S. v. SWITZERLAND

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention of the various proceedings and the ensuing decisions.

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 applications 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 (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 the applicant also complains under Article 6

(Art. 6) of the Convention of the alleged lack of impartiality of the

District Court judge and that he was not given sufficient time for

preparing his public law appeal statement.

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

as it is relevant:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

As regards the applicant's complaint about the alleged lack

of impartiality of the District Court judge, the Commission recalls

that the existence of impartiality must be determined according to a

subjective test, that is on the basis of the personal conviction of a

particular judge in a given case, and also according to an objective

test, that is by ascertaining whether the judge offered guarantees

sufficient to exclude any legitimate doubts in this respect (see,

amongst other authorities, Eur. Court H.R., De Cubber judgment of 26

October 1984, Series A No. 86, pp. 13-14, para. 24).

As to the subjective test, the personal impartiality of a

judge must be presumed until there is a proof to the contrary. The

applicant has in no way shown that the judge concerned acted with

personal bias.

Under the objective test, it must be determined whether,

apart from the judge's personal conduct, there are ascertainable facts

which may raise doubts as to his impartiality. In this respect even

appearances may be of a certain importance. What is at stake is the

confidence which the courts in a democratic society must inspire in

the public and above all in the parties to the proceedings.

Accordingly, any judge in respect of whom there is a legitimate reason

to fear lack of impartiality must withdraw (cf. De Cubber judgment,

loc. cit., p. 14, para. 26).

This implies that in deciding whether in a given case there is

a legitimate reason to fear that a particular judge lacks

impartiality, the view of the complaining party is important but not

decisive. What is decisive is whether this fear can be said to be

objectively justified.

In the present case, the fear of lack of impartiality was

based on the fact that the District Court judge who decided on the

action introduced by the Cooperative against the applicant had

previously decided in the summary proceedings on the Cooperative's

request to grant execution.

This kind of situation may occasion misgivings on the part of

a party as to the impartiality of a judge, misgivings which are

understandable but which nevertheless cannot necessarily be treated as

objectively justified. Whether they should be so treated depends on

the circumstances of each particular case.

In the present case, the Commission observes that the District

Court judge was first called upon to examine whether the Cooperative

could provide sufficient substantiation in order to grant provisional

execution (see above, Relevant domestic law). Moreover, the

decision had to be given within five days after the request had been

filed. The judge thus only undertook a summary and formal assessment

of the available material. This examination was different from the

subsequent full examination of the well-foundedness of the

Cooperative's action in the regular court proceedings by the District

Court judge.

The provisional nature of the summary proceedings is in the

Commission's view further emphasised by the fact that, if provisional

execution is granted, the debtor has the possibility within ten days

to institute ordinary court proceedings in which he may request the

claim to be disallowed. If these proceedings fail and his fortune is

impounded, he again has the possibility within one year to institute

court proceedings in which he may reclaim the payment made.

In the Commission's opinion the mere fact that a judge has

first summarily and provisionally determined a request for execution

and later decides on a subsequent action raising the same issue

cannot in itself justify fears as to his impartiality.

The Commission is therefore of the view that in the

circumstances of the case the role of the judge was not capable of

giving rise to doubt as to his impartiality and that the applicant's

fear cannot be considered to be objectively justified.

With regard to the contention that the applicant had

insufficient time to prepare his public law appeal statement, as he

was suffering from the results of a car accident, the Commission

considers that Article 6 para. 3 (b) (Art. 6-3-b) of the Convention

guarantees to a person charged with a criminal offence the right to

have adequate time and facilities to prepare his defence. However,

such a right may also be inherent in Article 6 para. 1 (Art. 6-1) of

the Convention which guarantees a fair and public hearing in the

determination of a person's civil rights and obligations.

Nevertheless, in the present case, the Commission considers that the

applicant has not sufficiently substantiated the degree and possible

effects of his injuries.

As a result, the application must be declared inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.