CEDH · CASELAW;REPORTS;ENG — 23 octobre 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                          Application No. 18990/91                            Armin Nideröst-Huber                                   against                                 Switzerland                            REPORT OF THE COMMISSION                        (adopted on 23 October 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. 16-25). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16-24) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (para. 25) . . . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 26-40). . . . . . . . . . . . . . . . . . . . . . . . 5         A.    Complaint declared admissible            (para. 26) . . . . . . . . . . . . . . . . . . . . . . . 5         B.    Point at issue            (para. 27) . . . . . . . . . . . . . . . . . . . . . . . 5         C.    As regards Article 6 para. 1 of the Convention            (paras. 28-40) . . . . . . . . . . . . . . . . . . . . . 5              CONCLUSION            (para. 40) . . . . . . . . . . . . . . . . . . . . . . . 7   DISSENTING OPINION OF Mr. G. JÖRUNDSSON JOINED BY MM. M.P. PELLONPÄÄ and B. MARXER. . . . . . . . . . . . . 8   DISSENTING OPINION OF Mr. I. CABRAL BARRETO . . . . . . . . . . . . 9   APPENDIX :        DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . .10   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 1940 and resident in Rickenbach (Switzerland).   He was represented before the Commission by Mr. M. Ziegler, a lawyer practising in Lachen.   3.     The application is directed against Switzerland.   The respondent Government were represented by Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice.   4.     The case concerns the failure of the Federal Court to serve on the applicant observations of the Schwyz Cantonal Court on a civil law appeal lodged by him.   The applicant invokes Article 6 of the Convention.   B.     The proceedings   5.     The application was introduced on 17 October 1991 and registered on 24 October 1991.   6.     On 1 December 1993 the Commission (Second Chamber) 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 its admissibility and merits.   7.     The Government's observations were submitted on 18 February 1994. The applicant replied on 1 June 1994 after one extension of the time- limit.   8.     On 17 January 1995 the Commission (Second Chamber) declared the application admissible.   9.     The text of the Commission's decision on admissibility was sent to the parties on 22 January 1995 and they were invited to submit such further information or observations on the merits as they wished.   No observations were submitted.   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, Acting President                  S. TRECHSEL                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL   12.    The text of this Report was adopted on 23 October 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.    The Commission's decision on the admissibility of the application is annexed hereto.   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.    In December 1985, following a change in the majority of share- holders, the applicant was dismissed without notice from his posts as president of the board of management (Verwaltungsratspräsident) of a limited company incorporated under Swiss law (Aktiengesellschaft) and managing director (Geschäftsführer), respectively.   17.    On 29 July 1986 the applicant brought an action for payment of outstanding salary and compensation for dismissal against the company.   18.    On 22 September 1988 the Schwyz District Court (Bezirksgericht) dismissed the applicant's action.   19.    On 19 June 1990 the Schwyz Cantonal Court (Kantonsgericht) dismissed the applicant's appeal (Berufung).   The Court found that the applicant's dismissal without notice was justified as an important reason for that dismissal existed.   In the course of the struggle for power between the applicant, who was supported by a part of the share- holders, and the new majority of share-holders, the applicant had not distinguished his own interests from those of the company and neglected the company's interests.   Thus, the applicant's conduct had destroyed the confidence of the defendant in the applicant's loyal management of the company.   20.    On 12 October 1990 the applicant introduced at the Cantonal Court a further appeal (Berufung) to the Federal Court (Bundesgericht).   21.    On 22 October 1990 the Cantonal Court transmitted the appeal and the file to the Federal Court and commented on the applicant's appeal. In its comments the Cantonal Court stated inter alia that the basis of confidence had been shattered because of the applicant's refractory behaviour over the years and that the applicant had improperly accused the District Court of bias.   The comments of the Cantonal Court were not transmitted to the parties.   22.    On 12 December 1990 the defendant submitted observations, which were transmitted to the applicant.   23.    On 1 March 1991 the Federal Court dismissed the applicant's appeal.   The Federal Court, in a detailed reasoning, found that the Cantonal Court had correctly assumed that the applicant's dismissal without notice was justified.   The applicant had, by his refractory behaviour as managing director, continuously ignored the interests of the former minority share-holders.   The company, with the changed majority of share-holders, could not be expected to continue the employment contract and had the right to dismiss him without notice. The Federal Court's judgment was served on the applicant on 30 April 1991.   24.    