N. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Applications Nos. 1) 15252/89 2) 15628/89
3) 17384/90
by K.N.
against Switzerland
The European Commission of Human Rights sitting in private on
11 May 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 applications introduced on 1) 23 April 1987,
2) 25 July 1989 and 3) 10 September 1990 by K.N. against Switzerland
and registered on 1) 20 July 1989, 2) 4 October 1989
and 3) 31 October 1990 under file Nos. 1) 15252/89, 2) 15628/89 and
3) 17384/90;
Having regard to:
- the Commission's decision of 8 April 1991 to join Applications
Nos. 15252/89, 15628/89, 15629/89, 15630/89, 15857/89 and 17384/90;
to communicate certain of the applicant's complaints in so far as they
concern Applications Nos. 15252/89, 15628/89 and 17384/90; and to
declare inadmissible the remainder of the applications;
- the observations submitted by the respondent Government on
19 July 1991 and the observations in reply submitted by the applicant
on 18 September 1991;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The facts of the case as submitted by the parties, may be
summarised as follows.
The applicant, a Swiss citizen born in 1935, is a pig-breeder
residing at Oberbüren in Switzerland.
I.
In 1965/1966 the applicant's pigs became ill and had to be
killed. The applicant was of the opinion that the illness had been
caused by manure which had entered the drinking water supply. In 1966
he unsuccessfully introduced an action against the Oberbüren municipal
and water corporation, claiming damages of 150,000 SFr. Following
further appeals, the St. Gallen Cantonal Court (Kantonsgericht) in 1975
upheld the action to the amount of 85,844 SFr.
On 24 June 1981 the applicant introduced a responsibility action
(Verantwortlichkeitsklage) against the Canton of St. Gallen, claiming
damages of 653,273.60 SFr on account of the long duration of the
previous proceedings. The action was dismissed on 10 December 1982 by
the Federal Court (Bundesgericht) on account of forfeiture
(Verwirkung).
II.
On 12 December 1983 the applicant introduced with the Federal
Court a responsibility action, numbering three pages, against the
Canton of St. Gallen. Complaining of a denial of justice by the St.
Gallen authorities, he claimed damages of 1,505,156.85 SFr.
According to Section 42 of the Federal Judiciary Act
(Organisationsgesetz) the Federal Court decides as the only instance
in civil litigation between Cantons and private persons.
On 6 January 1984 the Federal Court invited the applicant to
consult a lawyer and introduce an improved action. Mr. T., a lawyer,
then represented the applicant. On 6 February and on 7 May 1984 T.
asked for a prolongation of the time-limit to file the improved action.
On 7 May 1984 T. filed a request for legal aid (Armenrecht).
In a letter of 25 May 1984 the Court saw no responsibility of the
Canton of St. Gallen for the damages claimed. The applicant then
withdrew T.'s power of attorney.
On 3 September 1984 the applicant filed an improved action,
numbering 110 pages, in which he claimed 1,320,783.20 SFr.
The Court held a preparatory hearing on 20 February 1985. On
26 February 1985 the Court granted the applicant legal aid and, upon
his request, appointed H. as his lawyer.
On 23 August 1985, following a friendly settlement with his
previous lawyers, the applicant withdrew various claims amounting to
653,273.60 SFr from his above action.
Thereupon, the applicant unsuccessfully attempted to negotiate
a friendly settlement with the Canton of St. Gallen.
On 6 August 1986 B., a substitute for the lawyer H., introduced
with the Federal Court an ameliorated action. Therein he claimed under
Item No. (1) 256,501.40 SFr damages for the consequences of the
polluted drinking water on the applicant's pig-breeding. Under Items
Nos. (2) - (4) he further requested approximately 400,000 SFr.
On 11 August 1986 the Federal Court invited the Canton of
St. Gallen to reply to the action before 30 September 1986. The
time-limit was prolonged. On 30 September 1986 the Federal Court
decided to limit the proceedings to Item No. (1) of the applicant's
action of 6 August 1986. The Canton of St. Gallen filed its reply on
15 December 1986.
On 23 October 1987 H. informed the Federal Court that the
applicant had withdrawn his power of attorney. By letter of
2 November 1987 the Federal Court replied that in view of the
conditions of legal aid granted on 26 February 1985 this was not
possible. On 26 November 1987 the Court rejected the applicant's
request for a new lawyer.
On 15 December 1987, at a preparatory hearing, the parties could
not agree on a friendly settlement. The Court then requested the
parties to submit further written statements.
On 1 February 1988 the applicant requested suspension of the
proceedings as the parliament of the Canton of St. Gallen was dealing
with the case. This was refused by the Court on 19 February 1988.
The applicant filed his statement on 18 April 1988. He then
wrote to the Court on 27 May 1988, insisting on the withdrawal of H.'s
power of attorney. On 31 May 1988 H. filed a separate statement. On
11 July 1988 the applicant complained to the Court that he had received
no reply to his letter of 27 May 1988, and that the proceedings lasted
too long.
The Canton of St. Gallen filed its reply on 22 August 1988. On
2 September 1988 the written proceedings were closed.
Following a hearing on 25 September 1988 the Federal Court
dismissed the applicant's action on 25 October 1988. The judgment
numbering ten pages was served on the applicant on 18 November 1988.
Therein the Court found that in view of the legal aid granted to the
applicant on 26 February 1985 it could only consider the submissions
presented by his lawyer to whom no reproach could be made about
careless representation. The Court further considered that the action
had to be dismissed as the Canton of St. Gallen lacked standing.
A further decision of the Federal Court of 25 October 1988
concerned legal aid. The Court noted therein that it had dismissed the
applicant's claims as to Item No. (1) of his ameliorated action of
6 August 1986. The remaining items lacked prospects of success inter
alia as certain issues had already definitely been decided on
10 December 1982. As a result, the legal aid granted to the applicant
was withdrawn. The Court requested the applicant to pay advance costs
of 6,000 SFr. If this sum was not paid, the Court threatened to
declare inadmissible the remaining items of the applicant's action.
By letter of 16 December 1988 the applicant wrote to the Federal
Court that he did not have the means to pay the sum of 6,000 SFr.
On 6 January 1989 the Federal Court declared inadmissible the
remaining items of the applicant's action on the ground that he had
failed to pay the advance costs.
I.
On 15 December 1982 the police stopped the applicant in his car.
As he was suspected of driving under the influence of alcohol, he
underwent a breath analysis the result of which was positive. A blood
test was ordered in respect of which the St. Gallen Forensic Medicine
Institute (gerichtsmedizinisches Institut) concluded that the applicant
had had a blood alcohol concentration of between 1.4 and 1.5 °/oo.
On 4 March 1983 criminal proceedings were instituted against the
applicant. On 8 October 1985 the investigating judge questioned him.
On 27 October 1985 the Wil District Office (Bezirksamt) informed
the applicant of its intention to issue a penal order (Strafbefehl)
against him. The applicant was given a time-limit of eight days to
consult the case-file and submit any further evidence.
On 5 November 1985 the applicant's lawyer asked for leave to
consult the case-file. On 6 November 1985 the investigating judge
replied that the time-limit had expired on 4 November 1985; he enclosed
a penal order, dated 6 November 1985, in which the Wil District Office
convicted the applicant of driving under the influence of alcohol and
obstruction of official acts, and sentenced him to a fine of 200 SFr
and two weeks' suspended imprisonment.
The applicant filed an appeal claiming in particular that he had
received the letter of 27 October 1985 only on 29 October, for which
reason the time-limit had expired only on 6 November 1985. The appeal
was dismissed by the Indictment Chamber (Anklagekammer) of the Canton
of St. Gallen on 3 February 1986. The applicant's further public law
appeal was rejected by the Federal Court on 14 January 1987.
