AS TO THE ADMISSIBILITY OF
Application No. 23269/94
by Edgar and Anita VON ARX-DERUNGS
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 June 1995, the following members being present:
Mr. H. DANELIUS, President
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
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 29 December 1993
by Edgar and Anita Von Arx-Derungs against Switzerland and registered
on 19 January 1994 under file No. 23269/94;
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, as submitted by the applicants, may be summarised as
follows.
The applicants, born in 1944 and 1942, respectively, are Swiss
citizens residing in Walde in Switzerland. They are the directors of
an old persons' home. Before the Commission they are represented by
Mr R. Schaller, a lawyer practising in Geneva.
Particular circumstances of the case
The old persons' home run by the applicants since 1986 is located
outside the village of Biberstein in Switzerland. Approximately 30-40
persons live there. There are also various animals, including a number
of dogs, taken care of by the residents.
On 19 June 1989 the Biberstein municipal council (Gemeinderat)
reprimanded the applicants on the basis of Section 16 of the General
Police Regulations of the Biberstein municipality (Allgemeines
Polizeireglement; see below, Relevant domestic law) for having let the
dogs run around freely and disturbing neighbours.
On 19 August 1991 the municipal council, again relying on Section
16, fined the applicants 200 SFr on account of noise nuisance caused
by their dogs (Ruhestörung durch Hunde) in April and August 1991. The
order stated inter alia that "on the basis of the first reprimand in
the year 1989 and the presently renewed complaints, it has
unequivocally been established that the police regulations have been
breached" ("Durch die erste Verwarnung im Jahre 1989 und die heute
erneut vorliegenden Klagen ist der Tatbestand der Verletzung von
Polizeivorschriften eindeutig erfüllt"). A penal order issued on
22 August 1991 on the applicants stated that any fines which were
culpably not paid could be converted into imprisonment.
Following the applicants' objection, the municipal council issued
a decision confirming the fine.
The applicants' appeal against this decision was dismissed by the
Aarau District Court (Bezirksgericht) on 11 March 1992. The Court
relied on incriminating statements of neighbours who had reported the
applicants to the authorities. The applicants who were only aware of
the contents of the statements, not of the authors, unsuccessfully
requested the District Court to have the witnesses heard. In these and
the subsequent proceedings the applicants were represented by a lawyer.
The applicants' public law appeal (staatsrechtliche Beschwerde)
was partly upheld by the Federal Court (Bundesgericht) on
14 August 1992 as in view of the case-law of the European Convention
organs the applicants were entitled to put questions to incriminating
witnesses.
Proceedings were resumed before the Aarau District Court which
heard two persons who had reported the applicants to the authorities.
The witnesses referred in their statements to noise nuisance caused in
1991. On 9 December 1992 the District Court confirmed the fine of
200 SFr. In its judgment the Court concluded that there could be no
doubt that the applicants had not complied with Section 16 of the
Biberstein General Police Regulations. The Court thereby referred to
the many credible complaints of the neighbours; to the fact that the
applicants had previously already been reprimanded; and to its
appreciation of the statements made by the witnesses.
The applicants' public law appeal, in which they complained of
a breach of their constitutional and Convention rights, was dismissed
by the Federal Court on 15 June 1993, the decision being served on
1 July 1993.
Insofar as the applicants complained under Article 2 of Protocol
No. 7 that they had not had their case reviewed by a higher tribunal,
the Court found that the offence of which the applicants had been
convicted, amounting to a misdemeanour (Übertretung), constituted a
minor offence prescribed by law within the meaning of Article 2 para. 2
of Protocol No. 7.
The Federal Court further found that neither the interpretation
of Section 16 of the Biberstein General Police Regulations nor the
assessment of the facts and the taking of evidence had been arbitrary.
Insofar as the applicants complained under Article 8 of the Convention
of a breach of their right to respect for family life, the Court found
that the interference was justified under Article 8 para. 2 of the
Convention as being in the interest of the neighbours concerned.
