CEDH · CASELAW;REPORTS;ENG — 24 mai 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                           SECOND CHAMBER                      Application No. 17748/91                             Guy ANKERL                               against                             Switzerland                      REPORT OF THE COMMISSION                      (adopted on 24 May 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-32) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-30). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 31-32). . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 33-51) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 33). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 34). . . . . . . . . . . . . . . . . . . . .6        C.    Article 6 para. 1 of the Convention           (paras. 35-45). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 46). . . . . . . . . . . . . . . . . . . . .8        D.    Article 14 of the Convention           (paras. 47-48). . . . . . . . . . . . . . . . . . .8             CONCLUSION           (para. 49). . . . . . . . . . . . . . . . . . . . .8        E.    Recapitulation           (paras. 50-51). . . . . . . . . . . . . . . . . . .8   DISSENTING OPINION OF MR. L. LOUCAIDES JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS, M.A. NOWICKI, J. MUCHA, D. SVÁBY   . . . . . . . . . . . . . . . . . . . . .9   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 11   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 12   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 is a Swiss citizen, born in 1933 and resident in Geneva.   3.    The application is directed against Switzerland.   The respondent 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 case concerns the applicant's complaint under Article 6 para. 1 and Article 14 of the Convention that the principle of equality of arms had not been respected in proceedings before a Geneva Court on the ground that a witness for the opposing party was heard under oath, whereas the applicant's wife was not.   B.    The proceedings   5.    The application was introduced on 10 December 1990 and registered on 4 February 1991.   6.    On 31 March 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 6 para. 1 of the Convention.   7.    The Government's observations were submitted on 8 June 1993 and the applicant's observations on 10 July 1993.   8.    On 5 July 1994 the Commission declared the application admissible.   9.    In additional observations of 17 October 1994 the Government submitted that the applicant had not complied with the requirements of Article 26 of the Convention.   The applicant submitted further observations on 7 October 1994.    The Commission found on 11 April 1995 that there was no basis for applying Article 29 of the Convention.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (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   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   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   12.   The text of this Report was adopted on 24 May 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   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.   14.   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.   15.   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   16.   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.   The applicant did not have a written contract.   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 termination of its lease contract; it also requested the latter to terminate the applicant's sub-lease.   17.   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 termination of the lease as of 28 February 1988.   18.   Eventually, the GPR SA took over the administration of the building.   The applicant attempted to obtain from the GPR SA a principal lease contract.   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.   19.   On 22 April 1988 the applicant and his wife had a meeting with L. The discussion apparently concerned the issue whether or not the applicant could remain in his apartment.   20.   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.   In his reply to the plaintiff's action, the applicant contested this as the proprietor had demonstrated the intention to conclude a lease contract with him as the principal lessee.   21.   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 L. who spoke under oath.   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, L., had clearly said that he himself could not take any decision in this respect.   22.   The Court then heard as a sworn witness V., an employee of the Régie Naef, who stated that the applicant had been paying the rent to the Régie Naef until the end of 1987.   R., the representative of the SI Chrysanthemum, who had not been sworn, testified that he had not wished to conclude the contract with the applicant and that he had informed L. accordingly.   He stated that initially he would not have been opposed to concluding a contract, but that he had subsequently changed his mind as the relations with the applicant became strained.   23.   The applicant's wife then made a statement, though not under oath.   She stated inter alia that 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 L. reassured and optimistic (rassurés et optimistes).   The applicant's wife stated that she could not remember whether L. had said that he would speak with the proprietor; she had had the impression that he enjoyed a certain autonomy.   24.   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.   25.   The Geneva First Instance Court gave its decision on 12   October 1989.   It held that the parties were not bound by a lease contract, and it ordered the applicant to vacate the apartment.   26.   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").     27.   The Court found, 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").   28.   The applicant then filed an appeal which the Court of Appeal (Cour de justice) of the Canton of Geneva   dismissed on 7 June 1990. The Court did not pronounce itself on the issue that the applicant's wife had not been heard as a witness under oath.   29.   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 L., and disregarded his wife's statement.   He also complained that the representative of one of the parties had been admitted to be heard as a sworn witness and that this created an inequality in respect of the other party who had not been under the circumstances in a position to present witnesses who could be sworn.   30.   On 3 October 1990 the Federal Court dismissed the public law appeal.   The Court referred inter alia to the applicant's complaint that 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 L. when hearing him as a witness.   The Court continued:   <Translation>        "according to the commentators of the Geneva Code of Civil      Procedure, hearing a person as a source of information 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, [ 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,      [ L.]