II.
Meanwhile, on 21 November 1985, the applicant filed an objection
against the penal order. The case was referred to the Wil Judicial
Commission (Gerichtskommission) which on 1 September 1987 confirmed the
previous conviction. The applicant's appeal was dismissed on
8 March 1988 by the St. Gallen Cantonal Court (Kantonsgericht). On
16 December 1988 the Court of Cassation of the Canton of St. Gallen
dismissed his plea of nullity. His subsequent plea of nullity to the
Federal Court was dismissed on 28 February 1989.
Against the decision of the Court of Cassation of
16 December 1988 the applicant also filed a public law appeal,
complaining inter alia that he did not have a fair trial. He also
pointed out "by the way" ("am Rande") that "it appears more than
strange if an investigating authority requires nearly three years to
... undertake a criminal investigation" ("dass es mehr als merkwürdig
anmutet, wenn eine Untersuchungsbehörde beinahe drei Jahre braucht, bis
sie ... eine untersuchungsrichterliche Handlung vornimmt").
The Federal Court dismissed the applicant's public law appeal on
3 May 1989. With regard to the period of three years required for the
investigation, the Court found that this comparatively lengthy delay
had not caused the applicant any prejudice.
Following the decision of the Federal Court of 25 October 1988
(see above A), the applicant introduced with the Federal Finance
Department (Eidgenössisches Finanzdepartement) a claim for damages,
resulting from the Court's decision (see above A). The Department
dismissed the claim on 23 March 1989.
The applicant then introduced with the Federal Court a claim for
damages, amounting to 671,554.90 SFr against the Swiss Confederation
(Schweizerische Eidgenossenschaft). On 14 December 1989 the Federal
Court dismissed the applicant's challenge of Federal Court judges and
his request for legal aid, as the decisions of the Federal Court of
which the applicant complained had become definite and could not be
made the object of a claim for damages. The Court therefore invited him
to pay advance court costs amounting to 6,500 SFr.
The applicant then requested the reopening of the previous
proceedings. On 6 March 1990 the Federal Court rejected this request
and again invited the applicant to pay advance court costs amounting
to 6,500 SFr.
In a further decision of 4 May 1990 the Federal Court noted that
the applicant had failed to pay the advance court costs and declared
his action inadmissible.
COMPLAINTS
In Application No. 15252/89 the applicant complains under
Article 6 of the Convention of the length of the proceedings instituted
against the Canton of St. Gallen before the Federal Court.
In Application No. 15252/89 the applicant further complains under
Article 6 para. 1 of the Convention of the length of the criminal
proceedings instituted against him on account of driving under the
influence of alcohol. In Application No. 15628/89 the applicant again
refers to his complaints made in Application No. 15252/89.
In Application No. 17384/90 the applicant complains under
Article 6 of the Convention of the Federal Court's decision of
4 May 1990 and the court costs of 6,500 SFr which he should have paid
in advance.
PROCEEDINGS BEFORE THE COMMISSION
The applicant filed six applications which were introduced as
follows: 1) Application No. 15252/89 on 23 April 1987; 2) No. 15628/89
on 25 July 1989; 3) No. 15629/89 on 18 May 1989; 4) No. 15630/89 on
18 May 1989; 5) No. 15857/89 on 3 October 1989; and 6) No. 17384/90 on
10 September 1990.
These applications were registered as follows: 1) 20 July 1989;
2) 4 October 1989; 3) 16 October 1989; 4) 16 October 1989;
5) 4 December 1989; and 6) 31 October 1990.
In his statement of 23 April 1987, leading to Application
No. 15252/89, the applicant complained that the criminal proceedings
instituted against him were not being conducted within a reasonable
time as required by Article 6 para. 1 of the Convention. In the
application form leading to Application No. 15628/89, which concerned
the criminal proceedings instituted against the applicant, he again
referred to the complaint in the statement of 23 April 1987 concerning
the length of the proceedings.