The Court then dealt with the applicants' complaint under
Article 4 of Protocol No. 7 that the Biberstein municipal council had
on 19 June 1989 and on 19 August 1991 convicted the applicants twice
for the same offence. The Court found that the Aarau District Court
in its judgment of 9 December 1992 had merely considered the earlier
reprimand as an aggravating factor when considering the determination
of the fine, and that it did not transpire from the judgment that the
applicants had been convicted a second time for the previous
occurrences.
Relevant domestic law
Section 16 of the Biberstein General Police Regulations
(Allgemeines Polizeireglement) lays down principles for keeping
animals. According to para. 1, "animals must be kept in such a manner
that nobody is disturbed and that neither human beings nor animals or
things are endangered or damaged" ("Tiere sind so zu halten, dass
niemand belästigt wird und weder Menschen noch Tiere oder Sachen
gefährdet werden oder zu Schaden kommen"). According to para. 3, dogs
shall not run around without supervision. Section 20 of the General
Police Regulations stipulates as a sanction a reprimand or a fine of
up to 200 SFr.
COMPLAINTS
Under Article 6 para. 1 of the Convention the applicants complain
that the legal provision on the basis of which they were convicted was
too vague. Moreover, the courts arbitrarily assessed the facts;
reference is made to the noise from a neighbouring road which is much
more disturbing. The applicants also maintain in this respect a breach
of the presumption of innocence according to Article 6 para. 2 of the
Convention.
Under Article 8 of the Convention the applicants complain of a
breach of their right to respect for private and family life, as the
animals assist them in accomplishing a mission in the old persons'
home.
The applicants complain under Article 2 of Protocol No. 7 that
they did not have a tribunal to review their case.
The applicants also complain under Article 4 of Protocol No. 7
that they were twice punished for the same offence in that the
Biberstein municipal council on 19 August 1991 invoked the reprimand
dated 19 June 1989. Reference is also made to the judgment of the
Aarau District Court of 9 December 1992.
THE LAW
1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention that the domestic courts arbitrarily assessed the facts.
This provision states, insofar as relevant:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by a ...
tribunal."
Insofar as the applicants complain that the decision of the Aarau
District Court was incorrect, the Commission recalls that in accordance
with Article 19 (Art. 19) of the Convention, its only task is to ensure
the observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set out
in the Convention. The Commission refers, on this point, to its
established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3
pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;
No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
The Commission has examined the applicants' complaint about the
assessment of evidence under Article 6 para. 1 (Art. 6-1) of the
Convention.
According to the Convention organs' case-law, it is for the
national courts to assess the evidence before them. The Commission's
task is to ascertain whether the proceedings considered as a whole,
including the way in which evidence was taken, were fair (see Eur.
Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,
para. 26).
In the present case the Aarau District Court convicted the
applicants after hearing two witnesses. The applicants have not
alleged that they were denied the right to put questions to these
witnesses. There is no indication that in these proceedings the
applicants, who were represented by a lawyer, could not put forward
their point of view or any evidence which they considered pertinent,
or that the proceedings were otherwise unfair.
Insofar as the applicants complain of a breach of the presumption
of innocence under Article 6 para. 2 (Art. 6-2) of the Convention, the
Commission finds no issue under this provision.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants complain that the legal provision on the basis of
which they were convicted was too vague. The Commission has examined
this complaint under Article 7 para. 1 (Art. 7-1) of the Convention
which states, insofar as relevant:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national ... law at the time when it was
committed."
The Commission recalls that Article 7 para. 1 (Art. 7-1) of the
Convention embodies the principle that only the law can define a crime
and prescribe a penalty, and the principle that the criminal law must
not be extensively construed to an accused's detriment, for instance
by analogy. It follows from this that an offence must be clearly
defined in law. This condition is satisfied where the individual can
know from the wording of the relevant provision what acts and omissions
will make him liable (see Eur. Court H.R., Kokkinakis judgment of 25
May 1993, Series A no. 260 A, p. 22, para. 52).
In the present case Sections 16 and 20 of the Biberstein General
Police Regulations envisage a punishment of up to 200 SFr inter alia
if animals disturb persons.