."   B.    Relevant domestic law   31.   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).     32.   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 to give information (seulement à titre de renseignement).   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   33.   The Commission has declared admissible the applicant's complaint under Article 6 para. 1 and 14 (Art. 6-1, 14) of the Convention that the principle of equality of arms had not been respected in the proceedings in view of the fact that the witness for the proprietor was heard under oath, whereas his wife was not.   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,   -     whether there has been a violation of Article 14 of the Convention taken together with Article 6 para. 1 (Art. 14+6-1) of the Convention.   C.    Article 6 para. 1 (Art. 6-1) of the Convention   35.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing ... by a tribunal..."   36.   The applicant submits that the Geneva First Instance Court only heard three persons to ascertain the outcome of the meeting on 22 April 1988: L., the applicant and his wife.   He points out that in Geneva, the administrator of a building normally concludes a lease contract.   The Court heard L.(the administrator) as a witness under oath, although as a representative of the proprietor he had as much personal interest in the outcome of the case as the applicant himself. The applicant's wife only made a statement of no probative value, not being legally entitled to testify under oath.   The Court heard the applicant only for information.   The applicant further submits that testimony given under oath was of crucial importance for the outcome of the proceedings.   A procedure admitting testimony under oath of only one party, but not the other, placed the latter in a disadvantageous position.   37.   The Government submit that the proprietor was represented in the Geneva First Instance Court by L.   L. had acted upon the mandate of the administering company, who in turn had acted upon the mandate of the proprietor.   Thus he could not be identified with the proprietor,   not being its legal representative and not being authorised to conclude a lease contract, unless on specific authorisation by the proprietor. Consequently, he must be heard as a witness since he was not a party to the proceedings concerning the existence of a lease contract.   There was no inequality between parties as the notion of inequality implies unequal treatment in comparable situations.   The situation of the parties to the proceedings was not comparable.   It was only the administering company which could have put forward the evidence concerning the meeting of 22 April 1988, the applicant being in no position to do so, as there were no other witnesses whom he could have proposed.   38.   The Government further submit that the Geneva First Instance Court in its judgment did not make any reference to any particular statement of the persons who had testified before this Court.   The Court did not rely on any particular statement, including that of L. Thus there is no indication that the fact that L. spoke under oath had any relevance to the Court's conclusions as to the credibility of his evidence.   39.   The Commission recalls that the Convention does not explicitly secure the right to have witnesses called, or heard under oath, in civil proceedings.   The right to call and question witnesses in civil proceedings is, however, an element in the right to a fair hearing in Article 6 para. 1 (Art. 6-1) of the Convention.   The principle of equality of arms is one of the features of the wider concept of fair trial.   As regards litigation involving opposing private interests, the equality of arms implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à- vis his opponent (Eur. Court H.R., Dombo Beheer judgment of 27 October 1993, Series A no. 274, pp. 18-19, paras. 31-33).   40.   Turning to the present case, the Commission notes that the issue before the Geneva First Instance Court was whether a lease contract had existed between the parties.   L., the administrator of the building, contested this, claiming that he was not competent to conclude a contract.   The applicant, on the other hand, claimed that the administering company had intended to conclude a lease contract with him and that the outcome of the meeting on 22 April 1988 supported his belief that such a contract had existed by virtue of an oral agreement, and that he could remain in the apartment.   41.   Three persons had been present at the meeting of 22 April 1988, namely the applicant, his wife and L.   Thus, when attempting to reconstruct the content of the meeting of 22 April 1988 before the Geneva First Instance Court, the applicant placed importance on the statement of his wife as she was the only witness who could confirm his allegation that an oral agreement had indeed been concluded.   The Court heard L., the applicant and his wife.   Only L. was sworn as a witness under oath, not the applicant's wife.   42.   The Commission recalls that it is a legal principle in many countries that a party in a civil case cannot be heard as a witness under oath in his or her own case. The same principle often extends to persons who are closely related to a party, for instance a husband or wife, children and other close relatives. There are good reasons for such an exception from the normal rules. Indeed, persons having close personal relations to a party would be put in a difficult conflict of conscience and loyalty if they would either have to give information which was harmful to that party or expose themselves to the risk of being punished for perjury.   43.   The Commission also observes that there were further elements before the Geneva First Instance Court, such as the absence of any written document confirming that a contract had been concluded and the exchange of letters between the parties. The Court also heard statements of other persons: V., an employee of the former administering company, stated that the applicant had been paying the rent to this company until the end of 1987;   R., the representative of the plaintiff, explained that he had not wished to conclude the contract with the applicant. In its judgment, the Court summarised the statements of all the persons who had testified.   The Court, without reference to any particular statement, found that it had not been proven that a written or oral contract had been concluded between the parties. Furthermore, the Commission notes that the statement of the applicant's wife (para. 23) appears to have been rather vague and inconclusive.   44.   In the light of the above considerations, the Commission considers that the present case can be distinguished from the Dombo Beheer case both in principle (para. 42) and on the facts (para. 43).   45.   