On 2 May 1991 the Federal Court, upon the applicant's request, transmitted to him the Cantonal Court's comments of 22 October 1990.   B.     Relevant domestic law   25.    Section 56 of the Federal Judiciary Act (Bundesrechtspflege- gesetz) reads as follows:         (Translation)         "The Cantonal authority has to inform the other party immediately       of the filing of the appeal, even when it appears to be lodged       out of time.   Within a week the Cantonal authority has to submit       to the Federal Court the writs of appeal, a copy of its decision       and of previous procedural decisions as well as the complete file       and its possible observations.   It has to inform the Federal       Court about the date on which the impugned decision was served       on the parties, the date at which the appeal was received or       posted and when the opposing party was informed."   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   26.    The Commission has declared admissible the applicant's complaint that the Federal Court failed to serve on him observations of the Schwyz Cantonal Court on a civil law appeal lodged by him.   B.     Point at issue   27.    Accordingly the issue to be determined is whether there has been a violation of the applicant's right to a fair hearing, as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   28.    The applicant complains of a violation of the principle of equality of arms, because he did not receive the Cantonal Court's comments of 22 October 1990 during the proceedings before the Federal Court.   He relies on Article 6 para. 1 (Art. 6-1) of the Convention which, as far as relevant, reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing       within a reasonable time by an independent and impartial       tribunal established by law..."   29.    The applicant submits that in its observations of 22 October 1990 the Cantonal Court made wrong or at least questionable submissions to which he could not react.   However, the principle of equality of arms requires that important legal submissions must be served on the parties in order to allow them to react thereto.   The right to make observations under Section 56 of the Federal Judiciary Act does make a Cantonal Court a party to the proceedings before the Federal Court because in making observations such a court makes statements in favour of a party.   As such observations emanate from an official body, they are practically more important than the submissions of the opposing party.   There is therefore a shift in the equality of arms in favour of the party it supports, which necessitates that the appellant must be able to receive and comment on the observations.   30.    The applicant submits further that, in any event, the Federal Court's failure to serve the Cantonal Court's observations on him violated his right to a fair hearing.   The observations contained new, and, in his view, incorrect elements which the Federal Court adopted in its judgment.   But even if the observations did not relate to new elements, the Cantonal Court's remarks were likely to show him in an unfavourable light before the Federal Court.   31.    In the Government's view no issue arises with regard to the principle of equality of arms as this principle does not concern the relations between a party and the deciding authority.   In any event, the fact that the applicant had no possibility to comment on the Cantonal Court's observations did not infringe the principle of fair trial.   32.    The Government also point to the specific function of the observations under Section 56 of the Federal Judiciary Act in the proceedings before the Federal Court.   The scope of such observations is limited as they must not contain any new statement of facts.   Their purpose is to allow the Cantonal authority to comment on legal questions invoked for the first time in the appeal, to rectify erroneous or tendentious interpretations of the judgment, to clarify ambiguous passages of the judgment and to comment on complaints about obvious mistakes allegedly made by the court.   33.    The Government further submit that in the present case the observations of the Cantonal Court were very short and merely summed up its judgment.   They only referred to elements already contained in the judgment and neither supplemented the facts nor the legal reasoning.   The Federal Court adopted the Cantonal Court's findings on the facts as contained in the judgment, without relying on the Cantonal Court's observations.   When the Federal Court described the applicant's conduct with a concise formula used by the Cantonal Court in its observations ("renitent" for systematic opposition) it did not depart from the Cantonal Court's judgment.   34.    The Government also argue that civil proceedings should not be aligned to criminal proceedings in an artificial way, as the requirements inherent in the concept of fair trial are stricter with regard to criminal proceedings and Contracting States have a greater latitude when dealing with civil cases.   In the context of the civil proceedings the requirements of Article 6 (Art. 6) are met if, like in the present case, the possibility for a second exchange of memorials exists if the Cantonal Court's observations would have contained new and serious arguments.   35.    The Commission notes that the applicant complains of a violation of the principle of equality of arms.   This principle concerns the procedural equality of the parties in court proceedings, and there is no appearance of any violation of that principle in the present case.   36.    However, the wider concept of a fair hearing in Article 6 para. 1 (Art. 6-1) of the Convention also includes various other requirements. One such requirement is that the court shall not, in principle, base its decision on any material which is unknown to the parties to the proceedings and on which they have not had the opportunity to comment.   37.    In the present case, it is uncontested that the Cantonal Court's comments on the case, which were submitted to the Federal Court on 22 October 1990 together with the applicant's appeal, were not communicated to the applicant before the Federal Court decided on the appeal.   38.    The Government submit that the observations of the Cantonal Court were very short and merely summed up its judgment.   However, it must be assumed that where, as in the present case, a court makes substantive comments on an appeal against one of its judgments, these comments cannot lack relevance.   This is so even if the comments do not add anything substantially new to what was already stated in the judgment against which the appeal was lodged but repeat in a different wording, or give special emphasis to, parts of the reasoning in the judgment.   As regards the present case it also appears that the Federal Court, when dismissing the appeal, did so in terms which bore some resemblance to the Cantonal Court's comments which had not been communicated to the applicant.   39.    In these circumstances, the Commission considers that the fact that the Cantonal Court's comments were not communicated to the applicant and he was not given the opportunity of replying to them before the Federal Court ruled on his appeal was an infringement of his right to a fair hearing as referred to in Article 6 para. 1 (Art. 6-1) of the Convention.         CONCLUSION   40.    The Commission concludes, by 26 votes to 4, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Commission       Acting President of the Commission         (H.C. KRÜGER)                          (H. DANELIUS)                                                             (Or. English)                   DISSENTING OPINION OF Mr. G. JÖRUNDSSON               JOINED BY MM. M.P. PELLONPÄÄ and B. MARXER         Contrary to the majority of the Commission, I am of the opinion that there has been no violation of the applicant's rights under Article 6 of the Convention in the present case.         I recall that the principle of equality of arms is only one feature of a wider concept of a fair trial and implies that each party shall have a reasonable opportunity of presenting his case to the Court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent (Eur. Court H.R., Dombo Beheer B. V. judgment of 27 October 1993, Series A no. 274, p. 19, para. 33; No. 7450/76, Dec. 28.2.77, D.R. 9 p. 110).         The applicant submits that the Cantonal Court by filing observations supported the opposing party and thus became itself a party to the proceedings.         I recall that Article 6 para. 1 of the Convention requires in criminal cases that the accused receives observations made by the prosecution or the procurator general in proceedings before courts of appeal or cassation irrespective of their contents (see M.B. v. Austria, Comm. Report 8.9.94, para. 56).         However, in the present case the observations in question were submitted in civil proceedings.   In this respect I recall that an attorney general acting before a supreme court, may under certain circumstances, in particular when he recommends the dismissal of an appeal, be considered objectively speaking as opposing party to an appellant in civil proceedings (see Lobo Machado v. Portugal, Comm. Report 19.5.94, para. 53, at present pending before the Court).         In the present case the observations in question were submitted by a court, which as such was bound to respect the principle of impartiality.   As it is the task of a court in civil proceedings to find against one of the litigant parties, the fact that the Cantonal Court did find against the applicant cannot make it a party to the appeal proceedings, nor the fact that it filed observations, in accordance with domestic law, with the Federal Court in which it relied on its own judgment.         In this respect, it should also be observed that during the proceedings before the Federal Court the observations of the Cantonal Court were transmitted to neither party.   Moreover, the applicant has not shown that the observations in any way supplemented the facts or the legal reasoning already contained in the judgment.   We here note that in its judgment of 19 June 1990 the Cantonal Court had dealt at length with the applicant's performance as managing director.   The Cantonal Court's comments of 22 September 1990 only summarised its previous judgment.         I therefore consider that, in the proceedings before the Federal Court, no problem arises as to the equality of arms between the applicant and the defendant company.   Moreover, the Federal Court's failure to transmit the Cantonal Court's comments to the parties did not otherwise render the proceedings unfair.                                                          (Or. French)                   DISSENTING OPINION OF MR. I CABRAL BARRETO         Even if I fail to see how, in the proceedings examined in the Lobo Machado case, the intervention of the State Counsel's Office goes against Article 6 para. 1 (see my dissenting opinion appended to the Commission's Report), I wish to support the dissenting opinion of my colleague, Mr. G. Jörundsson: I find it difficult to consider a court as somehow allied to a party.         I consider that the Cantonal Court is, objectively speaking, impartial; to my mind, its conduct in the proceedings in question can be seen as an attempt to collaborate between the judicial bodies in order to assist the Federal Court.