at issue were "civil" within
the meaning of Article 6 para. 1 of the Convention in that the
withdrawal of the authorisation to train apprentices affected the basic
economic existence of the applicant company which would be deprived of
its next generation of staff and could thus hardly be sold.
THE LAW
1. The applicant company raises various complaints about the
fairness of the proceedings. It 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 fair and public hearing
within a reasonable time ..."
2. The Commission notes that the proceedings in which the applicant
association was involved concerned the withdrawal of an authorisation
to train apprentices. An issue arises as to whether such proceedings
concerned "the determination of (the applicant company's) civil rights
and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention. The Commission need nevertheless not resolve this
issue since the application is in any event inadmissible for the
following reasons.
3. The applicant company complains about the outcome of the
proceedings, in particular that the authorisation to train apprentices
should have been withdrawn from the master, not from the applicant
company. The applicant company also complains that the Government of
the Canton of Schwyz incorrectly imposed the court costs on the
applicant company.
However, under Article 19 (Art. 19) of the Convention the
Commission's only task is to ensure the observance of the obligations
undertaken by the Parties to 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. 21283/93, Dec. 5.4.94, D.R. 77-B pp. 81, 88).
4. The applicant company also complains that it did not have a
public hearing in these proceedings.
a) Insofar as the applicant company may be understood as complaining
of the proceedings before the Administrative Court of the Canton of St.
Gallen, it has not shown that it raised this complaint in a public law
appeal before the Federal Court. In this respect, the applicant
company has therefore not complied with the requirement as to the
exhaustion of domestic remedies within the meaning of Article 26
(Art. 26) of the Convention, and this part of the application must be
declared inadmissible according to Article 27 para. 3 (Art. 27-3) of
the Convention.
b) Insofar as the applicant company may be understood as complaining
of the proceedings before the Federal Court, the Commission recalls
that Article 6 para. 1 (Art. 6-1) of the Convention does not prevent
a person from waiving of his own free will, either expressly or
tacitly, the entitlement to have his case heard in public (see Eur.
Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no.
263, p. 19, para. 58).
In the present case the applicant company has not shown that it
made a request for a public hearing during the proceedings. The
applicant company must therefore be considered as having waived its
right to a public hearing. This part of the application is therefore
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant company further complains that the renewed hearing
of the witnesses was pointless, as they had been influenced by
receiving the minutes of the previous hearing.
The Commission recalls that the admissibility of evidence is
primarily a matter for regulation by national law and, as a rule, it
is for the national courts to assess the evidence before them. The
Convention organs' task is to ascertain whether the proceedings
considered as a whole, including the way in which evidence was taken,
were fair (see mutatis mutandis Eur. Court H.R., Asch judgment of 26
April 1991, Series A no. 203, p. 10, para. 26).
In the present case the Commission finds no indication that in
these proceedings the applicant company could not put forward its point
of view or that the proceedings were otherwise unfairly conducted. In
particular, the Commission notes that a representative of the applicant
company was present when the witnesses were heard, and that the
representative thus had the possibility to put forward his point of
view in respect of any statement of the witnesses with which he
disagreed.
This part of the application is therefore also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. Finally, the applicant company complains of the length of the
proceedings.
As regards the period to be considered, the Commission recalls
the judgment in the König case according to which that applicant "could
not seise the competent court before having the lawfulness and the
expediency of the impugned administrative acts examined in preliminary
proceedings ... before the administrative authority ... Consequently
... the reasonable time stipulated by Article 6 para. 1 (Art. 6-1)
starts to run on the day on which (the applicant) lodged an objection
against the withdrawals of his authorisations" (Eur. Court H.R., König
judgment of 28 June 1978, Series A no. 27, p. 33, para. 98).
In the present case, after the Council for Vocational Training
of the Canton of Schwyz had withdrawn the authorisation of the
applicant company to train apprentices, the latter filed an appeal on
17 December 1987 to the Government of the Canton of Schwyz. The
Commission finds that on this date the period to be examined under
Article 6 para. 1 (Art. 6-1) of the Convention commenced.
The proceedings ended on 28 December 1992 when the decision of
the Federal Court of 22 December 1992 was served on the applicant.
The relevant period therefore lasted five years and 11 days.
The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and having regard in particular to the
complexity of the case and the conduct of the applicant and of the
relevant authorities (see Eur. Court H.R., Vernillo judgment of 20
February 1991, Series A no. 198, p. 12, para. 30).
The Commission considers at the outset that the proceedings,
concerning the withdrawal of an authorisation to train apprentices,
could not be regarded as complex.
As regards the conduct of the applicant company, the Commission
notes that, after the Federal Court upheld the applicant company's
administrative law appeal on 10 March 1989, the Department of Justice
attempted to fix a date for the hearing of the witnesses. However, the
applicant first disagreed with all dates proposed and subsequently
failed to propose dates although invited to do so. When eventually a
date was fixed for 18/19 September 1989, the applicant company
requested an adjournment of the hearing. The request was refused
whereupon the applicant company filed an appeal which the
Administrative Court declared inadmissible on 3 November 1989 as the
applicant company had not paid the advance court costs.
Subsequently, the Department of Justice again requested the
applicant company on 11 December 1989 to propose dates for a hearing,
which the latter failed to do. When a date was fixed for 5 April 1990,
the applicant company filed an appeal with the Administrative Court and
also with the Federal Court.
Thus, the applicant company was to a large extent itself
responsible for the lapse of time after 10 March 1989, when the Federal
Court upheld the applicant company's administrative law appeal, until
21 August 1990 when the Government of the Canton of Schwyz again
dismissed the applicant company's appeal.
The Commission has finally examined the conduct of the
authorities. It considers that on the whole the authorities constantly
and diligently pursued the case until 21 August 1990 when the
Government of the Canton of Schwyz dismissed the applicant company's
appeal.
Subsequently, nearly 27 months elapsed after the applicant
company had filed its administrative law appeal on 30 September 1990
until the Federal Court gave its judgment on 22 December 1992. During
this period the Federal Court granted the parties a second opportunity
to present observations on the case. Thus, the applicant company filed
its observations on 13 May 1991, whereupon the other parties were
offered the possibility to reply thereto.
It is true that a considerable period of time elapsed thereafter
until 22 December 1992 when the Federal Court gave its judgment.
However, the Commission notes that the Federal Court was also
confronted with other appeals filed by the applicant company during the
same proceedings. Moreover, the applicant company itself did not
indicate any interest in the speedy conclusion of the proceedings by
requesting the Federal Court to conduct a further third round of
observations; the Federal Court refused this request on 26 September
1991.
Making an overall assessment of the proceedings, the Commission
finds that there is no indication of any periods of delay attributable
to the authorities which would exceed the requirement of a "reasonable
time" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
This part 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy