K. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 14090/88
by K.
against Switzerland
The European Commission of Human Rights sitting in private
on 14 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 December
1983 by K. against Switzerland and registered on 2 August 1988 under
file No. 14090/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The applicant, a Dutch citizen born in 1929, is an engineer
resident in Kirchdorf in Switzerland. His previous applications
Nos. 10807/84 and 14268/88, which the Commission declared inadmissible
on 4 December 1984 and 14 October 1988, respectively, do not relate to
the present case.
The facts submitted in this case may be summarised as follows.
Mr Sch., the applicant's neighbour, was regularly engaged on
his premises in sawing and other woodwork. In 1980 the applicant
complained to the municipal council (Gemeinderat) of Obersiggenthal
about noise nuisance. The latter then ordered Sch. to use noisy
machines only during working hours and not before 8 a.m. on Saturdays.
The applicant appealed against this order to the Aargau
Building Department (Baudepartement) and eventually to the Aargau
Administrative Court (Verwaltungsgericht). In the ensuing proceedings
Sch. was represented by the lawyer W.
On 25 March 1982 the Administrative Court partly upheld the
applicant's appeal to the extent that Sch. was permitted to use the
power saw and other machines only from Monday to Friday between
9 and 11 a.m. and between 3 and 5 p.m. The Court thereby stated that
it had the competence to examine freely issues of fact, law and
discretion.
The applicant filed a public law appeal (staatsrechtliche
Beschwerde) with the Federal Court (Bundesgericht) in which he
complained that the Administrative Court had not considered various
legal provisions or had misinterpreted the facts. In the ensuing
proceedings, the President of the competent chamber of the Aargau
Administrative Court wrote to the Federal Court on 3 September 1982
that the Administrative Court had examined the applicant's case
freely.
The Federal Court dismissed the public law appeal on 29 June
1983, stating inter alia that the Administrative Court's decision was
not arbitrary.
On 29 October 1983 the applicant requested the Federal Court
to reopen the proceedings. He submitted that after its decision of
29 June 1983 he had learned that W., the lawyer of Sch., was also a
substitute judge at the Aargau Administrative Court. The applicant
further complained that the Administrative Court had not freely
examined all issues. The Federal Court dismissed the request on
16 January 1984 stating that the applicant could have raised the
complaints in his previous public law appeal.
The applicant then requested the Aargau Administrative Court
to reopen the proceedings, inter alia on account of the position of
W. In these proceedings, the Court apparently extended in view of
holidays a time-limit granted to Sch. to reply to the request.
On 31 December 1984 the Administrative Court dismissed the
applicant's request. The Court found that a problem could arise if
ordinary judges also acted as lawyers in the proceedings before the
same court, since links might be established among the judges of the
bench and the impression could arise that certain cases were being
privileged. In the Court's opinion, the situation was different in
the case of part-time, rather than full-time, substitute judges, such
as W., who were only called to sit on certain cases if ordinary judges
were prevented from doing so, or if the substitute judge had
specialised knowledge. The latter were truly "substitute", and no
problem of personal links arose here. In fact, it would not be
possible to find sufficient legally trained persons as substitute
judges, if they were not permitted to act as lawyers. The Court also
pointed out that substitute judges acted in other cases as lawyers
also before the Aargau Court of Appeal (Obergericht) and the Federal
Court.
The applicant then unsuccessfully complained to the Aargau
Parliament (Grosser Rat) about the Administrative Court and the Court
of Appeal.
COMPLAINTS
The applicant complains that the Aargau Administrative Court
did not on 25 March 1982 freely decide on all issues raised by him.
He refers inter alia to the letter of the President of the Aargau
Administrative Court of 3 September 1982. He further complains that
W., the legal representative of Sch., was also a substitute judge at
the Administrative Court which was not therefore impartial. He relies
in this respect on Article 6 para. 1 of the Convention.
The applicant also generally complains of the various
decisions. He alleges an unequal extension of the time-limits in
favour of the opposing party and that he has been discriminated
against as a foreigner. He complains of the imposition of
certain court costs and generally of the manner in which the
authorities have dealt with his case. He invokes Articles 4, 6, 8,
10, 13, 14 and 17 of the Convention.
Considerations
THE LAW
1. The applicant complains of the decisions of the Aargau
Administrative Court and the Federal Court and of the proceedings
before the Administrative Court. He relies in particular on Article 6
para. 1 (Art. 6-1) which states in its first sentence:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
With regard to the decisions of which the applicant complains,
the Commission recalls that, in accordance with Article 19 (Art. 19)
of the Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its established
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
It is true that in this case the applicant also complains
under Article 6 para. 1 (Art. 6-1) that the Aargau Administrative
Court, in its decision of 25 March 1982, did not decide freely on all
the issues raised by the applicant before that Court.
However, the Commission notes that the Administrative Court
expressly stated in its decision of 25 March 1982 that it had the
competence to examine freely issues of fact, law and discretion in the
applicant's case. This was subsequently confirmed by the President of
the Court in his letter of 3 September 1982 to the Federal Court. The
Commission therefore finds no issue here under Article 6 para. 1 (Art.
6-1) of the Convention.
The applicant further complains that W., the legal
representative of Sch., was also a substitute judge at the Aargau
Administrative Court which was not therefore impartial within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission notes that the applicant did not file a new
public law appeal against the decision of the Aargau Administrative
Court of 31 December 1984. The Commission need nevertheless not
resolve whether the applicant has complied with the condition as to
the exhaustion of domestic remedies within the meaning of Article 26
(Art. 26) of the Convention, since this part of the application is in
any event manifestly ill-founded for the following reason.
In examining a complaint of partiality, the Commission must
consider the function exercised by the person in question and the
internal organisation of the court. In this respect, even appearances
may be important. What is at stake is the confidence which the courts
must inspire in the public. The test to be applied is whether as a
result of the particular fact the impartiality of the Court is capable
of appearing open to doubt (see Eur. Court H.R., Piersack judgment of
1 October 1982, Series A No. 53, p. 14 para. 30).
In the present case the Aargau Administrative Court drew a
distinction in its decision of 31 December 1984 between ordinary and
substitute judges and, with regard to the latter, between full-time
and part-time substitute judges. The Court found that its
impartiality could in fact be called in question if one of the
ordinary judges acted as a legal representative of one of the
parties. However, part-time substitute judges, such as W., were truly
substitute in that they were only called in for certain cases and no
personal links would arise with other judges on the bench.
In these circumstances the Commission considers that the
impartiality of the Aargau Administrative Court cannot be called in
doubt. It follows that the applicant's complaint does not disclose
any appearance of a violation of the rights set out in Article 6
para. 1 (Art. 6-1) of the Convention. The Commission concludes that
in this respect the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains, apparently under Article 14
(Art. 14) taken together with Article 6 (Art. 6) of the Convention, of
the allegedly unfair extension of time-limits in favour of the
opposing party; he submits that in the proceedings at issue he was
discriminated against as a foreigner. He further complains under
Articles 4, 8, 10, 13, 14 and 17 (Art. 4, 8, 10, 13, 14, 17) of the
manner in which the authorities dealt with his case.
The Commission has examined the remainder of the applicant's
complaints as they have been submitted by him. However, after
considering these complaints as a whole, the Commission finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
It follows that the remainder of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
Order
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)