C.B. AND A.M. v. SWITZERLAND

THE LAW

1. The applicants' remaining complaints are that the Federal Court

in its decision of 5 September 1990 imposed a fine on the applicants

in secret proceedings and in violation of fundamental principles and

that there was no possibility of appeal.

2. The Commission has first examined the applicants' complaint that

a fine was imposed on them in secret proceedings and in violation of

fundamental principles under Article 6 para. 1 (Art. 6-1), first

sentence of the Convention which states:

"In the determination of ... any criminal charge

against him, everyone is entitled to a fair and public

hearing before an independent and impartial tribunal

established by law."

The Government submit, with reference to the judgment of Engel

and others (see Eur. Court H.R., judgment of 8 June 1976, Series A

no. 22, p. 35, para. 82), that under Swiss law the fine was

disciplinary in nature. Moreover, the nature of the offence was not

criminal in that it only concerned particular persons and particular

proceedings, namely those appearing before the Federal Court, and did

not affect general interests of society. The degree of severity of the

penalty, amounting to 100 SFr, was also not such as to bring it under

the sphere of criminal law. Finally, the fine was not listed in the

criminal register and could not be replaced by a prison sentence.

The applicants submit that the exclusive purpose of the fine was

to punish them for allegedly insulting the honour of the Federal Court.

While in defamation proceedings the accused has the opportunity to

prove the truth of the remarks, the present applicants could not do so.

The degree of severity of the punishment, a fine amounting to 100 SFr,

is irrelevant to the applicants. In view of its position towards

citizens, the Federal Court should exercise extreme caution regarding

the observance of the rights enshrined in Article 6 (Art. 6) of the

Convention.

In order to determine whether Article 6 (Art. 6) was applicable

in the present case, the Commission has had regard to the three

alternative criteria laid down in the case-law (see Eur. Court H.R.,

Ravnsborg judgment of 23 March 1994, Series A no. 283-B, paras. 30 et

seq.; judgment of Engel and others, loc. cit.).

The Commission must first ascertain whether the provision

defining the offence at issue, namely Section 31 of the Federal

Judiciary Act, belongs according to the Swiss legal system to criminal

law. The Commission notes that, when such conduct as described in

Section 31 occurs, it is for the Federal Court to examine in the

particular case of its own motion and without the involvement of the

public prosecutor whether there has been an offence under that

provision. Moreover, the provision only deals with offences against

the good order of proceedings before the Federal Court. Finally, the

fines at issue were not entered in the criminal register and could not

be replaced by a prison sentence.

As a result, the Commission cannot find it established that the

provision concerning sanctions against disturbance of the good order

of court proceedings belongs to criminal law under the Swiss legal

system (see Eur. Court H.R., Ravnsborg judgment, loc. cit., para. 33).

It is therefore necessary to turn to the second criterion, namely

the very nature of the offence. The Commission notes that Section 31

applies to persons who make oral or written communications to the court

and thereby breach propriety or disturb the conduct of the proceedings.

This provision does not concern statements made in a different context

or by persons falling outside the circle of people covered by that

provision. It is for the court in the particular proceedings in which

the misconduct has occurred to examine of its own accord whether the

misconduct falls within Section 31.

However, such rules enabling a court to sanction disorderly

conduct in proceedings derive from the indispensable power of a court

to ensure the proper and orderly functioning of its own proceedings and

are a common feature of legal systems of Contracting States. Such

measures come closer to the exercise of disciplinary powers than to the

imposition of a punishment for committing a criminal offence (see Eur.

Court H.R., Ravnsborg judgment, loc. cit. para. 34). As a result, the

kind of proscribed conduct for which the applicants were fined falls

in principle outside the scope of Article 6 (Art. 6) of the Convention.

Finally, the nature and degree of severity of the penalty that

the person concerned risked incurring - the third criterion - may bring

the matter into the "criminal" sphere. However, in the Commission's

opinion, the maximum fine which the applicant risked incurring, i.e.

100 SFr, did not attain a level such as to warrant classification of

the offence as criminal. The Commission also notes that the fine could

not be replaced by a prison sentence.

It follows that Article 6 (Art. 6) of the Convention did not

apply to the proceedings at issue. This part of the application is

therefore incompatible ratione materiae with the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. In respect of this above complaint the applicants have also

invoked Article 7 (Art. 7) of the Convention. Their further complaint

that they did not have the possibility of an appeal falls to be

examined under Article 2 of Protocol No. 7 (P7-2) to the Convention.

Article 7 (Art. 7) of the Convention states:

"No one shall be held guilty of any criminal offence

on account of any act or omission which did not constitute

a criminal offence under national or international law at

the time when it was committed. Nor shall a heavier

penalty be imposed than the one that was applicable at the

time the criminal offence was committed."

Article 2 of Protocol No. 7 (P7-2) states:

"1. Everyone convicted of a criminal offence by a

tribunal shall have the right to have his conviction or

sentence reviewed by a higher tribunal. The exercise of

this right, including the grounds on which it may be

exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, or in

cases in which the person concerned was tried in the first

instance by the highest tribunal or was convicted

following an appeal against acquittal."

The Commission has just found that Article 6 para. 1

(Art. 6-1) of the Convention did not apply to the proceedings at issue,

in particular that they did not concern the "the determination of ...

any criminal charge against (the applicants)" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

As there was no "criminal offence" at issue, Article 7

(Art. 7) of the Convention and Article 2 of Protocol No. 7 (P7-2) also

do not apply. This part of the application is therefore also

incompatible ratione materiae with the Convention within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.