CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1995

.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. 19254/92                       by Urs PILET                       against Switzerland         The European Commission of Human Rights (Second Chamber) sitting in private on 17 January 1995, the following members being present:                Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  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 4 July 1991 by Urs Pilet against Switzerland and registered on 2 January 1992 under file No. 19254/92;         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, may be summarised as follows.         The applicant is a Swiss citizen, born in 1954.   He has a poste restante address (postlagernd) at Basel in Switzerland.                                     I.         On 9 August 1988 the President of the Basel Criminal Court (Strafgerichtspräsident) sentenced the applicant to 90 days' imprisonment on probation and a fine of 500 SFr inter alia for forging documents and repeatedly driving a vehicle without insurance.         The applicant's appeal was partly upheld on 8 March 1989 by a Committee of the Court of Appeal (Ausschuss des Appellationsgerichtes) of the Canton of Basel-Stadt which reduced the sentence to 80 days' imprisonment on probation and a fine of 500 SFr.   The sentence was pronounced orally and the applicant was present at the hearing; he was informed that the reasons would be served in writing.   At the hearing the applicant informed the Court that he would henceforth partly be abroad, and that he would not have a residence in Switzerland.         The applicant terminated his residence which until then had been at Allschwil.   As the Federal Court (Bundesgericht) later established, his mail reached him at a post-box in Basel between 30 June 1988 and 27 September 1989; it was cancelled as he gave no information as to his residence.         On 18 May 1989 the written reasons of the Court of Appeal's judgment were sent to Allschwil.   However, the letter could not be delivered and was returned to the Court of Appeal with the remark "departed without having given new address" ("Abgereist ohne Adressangabe").   No further attempt was made to serve the judgment.         As the applicant failed to pay the fine, the President of the Court of Appeal on 30 October 1989 commuted the fine of 500 SFr to 16 days' imprisonment.   No attempt was made to inform the applicant of this decision.                                     II.         In 1990 the applicant was remanded in custody on other grounds. Upon release on 5 February 1990, he was told that the fine of 8 March 1989 had been commuted into a prison sentence of 16 days.   He was informed that, if he did not pay the fine, he would immediately serve the prison sentence.   The applicant did not have the means to pay the fine and immediately served the prison sentence.                                    III.         The applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht), requesting that the judgment of 8 March 1989 be duly served on him and that he should be granted a period of ten days to file an "appeal" ("Einsprache").         In its reply, the Court of Appeal noted that the applicant had been informed orally on 8 March 1989 that the judgment would be served in writing on him; he should therefore have taken care that postal deliveries would reach him.         In further submissions to the Federal Court the applicant pointed out inter alia that the judgment of 8 March 1989 and the decision of 30 October 1989 had not been served on him, and that therefore he had not been able to file an appeal against the judgment of 8 March 1989.         On 6 August 1990 the Federal Court served the judgment of 8 March 1989 and the decision of 30 October 1989 on the applicant. In the covering letter the Federal Court wrote:         <Translation>              "... We emphasise that no period for filing an appeal is       granted by the Federal Court with the serving (of these       documents).   We leave it to you to draw the necessary conclusions       therefrom.   For the rest, we would draw your attention to the       fact that an appeal against the decision of 8 March 1989 is       probably not possible, and in particular that the applicant did       not state his intention to file a federal plea of nullity upon       the oral pronouncement of judgment."         <Original>              "... Wir betonen, dass mit dieser Zustellung vom Bundes-       gericht keine Einsprachefrist gewährt wird.   Wir überlassen es       Ihnen, aus dieser Zustellung Ihre Konsequenzen zu ziehen. Im       übrigen möchten wir Sie darauf aufmerksam machen, dass eine       Einsprache gegen den Entscheid vom 8. März 1989 wohl nicht       möglich ist und damals insbesondere auch die eidgenössische       Nichtigkeitsbeschwerde aufgrund des mündlichen Urteilsspruchs       nicht angemeldet worden ist."         The applicant sent a further letter to the Federal Court on 4 September 1990.   On 19 September 1990 the Court of Appeal of the Canton of Basel-Stadt informed the Federal Court that no cantonal remedies were available against the judgment of 8 March 1989 and the decision of 30 October 1989.   The applicant submitted further observations to the Federal Court on 28 November 1990.                                     IV.         On 7 January 1991 the Federal Court partly upheld and partly dismissed the applicant's public law appeal.         