CEDH · CASELAW;REPORTS;ENG — 9 septembre 1993

.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 }                    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