On 8 April 1991 the Commission decided to join the applications;
to communicate them in so far as they concerned the complaints about
the length of the proceedings instituted against the Canton of St.
Gallen, the length of the criminal proceedings instituted against the
applicant, and the court costs of 6,500 SFr which the applicant was
asked to pay in the proceedings against the Swiss Confederation; and
to declare inadmissible the remainder of the applications.
The Government's observations were received by letter dated
19 July 1991, the applicant's observations were dated
18 September 1991.
Considerations
THE LAW
1. The applicant complains about the length of the proceedings
instituted against the Canton of St. Gallen, and of the criminal
proceedings in which he was involved. He also complains that he was
ordered to pay 6,500 SFr as advance court costs in the proceedings
instituted against the Swiss Confederation.
2. The Commission recalls that the applicant originally introduced
Applications Nos. 15252/89; 15628/89; 15629/89; 15630/89; 15857/89; and
17384/90. On 8 April 1991 the Commission communicated the complaints
mentioned above to the respondent Government and declared inadmissible
the remainder of the applications.
The communicated complaints were raised in Applications
Nos. 15252/89, 15628/89 and 17384/90. It follows that only these
applications are still before the Commission.
3. The Government contest the admissibility of these applications.
a) The Government's first objection relates to the complaint about
the length of the criminal proceedings instituted against the applicant
on account of driving under the influence of alcohol.
The Government contend that the applicant did not raise this
complaint before the Commission. Thus, Application No. 15252/89 only
concerned the criminal proceedings instituted against the applicant in
so far as he complained of the decision of the Federal Court of
14 January 1987. In his subsequent Application No. 15628/89, which was
mainly directed against the decisions of the Federal Court concerning
his driving under the influence of alcohol, the applicant again did not
complain of the length of the proceedings within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention.
The Commission observes that in his first letter to the
Commission of 23 April 1987, leading to Application No. 15252/89, the
applicant complained that the criminal proceedings instituted against
him were not being conducted within a reasonable time as required by
Article 6 para. 1 (Art. 6-1) of the Convention. Subsequently, he
reiterated this complaint. Thus, in Application No. 15628/89, which
concerned the criminal proceedings, he referred to the complaint made
in the statement of 23 April 1987 concerning the length of the
The Commission therefore considers that the applicant raised the
complaint at issue.
b) The Government's next objection also relates to the complaint
about the criminal proceedings instituted against the applicant.
The Government submit that, even if the applicant did raise the
complaint at issue, he in any event did not exhaust domestic remedies
according to Article 26 (Art. 26) of the Convention. He did not raise
a complaint based on Article 4 of the Federal Constitution or Article 6
para. 1 (Art. 6-1) of the Convention before the domestic courts. Thus,
he complained in his public law appeal before the Federal Court about
the difficulties in assessing the facts which had occurred three years
before, but he never referred to the length of the proceedings. For
this reason, the Court never dealt with his complaint.
The Commission recalls that in previous cases against Switzerland
concerning the length of proceedings it has found that, in order to
comply with the requirements under Article 26 (Art. 26) of the
Convention, the applicant had to file with the authority concerned a
complaint based on Article 4 of the Federal Constitution or Article 6
para. 1 (Art. 6-1) of the Convention. However, these cases concerned
pending proceedings. The Commission also found that the situation was
different if the applicant complained about the length of proceedings
which had been terminated and where Swiss law envisaged no further
remedy (see No. 13523/88, Dec. 4.10.90, to be published in D.R., with
further references).
In the present case the Commission need not examine whether the
applicant raised this complaint in his public law appeal before the
Federal Court. The Commission has just found that in Application
No. 15628/89 the applicant, by referring to a previous statement,
complained before the Commission about the length of the proceedings
at issue. However, at that stage the domestic proceedings were already
terminated, and no further remedy was at the applicant's disposal under
Swiss law.