As regards the Court of Appeal's judgment of 8 March 1989 the Federal Court noted that the applicant had then already had a post-box address, and the Court of Appeal could have served the judgment at that address.   For this reason it could not be concluded that the judgment had previously been duly served.         The Court further noted that no cantonal appeal lay in the Canton of Basel-Stadt against the judgment of 8 March 1989.   In respect of a federal plea of nullity it stated:         <Translation>              "... Such a plea of nullity ... should however have been       filed within ten days and substantiated within twenty days.   It       is the practice of the cantonal authorities to consider as the       relevant date of serving the date when the written reasons have       been served, not when the judgment was orally pronounced.   In       view thereof, the date of 8 March 1989 cannot be relevant for the       calculation of the period of time.   Decisive is rather the date       when the judgment was served by the Federal Court on       6 August 1990.   The applicant did not at all contest the judgment       of 8 March 1989 by means of a plea of nullity.   The same holds       true for the public law appeal ..."         <Original>              "... Eine solche Nichtigkeitsbeschwerde hätte indessen ...       innert zehn Tagen angemeldet und innert zwanzig Tagen begründet       werden müssen.   Angesichts der Praxis der kantonalen Behörden,       wonach nicht die mündliche Eröffnung, sondern die Zustellung des       schriftlichen Urteils als massgebende Eröffnung betrachtet wird,       kann für die Fristberechnung nicht auf den 8. März 1989       abgestellt werden; entscheidend ist vielmehr die Eröffnung durch       das Bundesgericht am 6. August 1990.   Der Beschwerdeführer hat       indessen das Urteil vom 8. März 1989 in keiner Weise mit       Nichtigkeitsbeschwerde angefochten. - Gleiches gilt für die       staatsrechliche Beschwerde ..."         The Federal Court, noting that good faith did not alter its conclusion, dismissed this part of the applicant's public law appeal.         On the other hand, the Court found that the Court of Appeal's decision of 30 October 1989 had not been duly served, and that a time- limit for filing an appeal also commenced on 6 August 1990 when the Federal Court had sent this decision to the applicant.   In this respect the applicant had indeed complied with the time-limit for filing an appeal.   On the merits, the Court found that he had not been heard on the commuting of the fine into a sentence   and it quashed the decision of the Court of Appeal of 30 October 1989.                                     V.         The applicant considered that the Federal Court had contradicted itself and requested the Court to reopen the proceedings: In its letter of 6 August 1990 it had stated that the serving of the judgment of 8 March 1989 did not open a period for filing an appeal, whereas on 7 January 1991 it had dismissed his public law appeal as he had failed to raise a plea of nullity within ten days after the Court had served the judgment.         On 28 May 1991 the Federal Court dismissed the applicant's request, stating inter alia:         <Translation>              "In the covering letter attention was drawn to the fact       that no period for filing an appeal was granted by the Federal       Court with the serving of the judgment.   Rather, the applicant       would himself have to draw the necessary conclusions.   Thus it       was made sufficiently clear that, upon the serving (of the       documents) the applicant would have to undertake the necessary       steps and in particular introduce any remedies. ... In such       circumstances it cannot be said that the Federal Court       erroneously disregarded relevant facts in the file ... Contrary       to the view of the applicant, he could not rely on good faith to       the extent that he could still wait with filing a remedy.       Rather, it transpires that the covering letter of 6 August 1990       was sufficiently clear."         <Original>              "Im Begleitbrief wurde darauf hingewiesen, dass mit dieser       Zustellung von Seiten des Bundesgerichts keine Einsprachefrist       gewährt werde.   Vielmehr sei es Sache des Gesuchstellers, aus der       Zustellung die Konsequenzen zu ziehen.   Damit war hinreichend       klargestellt, dass der Gesuchsteller aufgrund dieser Eröffnung       entsprechende Schritte und insbesondere allfällige Rechtsmittel       hätte einlegen müssen ... Entgegen der Auffassung des Gesuchstel-       lers durfte (er) nach Treu und Glauben nicht annehmen, er könne       mit dem Einlegen von Rechtsmitteln noch zuwarten.   Es zeigt sich       vielmehr, dass der Begleitbrief vom 6. August 1990 hinlänglich       klar war."   COMPLAINTS         In noting Article 6 of the Convention, the applicant complains:   -      that the judgment of the Court of Appeal of 8 March 1989 and its decision of 30 October 1989 were not duly served on him, as they were transmitted to him by the Federal Court, and that the Federal Court did not inform him as to possible remedies;   -      that information given to him by the Federal Court in its covering letter of 6 August 1990 was misleading, in that it stated that no period for filing an appeal was being granted, thus depriving him unfairly of the possibility of filing a remedy; and   -      that the letter of 6 August 1990 was signed by a judge who also presided when the Federal Court took its decision of 28 May 1991.   