The wording of this provision thus makes it sufficiently clear
which acts and omissions are liable, and which punishment is envisaged.
As the Federal Court confirmed in its decision of 15 June 1993, it does
not appear that these provisions were arbitrarily interpreted or
applied when the applicants were fined 200 SFr because their dogs had
caused noise nuisance.
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.
3. Under Article 8 (Art. 8) of the Convention the applicants
complain of a breach of their right to respect for private and family
life, as the animals assist them in accomplishing a mission in the old
persons' home. Article 8 (Art. 8) of the Convention states, insofar
as relevant:
"1. Everyone has the right to respect for his private ... life
...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission recalls its case-law according to which it has
held that the keeping of a domestic pet does not fall within the sphere
of the owner's private life for the purposes of Article 8 (Art. 8) of
the Convention (see No. 6825/74, Dec. 18.5.76, X. v. Iceland, D.R. 5,
p. 86; No. 25517/94, Dec. 3.4.95, unpublished). The Commission does
not find it necessary to determine whether the present case may be
distinguished on the basis of the applicants' submissions. Even
assuming that there was an interference under Article 8 (Art. 8) of the
Convention, it would be justified under Article 8 para. 2
(Art. 8-2) of the Convention.
Thus, the measure complained was based on Sections 16 and 20 of
the Biberstein General Police Regulations and, therefore, "in
accordance with the law" as requested by Article 8 para. 2 (Art. 8-2)
of the Convention. It was also clearly taken "for the protection of
the rights and freedoms of others" within the meaning of this
provision.
Moreover, in view of the applicants' previous reprimand and the
comparatively small amount of the fine imposed, the Commission
considers that the measure, aimed at protecting the applicants'
neighbours from noise nuisance, could reasonably be considered as being
"necessary in a democratic society" within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicants complain under Article 2 of Protocol No. 7 (P7-2)
that they did not have a tribunal to review their case. This provision
states, insofar as relevant:
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence reviewed
by a higher tribunal. The exercise of this right, including the
grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to
offences of a minor character, as prescribed by law ...."
The Commission need not examine whether the applicants' public
law appeal to the Federal Court, in which they complained of a breach
of their constitutional and Convention rights, brought about a review
by a higher tribunal within the meaning of Article 2 para. 1 of
Protocol No. 7 (P7-2-1) (see No. 19028/91, Dec. 9.9.92, D.R. 73 p.
239).
In the Commission's opinion, the offence of which the applicants
were convicted - noise nuisance caused by their dogs - constitutes a
"minor" offence as confirmed by the fine of 200 SFr. According to the
Federal Court's judgment of 15 June 1993, domestic law qualified the
offence as a misdemeanour and thus also regarded it as a minor one.
The Commission therefore considers that the exception to the
right to a review by a higher tribunal, pursuant to Article 2 para. 2
of Protocol No. 7 (P7-2-2), applies.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. Finally, the applicants complain under Article 4 of Protocol
No. 7 (P7-4) that they were twice punished for the same offence in that
the Biberstein municipal council on 19 August 1991 invoked the
reprimand dated 19 June 1989. Reference is also made to the judgment
of the Aarau District Court of 9 December 1992. Article 4 para. 1
(P7-4-1) states:
"1. No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same State for
an offence for which he has already been finally acquitted or
convicted in accordance with the law and penal procedure of that
State."
The Commission notes that the Aarau District Court convicted the
applicants on 9 December 1992 of offences committed in 1991. These
offences undoubtedly occurred after the reprimand issued on
19 June 1989.
It is true that the Aarau District Court in its judgment of
9 December 1992 referred to the reprimand in 1989. However, it did so
in order to confirm its conclusion in respect of the subsequent offence
at issue. In its judgment of 15 June 1993, the Federal Court, which
merely saw an aggravating factor in this reference when determining the
fine, confirmed that it did not transpire that the applicants had been
convicted for occurrences for which they had already been reprimanded.
The remainder of the application is therefore also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy