P.S. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 20572/92
by P. S.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 October 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 21 May 1992 by
P. S. against Switzerland and registered on 2 September 1992 under file
No. 20572/92;
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 4 May
1994 and the observations in reply submitted by the applicant on
4 July 1994;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The applicant, born in 1931, is a Swiss citizen residing at
Rothenthurm in Switzerland.
a. Particular circumstances of the case
I.
The applicant was involved in execution proceedings on account
of debts arising from mortgage bonds. He contested the execution by
introducing an action (Aberkennungsklage) with the Horgen District
Court (Bezirksgericht). In his submissions he threatened to kill three
judges involved in other proceedings if his action was not accepted.
In a letter addressed to the president of the governing board
(Verwaltungsratspräsident) of a bank the applicant further threatened
to kill four judges if he did not duly receive an answer to his letter.
In view thereof, the Zurich Court of Appeal (Obergericht) on
23 August 1991 convicted the applicant in appeal proceedings of
repeated attempted compulsion (wiederholte versuchte Nötigung) and
sentenced him unconditionally to three months' imprisonment.
The applicant filed a plea of nullity which the Zürich Court of
Cassation (Kassationsgericht) on 25 January 1992 declared inadmissible
as the applicant could file a plea of nullity with the Federal Court.
II.
Against the decision of the Court of Cassation the applicant
filed a public law appeal (staatsrechtliche Beschwerde) with the
Federal Court (Bundesgericht), alleging in particular that his
statements did not amount to compulsion. Previously, the applicant had
also filed a plea of nullity (Nichtigkeitsbeschwerde) with the Federal
Court against the judgment of the Zurich Court of Appeal, though the
plea of nullity remained suspended until the Zurich Court of Cassation
would give its decision.
On 20 February 1992 the President of the Court of Cassation
(Kassationshof) of the Federal Court ordered the applicant to pay
advance court costs of 2,000 SFr for the public law appeal and of 2,000
SFr for the plea of nullity. The order stated that non-payment within
the time-limit would result in the inadmissibility of the remedies.
The applicant did not pay the court costs. On 3 March 1992 the
applicant wrote to the President of the Court of Cassation of the
Federal Court, stating that the latter was not competent to impose
court costs in respect of the public law appeal.
On 26 March 1992 the Court of Cassation of the Federal Court
rejected the applicant's public law appeal and plea of nullity as the
applicant had not paid the advance court costs. The first page of the
decision stated as the subject matter "Criminal Proceedings; assessment
of evidence; repeated attempted compulsion" ("Strafverfahren;
Beweiswürdigung; wiederholte versuchte Nötigung").
b. Relevant domestic law
Before the Federal Court (Bundesgericht), a public law appeal
(staatsrechtliche Beschwerde) serves to complain about the violation
of constitutional rights, inter alia procedural rights (see Section 84
para. 1 <a> of the Federal Judiciary Act <Organisationsgesetz>). A
plea of nullity (Nichtigkeitsbeschwerde) serves to complain about a
breach of Federal law (see Section 269 para. 1 of the Federal Code on
Criminal Procedure <Bundesstrafprozessordnung>).
According to Section 150 of the Federal Judiciary Act whoever
files an application with the Federal Court shall upon the President's
order provide a security for the probable court costs. If there are
special reasons the Court may waive the security partly or in its
entirety. If the time limit for providing the security expires without
payment, the application will not be dealt with.
COMPLAINTS
1. In his application before the Commission the applicant complains
under Article 6 of the Convention that the Federal Court imposed
advance court costs of 2,000 SFr on him in respect of his public law
appeal. He claims that Section 150 of the Federal Judiciary Act is
unlawful and that he has a right to apply to that Court irrespective
of his financial situation.
In his reply to the observations of the Government (see below,
PROCEEDINGS BEFORE THE COMMISSION) he also complains of the imposition
of court costs in respect of his plea of nullity to the Federal Court.
2. The applicant also complains of a breach of his right to a fair
trial under Article 6 of the Convention in that the Federal Court on
the first page of its decision of 26 March 1992 stated that the case
concerned the "assessment of evidence" although he, the applicant, had
not complained about the assessment of evidence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 May 1992 and registered on
2 September 1992.
On 2 March 1994 the Commission decided to communicate the
complaint about the fines imposed on the applicant.
The Government submitted their observations on 4 May 1994 and the
applicant his observations in reply on 4 July 1994.
Considerations
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Federal Court imposed advance court costs of
2,000 SFr on him in respect of his public law appeal. Article 6 para.
1 (Art. 6-1) states, insofar as relevant:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ...
by (a) tribunal established by law."
The Government submit that Article 6 (Art. 6) of the Convention
is not applicable to the proceedings at issue which related to the
applicant's public law appeal before the Federal Court. Before the
Commission he did not complain about the imposition of costs in respect
of his plea of nullity. The public law appeal was only concerned with
the decision of the Zurich Court of Cassation of 25 January 1992 which
declared his plea of nullity inadmissible. The Government further
submit that the applicant has not complied with the requirement as to
the exhaustion of domestic remedies within the meaning of Article 26
(Art. 26) of the Convention in that before the Federal Court he did not
request exemption from the court costs. Finally, the Government submit
that the imposition of court costs in the present case was called for
in the interests of the good administration of justice.
The applicant submits that Article 6 (Art. 6) of the Convention
is applicable and has been violated in the present case. He complains
in particular of the imposition of court costs in respect of both his
public law appeal and his plea of nullity before the Federal Court.
He submits that his public law appeal was filed against the Zurich
Court of Appeal. The Federal Court was not competent to impose advance
court costs. At that time the applicant had no money as his house had
just been auctioned at a loss; moreover, he was unemployed and did not
receive any unemployment benefits. The applicant claims that he has
directly felt the consequences of the decision of the Federal Court in
that thereafter he had to serve his prison sentence.
a) The Commission notes that in his original application before the
Commission the applicant complained of the imposition of advance court
costs in respect of the public law appeal which he had filed before the
Federal Court. According to these submissions the applicant's public
law appeal was directed against the decision of the Zurich Court of
Cassation of 25 January 1992.
In its decision of 25 January 1992 the Zurich Court of Cassation
declared the applicant's plea of nullity inadmissible as he could have
filed a plea of nullity with the Federal Court. The public law appeal
proceedings before the Federal Court thus concerned the issue of the
admissibility of the applicant's plea of nullity before the Zurich
Court of Cassation.
However, a decision as to whether or not a plea of nullity is
admissible does not involve "the determination of ... any criminal
charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. 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.
b) As regards the applicant's complaint of imposition of court costs
in respect of his plea of nullity to the Federal Court, the Commission
notes that this complaint was raised in the applicant's observations
of 4 July 1994, whereas the Federal Court's judgment was given on
26 March 1992.
The applicant has not therefore lodged this complaint within the
six months time-limit provided for in Article 26 (Art. 26) of the
Convention.
It follows that this complaint is inadmissible according to
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant also complains under Article 6 (Art. 6) of the
Convention that the Federal Court in its decision of 26 March 1992
incorrectly stated that the case concerned the "assessment of
evidence". The Commission notes that in this decision the Federal
Court declared the applicant's public law appeal and plea of nullity
inadmissible as he had not paid the court costs. As Article 6
(Art. 6) of the Convention does not apply to proceedings relating to
the admissibility of appeals, this part of the application is also
incompatible ratione materiae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
Order
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Acting President of the
Second Chamber Second Chamber
(K. ROGGE) (H. DANELIUS)