THE LAW   1.     The applicant complains under Article 6 (Art. 6) of the Convention that the judgment of the Court of Appeal of 8 March 1989 and its decision of 30 October 1989 were not duly served on him; that the Federal Court did not inform him of the possible remedies; and that that Court gave him misleading information in its covering letter of 6 August 1990.         According to Article 6 para. 1 (Art. 6-1) of the Convention, "in the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing."         The Commission notes that the applicant was present when the Court of Appeal orally pronounced its judgment of 8 March 1989.   The Commission considers that the applicant's main complaint in this respect is that he was effectively barred from access to an appeal court to complain of the judgment of 8 March 1989.         The Commission recalls that Article 6 (Art. 6) of the Convention does not guarantee an appeal in criminal proceedings.   Where under domestic law there is an opportunity to lodge an appeal, the guarantees of Article 6 (Art. 6) continue to apply to appeal proceedings, since they form part of the whole proceedings determining the criminal charge at issue (see Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 21, para. 54).   Article 2 of Protocol No. 7 (P7-2) states that everyone convicted of a criminal offence shall have the right to have his conviction or sentence reviewed by a higher tribunal.         Nevertheless, the right of access to appeals jurisdictions is not absolute and may be subject to limitations, since the right by its very nature calls for regulation by the State.   Regulations may be made in particular as regards time-limits which aim at ensuring the proper administration of justice.   Nevertheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see Eur. Court H.R., Philis judgment of 27 August 1991, Series A no. 209, pp. 20 et seq., para. 59; No. 10857/84, dec. 15.7.86, D.R. 48 p. 106).         The applicant filed a public law appeal with the Federal Court in which he requested the possibility of filing an "appeal", without stating whether he was referring to a cantonal appeal before a court of the Canton of Basel-Stadt, or to a federal plea of nullity before the Federal Court.   In reply, the Federal Court transmitted to the applicant on 6 August 1990 the judgment of 8 March 1989 and the decision of 30 October 1989.   It included a covering letter in respect of which the applicant states that it was misleading.         The Commission has examined the covering letter of the Federal Court. It notes that the Court emphasised that "no period for filing an appeal is granted by the Federal Court with the serving (of these documents)".   In the Commission's opinion, the Court was in fact explaining that it could not on its own accord alter the statutory time-limits for filing a cantonal appeal or a federal plea of nullity.         The Court then informed the applicant that he should draw "the necessary conclusions" in particular from the serving of the documents. Thus, the Court clearly told the applicant that he himself would have to assess whether or not an appeal was desirable and possible.         Finally, the Federal Court drew the applicant's attention to the fact "that an appeal against the decision of 8 March 1989 (was) probably not possible, and in particular that the applicant (had not stated) his intention to file a federal plea of nullity upon the oral pronouncement of judgment".   The Commission considers that the Court was referring, first, to the probability, later confirmed by the Court of Appeal in its letter of 19 September 1990 to the Federal Court, that no cantonal appeal was possible.   Second, the Federal Court recalled the fact that upon the oral pronouncement of the judgment of 8 March 1989 the applicant had not stated his intention to file a plea of nullity.   However, there is no indication that the Federal Court was thereby excluding a plea of nullity in writing.         Taken as a whole, the covering letter of 6 August 1990 cannot be interpreted as meaning that a plea of nullity with the Federal Court was generally excluded.   Thus, the Federal Court did not restrict the applicant's access to that Court to such an extent that it impaired the very essence of this right (see Eur. Court H.R., Philis judgment, loc. cit.).         The Commission therefore finds no appearance of a violation of Article 6 (Art. 6).         It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains under Article 6 (Art. 6) of the Convention that the judge who signed the letter of 6 August 1990 also presided when the Federal Court took its decision of 28 May 1991.   The Commission notes that this decision dismissed the applicant's request to have the proceedings of the Federal Court reopened.   However, proceedings concerning the reopening of previous proceedings do not fall under the guarantees of Article 6 (Art. 6) of the Convention (see No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171).   The remainder of the application is therefore incompatible ratione materiae with the provisions of the Convention 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                        President of the       Second Chamber                          Second Chamber           (K. ROGGE)                             (H. DANELIUS)