CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1994

.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. 17748/91                       by Guy ANKERL                       against Switzerland         The European Commission of Human Rights (Second Chamber) sitting in private on 5 July 1994, the following members being present:              MM.    H. DANELIUS, Acting President                  S. TRECHSEL                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, 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 10 December 1990 by Guy Ankerl against Switzerland and registered on 4 February 1991 under file No. 17748/91;         Having regard to:   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on 8 June       1993 and the observations in reply submitted by the applicant on       10 July 1993;         Having deliberated;         Decides as follows:   THE FACTS   Particular circumstances of the case         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant, a Swiss citizen born in 1933, is a sociology professor residing in Geneva.                                     I.         Since 1978 the applicant sub-leased an apartment in Geneva from the Régie Immobilière SA which in turn leased it from the proprietor, the SI Chrysanthemum SA.   Apparently, the applicant had no contract in writing.   The Régie Immobilière SA eventually went bankrupt.   In 1986 the Régie Naef SA, acting in the name of Chrysanthemum, informed the applicant that the building would be renovated and raised.   On 8 May 1987 the Régie Naef SA informed the Régie Immobilière of the end of its lease contract; it also requested the latter to terminate the applicant's sub-lease.         On 14 July 1987 the Régie Naef transmitted to the applicant pay slips (bulletins de versement) for his rent, while stating that it did not thereby recognise the existence of a contract between him and the proprietor.   On 21 July 1987 the Régie Immobilière informed the applicant of the end of the lease as of 28 February 1988.         Eventually, the GPR SA took over administration of the building. The applicant attempted to obtain from the GPR SA a principal lease contract.   Mr. L., the administrator at GPR SA, forwarded the request to the proprietor who refused it.   The GPR SA then transmitted pay slips to the applicant who, by letter dated 29 February 1988, confirmed that he would in future pay the rent into the account mentioned.   This letter remained without a reply.         On 22 April 1988 the applicant and his wife had a meeting with Mr. L.   The discussion apparently concerned the issue whether or not the applicant could remain in his apartment.                                     II.         On 13 October 1988 the SI Chrysanthemum SA requested the Geneva First Instance Court (Tribunal de première instance) to order the vacation of the applicant's apartment.   The applicant contested this as the proprietor had demonstrated the intention to conclude a lease contract with him as the principal lessee.         On 19 May 1989 the Geneva First Instance Court held a hearing at which it attempted to establish the content of the discussion on 22 April 1988.   It first heard Mr. L. who spoke under oath (see below, Relevant domestic law).   Mr. L. stated that in his recollection he had clearly informed the applicant that there no longer existed a lease contract.   Insofar as the applicant had expressed the wish to continue to reside in the apartment, he, Mr. L., had clearly said that he himself could not take any decision in this respect.         The applicant's wife then made a statement, though not under oath (cf. below, Relevant domestic law).   She stated inter alia that Mr. L. had informed them that the building would be raised, and that during renovation work they could occupy another apartment.   The applicant's wife concluded that they had left Mr. L. reassured and optimistic (rassurés et optimistes).   The applicant's wife stated that she could not remember whether Mr. L. had said that he would speak with the proprietor; she had had the impression that he enjoyed a certain autonomy.         Finally, the applicant spoke, claiming that when he concluded the lease contract with the Régie Immobilière SA, he had not realised that he was in fact sub-leasing the apartment.         The Geneva First Instance Court gave its decision on 12 October 1989.   Therein, it held that the parties were not bound by a lease contract, and it ordered the applicant to vacate the apartment.         The Court first summarised the facts of the case and the statements of the persons attending the hearing on 19 May 1989.   It then stated that it had to examine whether the proprietor had given its agreement to a contract, inter alia by letting "the collaborator of the administration explain to the (applicant) that he would refer the matter to the proprietor" ("en laissant exposer à ce dernier, par un collaborateur de la régie, qu'il allait en référer à la société propriétaire").         The Court then considered inter alia, without reference to any particular statement of a person attending the hearing, that "in the circumstances of the particular case, a lease contract was not concluded, neither orally (no proof having been adduced of an oral agreement), nor even by a concluding act" ("dans les circonstances du cas d'espèce - il n'y a pas eu conclusion d'un bail ni verbal <la preuve d'un accord verbal n'est pas rapportée>, ni même par acte concluant").                                    III.         The applicant then filed an appeal which the Court of Appeal (Cour de justice) of the Canton of Geneva   dismissed on 7 June 1990.                                     IV.         In his subsequent public law appeal (recours de droit public) to the Federal Court (Tribunal fédéral) the applicant complained inter alia under Articles 6 and 14 of the Convention that the courts had arbitrarily relied solely on the statement of Mr. L., and disregarded his wife's statement.   The public law appeal states:   <Translation>         "the fact that the representative of one of the parties was       admitted to be heard as a sworn witness creates a flagrant       inequality in respect of the other party who after all was not       under the circumstances in a position to present witnesses who       could be sworn.   The equality of arms guaranteed both by the       Federal Constitution and by the European Convention of Human       Rights was not respected" (public law appeal, p. 17).   <French>:         "le fait d'avoir admis que le représentant d'une partie soit       entendu comme témoin assermenté crée une inégalité flagrante avec       l'autre partie qui elle n'a pas été, par la force des choses, en       mesure de citer des témoins susceptibles d'être assermentés.       L'égalité des armes garantie tant par la Constitution Fédérale       que par la Convention Européenne des droits de l'Homme n'a pas       été respectée".         In the conclusion to his public law appeal the applicant stated:   <Translation>          "There is not the slightest doubt that the proceedings       terminated by the judgment against which I am appealing are       marred by numerous faults and that it constitutes in particular       a violation of Article 4 of the Constitution and of Articles 6       and 14 of the Convention" (public law appeal, p. 22).   <French>         "Il ne fait aucun doute que la procédure ayant abouti à l'arrêt       dont recours est entachée de nombreux vices et qu'elle consacre       notamment la violation de l'article 4 de la Constitution et les       articles 6 et 14 CEDH."         On 3 October 1990 the Federal Court dismissed the public law appeal.   The Court referred inter alia to the applicant's complaint that Mr. L. was heard as a witness under oath, whereas in the applicant's view he should have been assimilated to the party which he represented.   The Court noted that the applicant was confusing the representatives of the company, on the one hand, and mandated persons such as the administrator of a building, on the other.   The Federal Court found that the lower Courts had not arbitrarily interpreted the Geneva Code of Civil Procedure when they did not apply its Section 225 to Mr. L. when heard as a witness.   The Court continued:   <Translation>         "according to the commentators of the Geneva Code of Civil       Procedure, hearing a person for enquiries has only an informative       purpose and no probative value ...   In the present case it was       not therefore arbitrary not to consider the explanations       furnished by [the applicant's wife].   In fact, the applicant has       not at all demonstrated that the Cantonal Court interpreted in       an untenable manner the statements of the witness under oath,       [Mr. L.]."   <French>         "selon les commentateurs de la loi de procédure civile genevoise,       l'audition à titre de renseignement n'a qu'une portée       informative, sans valeur probante ...   Il n'y avait donc rien       d'arbitraire, en l'espèce, à ne pas tenir compte des explications       fournies par [l'épouse du requérant].   Le recourant ne démontre,       du reste, nullement en quoi la cour cantonale aurait interprété       d'une manière insoutenable les déclarations du témoin assermenté,       [M. L.]."   Relevant domestic law         Section 222 of the Geneva Code of Civil Procedure (Loi de procédure civile) states that every person appearing as a witness must make his statement under oath (sous la foi du serment).         According to Section 225 para. 1, certain persons, in particular the spouse of one of the parties, cannot be heard as witnesses. Section 226 provides that the persons mentioned in Section 225 may be heard, though not under oath, and only for information (seulement à titre de renseignement).   COMPLAINTS         The applicant complains under Articles 6 and 14 of the Convention of the unequal treatment as regards the hearing of witnesses.   The Geneva First Instance Court only had three witnesses to prove the exact content of the discussion on 22 April 1988: Mr. L., the applicant, and his wife.   In Geneva, the administrator of a building normally concludes a lease contract.   The Geneva Court heard Mr. L. as a witness under oath, although as representative of the proprietor he had just as much a direct and personal interest in the outcome of the case as the applicant himself.   According to Swiss law, a contract concluded orally is valid.         The applicant submits that testimony given under oath is of crucial importance.   A procedure admitting testimony under oath of only the administrator, but not of the lessee, places the latter in a disadvantageous position.   The applicant concludes that there was unequal treatment in that neither he nor his wife could give testimony under oath.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 10 December 1990 and registered on 4 February 1991.         On 31 March 1993 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and the merits of the application.         The Government's observations were received by letter dated 8 June 1993 and the applicant's observations in reply were dated 10 July 1993.   THE LAW   1.     The applicant complains under Articles 6 and 14 (Art. 6, 14) of the Convention of unequal treatment as regards the hearing of a witness.   2.     Under Article 26 (Art. 26) of the Convention the Commission may deal with the case only after domestic remedies have been exhausted.         The Government contend that the applicant did not exhaust domestic remedies.   They argue that the applicant did not sufficiently substantiate in his public law appeal his complaint under Articles 6 and 14 (Art. 6, 14) of the Convention and thus committed a procedural error, which under the case-law of the Convention should result in non- exhaustion of domestic remedies.   Secondly, the Government submits that the applicant did not raise the same complaints before the Federal Court and the Commission.   It is pointed out that before the Federal Court the applicant questioned an interpretation of the cantonal Code of Civil Procedure applied by the courts of lower instances in deciding on hearing the applicant's wife as a witness under oath, as being arbitrary, unfair and creating a flagrant inequality between the parties.   Before the Commission the applicant relied on Articles 6 and 14 (Art. 6, 14) of the Convention in criticising the same decisions of the lower courts.   The Government consider it evident that the complaints raised before the Commission had never been raised before the Federal Court.         The applicant submits that in fact he motivated his complaint in his public law appeal to the Federal Court under Articles 6 and 14 (Art. 6, 14) of the Convention and considers that before the Federal Court he has raised the same complaints as before the Commission.         The Commission notes that in his public law appeal the applicant expressly complained that "the fact that the representative of one of the parties was admitted to be heard as a sworn witness created a flagrant inequality in respect of the other party".   Moreover, the applicant explicitly invoked Articles 6 and 14 (Art. 6, 14) of the Convention. In the Commission's view he did therefore raise the same complaint as he is now making before the Commission.         The application cannot therefore be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies within the meaning of that provision.   3.     The applicant complains under Articles 6 and 14 (Art. 6, 14) of the Convention that a procedure whereby a court in civil proceedings concerning the existence of a lease contract admits testimony under oath of the administrator of the company (i.e. the proprietor), but not of the lessee or his wife, places them in a disadvantageous position.   4.     The Commission, having regard to the parties' submissions under Articles 6 para. 1 and 14 (Art. 6-1, 14) of the Convention, considers that this application raises complex issues of law and fact which can only be resolved by an examination of the merits.   This complaint cannot, therefore, be declared 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 ADMISSIBLE.        Secretary to the                    Acting President of the       Second Chamber                          Second Chamber           (K. ROGGE)                            (H. DANELIUS)