In the circumstances, although there was a formal difference in that L. was heard under oath whereas the applicant's wife was not heard under oath, the Commission finds that there is no indication that the proceedings as a whole were unfair.   CONCLUSION   46.   The Commission concludes, by seven votes to six, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.    Article 14 (Art. 14) of the Convention   47.   The applicant complains under Article 14 of the Convention taken together with Article 6 para. 1 (Art. 14+6-1) of the Convention about unequal treatment as regards the hearing of witnesses.   48.   However, in its examination above of the applicant's allegations under Article 6 para. 1 (Art. 6-1) of the Convention, the Commission has already dealt with the issue of equality of arms.   The Commission considers that no separate issue arises under Article 14 of the Convention taken together with Article 6 para. 1 (Art. 14+6-1) of the Convention.   CONCLUSION   49.   The Commission concludes unanimously that no separate issue arises under Article 14 in conjunction with Article 6 para. 1 (Art. 14 +6-1) of the Convention.   E.    Recapitulation   50.   The Commission concludes, by seven votes to six, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (see para. 46).   51.   The Commission concludes unanimously that no separate issue arises under Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention (see para. 49).   Secretary to the Second Chamber        President of the Second Chamber           (M.-T. SCHOEPFER)                       (H. DANELIUS)                                                    (Or. English)               DISSENTING OPINION OF Mr. L. LOUCAIDES,           JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS,                M.A. NOWICKI, J. MUCHA, D. SVÁBY          I regret but I am unable to agree with the conclusion of the majority of the Commission that there has been no violation of Article 6 para. 1 of the Convention.        The issue before the Geneva First Instance Court was whether a lease contract had existed between the parties.   L., the administrator of the building, contested this, claiming that he was not competent to conclude a contract.   The applicant, on the other hand, claimed that the administrative company had intended to conclude a lease contract with him and that the outcome of the meeting on 22 April 1988 supported his belief that such a contract had existed by virtue of an oral agreement, and that he could remain in the apartment.        Three persons had been present at the meeting of 22 April 1988, namely the applicant, his wife, and L.   Thus, when attempting to reconstruct the content of the meeting of 22 April 1988 before the Geneva First Instance Court, the applicant placed importance on the statement of his wife as she was the only witness who could confirm his allegation that an oral agreement had indeed been concluded.        At the hearing, the Geneva First Instance Court, when aiming to determine the content of the meeting of 22 April 1988, heard L., the applicant and his wife.   Only L. was sworn as a witness under oath, not the applicant's wife.        The Geneva First Instance Court found that no written or oral contract had been concluded between the parties.   It is true that the Court did not rely on the statement of any particular person who had testified at the hearing.   Nevertheless, given that only three persons had been present at the meeting of 22 April 1988, the Court must have relied on L.'s statement rather than the applicant's view, as confirmed by his wife.        The Federal Court found that the statement of the applicant's wife had no probative value ("sans valeur probante").   The Federal Court thus expressly confirmed that there was a formal difference in the quality of evidence given by L. as opposed to the statement given by the applicant's wife.        The applicant's wife was prevented by law from making a statement as a witness under oath.   Thus, Section 225 para. 1 on the Geneva Code of Civil Procedure expressly states that the spouse of one of the parties cannot be heard as a witness.        According to the Convention organs' case-law, importance must be "attached to appearances and to the increased sensitivity of the public to the fair administration of justice" (Eur. Court H.H., Borgers judgment of 30 October 1991, Series A   No.214-B, p. 31, para. 24).        It is not up for the Convention organs to indicate those means to States which will ensure that their legal systems are in compliance with the requirements of a fair hearing under Article 6 para. 1 of the Convention (see Eur. Court H.R., Colozza judgment of 12 February 1985, Series A no. 89, p. 15 et seq. para. 30).   It suffices to point out that in the proceedings before the Geneva courts the applicant was both formally and in fact placed at a disadvantage since L. could make a statement as a witness under oath whereas the applicant's wife could not.   Moreover, the testimony of the applicant's wife was treated to be of no probative value by virtue only of her husband/wife status. The testimony of a husband/wife in respect of a case involving the spouse may be approached with caution but should not, in my opinion, be rejected from the outset merely because of this status.        In my opinion the applicant was placed at a substantial disadvantage vis-à-vis his opponent and, consequently, the requirement of equality of arms has not been respected.   Thus, the applicant did not have a fair hearing within the meaning of Article 6   para. 1 of the Convention.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________   10 December 1990          Introduction of application   4 February 1991           Registration of application   Examination of admissibility   31 March 1993             Commission's decision to communicate the                          case to the respondent Government and to                          invite the parties to submit observations                          on admissibility and merits   8 June 1993               Government's observations   10 July 1993              Applicant's observations in reply   5 July 1994               Commission's decision to declare                          application admissible   Examination of the merits   2 August 1994             Decision on admissibility transmitted to                          parties. Invitation to parties to submit                          further observations on the merits   7 October 1994            Applicant's observations   17 October 1994           Government's observations   7 December 1994           Commission's consideration of state of and 11 April 1995         proceedings and decision not to apply                          Article 29 of the Convention   17 May 1995               Commission's deliberations on the merits,                          final votes and consideration of text of                          the Report   24 May 1995               Adoption of Report