CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 février 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } AS TO THE ADMISSIBILITY OF   Application No. 16712/90         by G.M., G.E. and    P.B.            against Switzerland     The European Commission of Human Rights (First Chamber) sitting in private on 13 February 1992, the following members being present:                  MM.   J.A. FROWEIN, President of the First Chamber                  F. ERMACORA G. SPERDUTI                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK   Sir Basil HALL              Mr. C.L. ROZAKIS   Mrs.J. LIDDY              Mr.M. PELLONPÄÄ     Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 11 April 1990 by G.M., G.E. and P.B. against Switzerland and registered on 13 June 1990 under file No. 16712/90;   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 first applicant, born in 1934, is an engineer residing in Paris. The second applicant, born in 1941, is a businessman residing in London. The third applicant, born in 1942, is a medical doctor residing at Como in Italy. All applicants are Italian citizens. Before the Commission the applicants are represented by Mr. G. Lüthi, a lawyer practising in Samedan in Switzerland.   The facts of the case, as submitted by the applicants, may be summarised as follows.   The Sud Provizel company, a stock corporation (Aktiengesellschaft), was founded in 1971 by Swiss citizens; its purpose was inter alia to acquire real property. The applicants bought shares in the company and so obtained a proprietorial interest in the houses acquired by the company. Eventually, they owned 91% of the shares.   In 1983 the Federal Office of Justice (Bundesamt für Justiz) informed the company that, contrary to a regulation of the Federal Council of 1972 (Bundesratsbeschluss), it had obtained real property in Switzerland with foreign monies without authorisation for which reason the company was null and void (nichtig).   On 31 October 1983 the Federal Office of Justice introduced an action with the Maloja District Court (Bezirksgericht), requesting determination that the Sud Provizel company was null and void. On 29/30 June 1987 the parties agreed to bring the case before the Cantonal Court (Kantonsgericht) of Graubünden. In these proceedings there were two rounds of written submissions; both parties agreed not to have an oral hearing.   On 14 July 1988 the Cantonal Court upheld the action. The Court found that the Sud Provizel company was null and void, that it was to be liquidated, and that the proceeds fell to the Canton of Graubünden. In its decision the Court relied in particular on S.57 para. 3 of the Swiss Civil Code of 1907 (Zivilgesetzbuch) according to which "if a legal person is annulled by a court as it has pursued immoral or illegal aims, the fortune falls to the municipality concerned, even if it is stated otherwise" ("Wird eine juristische Person wegen Verfolgung unsittlicher oder widerrechtlicher Zwecke gerichtlich aufgehoben, so fällt das Vermögen an das Gemeinwesen, auch wenn etwas anderes bestimmt worden ist").   The appeal of the Sud Provizel company (Berufung) was dismissed by the Civil Division (Zivilabteilung) of the Federal Court (Bundesgericht) on 13 October 1989. The Court found, inter alia, that contrary to the company's view, S.57 para. 3 of the Swiss Civil Code also applied to stock corporations, and had done so at the time of the events concerned. The Court thereby referred to its own previous published case-law.     COMPLAINTS   Under Article 7 of the Convention the applicants complain that at the time when the real property was acquired there was no law providing for the confiscation of the company. In fact the legal basis therefor was only expressly established by a Federal Act on the acquisition of property by foreigners in 1983; thus, previous to this Act, S.57 para. 3 of the Swiss Civil Code had no independent application. In the applicants' case therefore the 1983 Act was applied retroactively.   Under Article 6 of the Convention the applicants complain that in the proceedings before the Swiss courts they were never duly heard. Under Article 1 of Protocol No. 1 the applicants complain of the confiscation of their property. Under Article 14 of the Convention the applicants complain that other foreigners in similar situations have been treated differently and that stock corporations are treated differently from private persons. The applicants also complain of a breach of the 1868 Treaty between Switzerland and Italy on establishment and consular relations.     THE LAW   1. The applicants raise various complaints about the confiscation of their property under Articles 6, 7 and 14 (Art. 6, 7, 14) of the Convention. The applicants also rely on Article 1 of Protocol No. 1 (P1-1), and a Treaty between Switzerland and Italy.   2. The Commission considers that the applicants, who were not parties in the domestic proceedings, own 91% of the shares of the Sud Provizel company. After the dissolution of the company they can therefore claim to be victims of the measures complained of, within the meaning of Article 25 (Art. 25) of the Convention.   3. The applicants complain under Article 1 of Protocol No.1 (P1-1) of the confiscation of their property. However, Switzerland is not a Party to Protocol No.1, and this part of the application is therefore incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   Insofar as the applicants complain of a breach of a Treaty between Switzerland and Italy the Commission recalls that under Article 19 (Art. 19) of the Convention it is only called upon to examine compliance with the undertakings of the High Contracting Parties under the Convention. It follows that this part of the application is incompatible ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.The applicants complain under Article 7 (Art. 7) of the Convention that at the time when the property was obtained there was no law providing for confiscation.   However, even assuming that this provision, which concerns criminal offences, is applicable in the present case, the Commission notes that in its decision of 13 October 1989 the Federal Court stated that S.57 of the Swiss Civil Code provided a sufficient and independent legal basis for the confiscation at issue. The Commission considers that the Federal Court, which thereby referred to its own previous case-law, did not exceed the limits of a reasonable interpretation. 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.   5. The applicants complain under Article 6 (Art. 6) of the Convention that in the domestic proceedings they were not duly heard.   The Commission notes that the applicants have not shown that they attempted to intervene in the proceedings before the Cantonal Court or that they obtained a decision of the Federal Court on the complaint they are now raising before the Commission. The Commission need nevertheless not decide whether the applicants have complied with the requirements as to the exhaustion of domestic remedies within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention since the complaint is in any event inadmissible for the following reasons.   The Commission considers that the company was represented by a lawyer who before the Cantonal Court had sufficient opportunity to put forward written submissions, and expressly waived an oral hearing. 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.   6. Insofar as the applicants complain under Article 14 (Art. 14), taken together with Articles 6 and 7 (Art. 6, 7) of the Convention, inter alia of discrimination with regard to other foreigners, the Commission again need not examine whether in this respect the applicants have complied with the requirements as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. It considers that the applicants have not sufficiently substantiated in what respect other situations to which they refer are comparable to their own situation or that any difference of treatment was based on any of the grounds of discrimination prohibited by Article 14 (Art. 14) of the Convention. It follows that the remainder of the application is 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 THIS APPLICATION INADMISSIBLE.         Secretary to the First ChamberPresident of the First Chamber                  (M. DE SALVIA)         (J.A. FROWEIN)