The applicant's complaint cannot therefore be rejected under
Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26) of
the Convention for non-exhaustion of domestic remedies.
c) The Government's third objection relates to the applicant's
complaint about the order to pay advance court costs in the proceedings
instituted against the Swiss Confederation.
The Government submit that the Commission is not called upon to
examine this complaint. Thus, while the applicant complains in
Application No. 17384/90 of the decision of the Federal Court of
4 May 1990, in fact the order of the Federal Court concerning the
advance court costs of 6,500 SFr were dated 14 December 1989 and
6 March 1990. The Government consider that the applicant did not in
his applications contest the last two decisions.
The Commission observes that the applicant is contesting the
obligation to advance court costs which the Federal Court imposed on
the applicant if he wished to pursue his action. In its decision of
4 May 1990 the Federal Court took note of the fact that the applicant
had not paid the court costs in advance and for this reason it declared
his action inadmissible. Thus, the decision of the Federal Court of
4 May 1990 was the final decision concerning this complaint.
The Commission is therefore called upon to examine this
complaint.
proceedings.
4. The parties submit the following observations on the substance
of the complaints.
a) In respect of the proceedings which he instituted against the
Canton of St. Gallen the applicant submits that even if the case-file
was voluminous the case could not be considered complex. He points out
that the Federal Court often did not speedily decide on his requests,
for instance to be afforded legal aid, or waited two years until it
transmitted his statement of 3 September 1984 to the opposite party.
The Government submit that these proceedings were conducted
within a reasonable time as required by Article 6 para. 1
(Art. 6-1) of the Convention. The applicant was largely responsible
for any delay by requesting five times in 1984 and once in 1988 a
prolongation of time-limits for filing a statement. The frequent
change of lawyers also slowed down proceedings. The Federal Court
afforded the applicant's case particular care, for instance by drawing
his attention to the possibility of improving his action. It attempted
to accelerate the proceedings while having due regard to the
applicant's rights.
b) The parties have made no submissions on the length of the
criminal proceedings instituted against the applicant.
c) In respect of the complaint concerning the obligation to advance
court costs, the applicant submits that his case against the Swiss
Confederation was not deprived of prospects of success.
The Government submit that this complaint is manifestly ill-
founded. They refer to Section 153 para. 1 b of the Federal Judiciary
Act (Organisationsgesetz) according to which the amount of advance
court costs may vary between 200 and 20,000 SFr, depending on the
special circumstances of the case, e.g. its particular volume or
complexity. In this light the amount fixed in the present case was not
disproportionate.
The Government also submit that according to Section 152 para. 1
of the Federal Judiciary Act the Federal Court may exempt an indigent
party, whose case does not appear without prospects of success, upon
request from paying the court costs and from paying a security for the
costs of the opposing party. The Federal Court had already granted
legal aid to the applicant, and appointed a lawyer, in the proceedings
against the Canton of St. Gallen leading to the decision of 25 October
1988. The applicant was indigent, but his action was without any
prospects of success. Thus, the applicant was introducing the
responsibility action with regard to decisions of the Federal Court
which had already become final.
5. The Commission, having regard to the parties' submissions under
Article 6 para. 1 (Art. 6-1) of the Convention, considers that these
complaints raise serious issues of fact and law which require an
examination of the merits. The applications cannot now be declared
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 REMAINDER OF APPLICATIONS NOS. 15252/89, 15628/89
AND 17384/90 ADMISSIBLE, without prejudging the merits of the
case:
- unanimously, as regards the applicant's complaints under
Article 6 para. 1 (Art. 6-1) of the Convention about the length
of the proceedings instituted against the Canton of St. Gallen,
and the length of the criminal proceedings instituted against the
applicant;
- by a majority, as regards the applicant's complaints under
Article 6 para. 1 (Art. 6-1) of the Convention about the advance
court costs.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)