CASE OF NIDERÖST-HUBER v. SWITZERLAND

AS TO THE LAW — I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 6-1)

19. Mr Nideröst-Huber alleged a violation of Article 6 para. 1 of the Convention (art. 6-1), which provides:

"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

He submitted that, in spite of an express request, the Federal Court had not sent him the observations of the Schwyz Cantonal Court before it gave judgment, and had thus made it completely impossible for him to inspect them and, if need be, to comment on them in due course. It had been all the more needful for these observations to be sent to him, however, because they expanded on the impugned judgment and because the Federal Court had evidently reproduced certain passages from them in its judgment. In short, the principle of equality of arms and the right to a fair trial had been infringed.

20. The Government maintained that the observations in question contained nothing which had not already been said explicitly and in greater detail in the Cantonal Court’s judgment of 19 June 1990. If they had included important new arguments which the Federal Court wished to take into consideration, it would have had to organise a further exchange of pleadings or order a hearing for oral argument, but it had not done so.

The sole purpose of the possibility provided for in section 56 of the Federal Judicature Act (see paragraph 14 above) was to save time in Federal Court proceedings by enabling the cantonal courts to defend their judgments against criticisms that had been made of them. Under no circumstances could the cantonal courts take advantage of this as an opportunity to expand on their decisions.

In the present case the fact that the observations were not sent to Mr Nideröst-Huber had not affected the outcome in any way, since the respondent company had not received a copy either. Even if copies had been sent, this could only have been for information purposes, since the content of the observations did not call for any response from the parties, who had already had every opportunity to present their cases - the applicant when he lodged the appeal and the company when it submitted a defence.

In short, when considered in the light of the proceedings as a whole, the fact that the applicant was not sent a copy of the observations had not detrimentally affected his position in any way.

21. The Commission found no infringement of the principle of equality of arms. On the other hand, it took the view that the failure to send the applicant a copy of the observations and the fact that it had been impossible for him to comment on them in due course had infringed the right to a fair trial for the purposes of Article 6 para. 1 (art. 6-1).

22. The Court considers, firstly, that in itself the filing of observations like those in the present case is not incompatible with the requirements of a fair trial, even though it is a practice seldom encountered in the member States of the Council of Europe. In the present case only the fact that the observations were not communicated to the applicant raised any problem.

23. The principle of equality of arms - one of the elements of the broader concept of fair trial - requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, pp. 1567-68, para. 38).

In the present case the Cantonal Court’s observations were not communicated to either of the parties to the dispute before the Federal Court, namely the applicant and the respondent company. As for the Cantonal Court, which is an independent tribunal, it cannot be regarded as the opponent of either of the parties. Accordingly, no infringement of equality of arms has been established.

24. However, the concept of fair trial also implies in principle the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see the Lobo Machado v. Portugal and Vermeulen v. Belgium judgments of 20 February 1996, Reports 1996-I, p. 206, para. 31, and p. 234, para. 33, respectively).

25. The Government argued that this rule applied to cases where, as in the above-mentioned Lobo Machado and Vermeulen cases and the case of Bulut v. Austria (judgment of 22 February 1996, Reports 1996-II), an authority had taken the initiative of submitting arguments or observations intended to advise or influence a court. But in the present case the Cantonal Court had merely replied to the criticisms of its judgment that had been made in the appeal. In doing so it had not made any points which were not already part of the impugned decision.

26. The Court notes that even though the observations in issue ran to only one page they nevertheless constituted a reasoned opinion on the merits of the appeal, and explicitly called for it to be dismissed. As the Delegate of the Commission observed, they were therefore manifestly aimed at influencing the Federal Court’s decision.

27. In that connection, the effect they actually had on the decision is of little consequence. In any event, as the observations came from an independent tribunal which, furthermore, had a thorough knowledge of the file, having previously considered the merits of the case, it is unlikely that the Federal Court would have paid them no heed. It was therefore all the more needful to give the applicant an opportunity to comment on them if he wished to do so.

28. It is also of little consequence that the case concerned civil litigation, where the national authorities, as the Government rightly pointed out, enjoy greater latitude than in the criminal sphere (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, para. 32, and the Levages Prestations Services v. France judgment of 23 October 1996, Reports 1996-V, p. 1544, para. 46). According to the above-mentioned Lobo Machado and Vermeulen judgments, on this point the requirements derived from the right to adversarial proceedings are the same in both civil and criminal cases (p. 206, para. 31, and p. 234, para. 33, respectively).

29. Nor is the position altered when, in the opinion of the courts concerned, the observations do not present any fact or argument which has not already appeared in the impugned decision. Only the parties to a dispute may properly decide whether this is the case; it is for them to say whether or not a document calls for their comments. What is particularly at stake here is litigants’ confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file.

30. No doubt the filing of observations like those in issue in the present case is calculated to save time and expedite the proceedings. As its case-law bears out, the Court attaches great importance to that objective, which does not, however, justify disregarding such a fundamental principle as the right to adversarial proceedings. In fact, Article 6 para. 1 (art. 6-1) is intended above all to secure the interests of the parties and those of the proper administration of justice (see, mutatis mutandis, the Acquaviva v. France judgment of 21 November 1995, Series A no. 333-A, p. 17, para. 66).

31. In the present case respect for the right to a fair trial, guaranteed by Article 6 para. 1 of the Convention (art. 6-1), required that Mr Nideröst-Huber be informed that the Cantonal Court had sent observations and that he be given the opportunity to comment on them.

Moreover, according to the Government’s explanations at the hearing before the Court, that is indeed the normal practice of the Federal Court. It was not followed in this case.

32. There has accordingly been a breach of Article 6 para. 1 (art. 6-1).

II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

33. Under Article 50 of the Convention (art. 50),

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

34. In respect of pecuniary damage Mr Nideröst-Huber claimed 8,500 Swiss francs (CHF) in compensation for the damages (Entschädigung) of CHF 5,000 which the Federal Court had ordered him to pay the respondent plus CHF 3,500 in interest. He further claimed CHF 3,000 for non-pecuniary damage.

35. The Government asked the Court to refuse these claims, arguing that it was not for the Court to retry the case in the place of the Swiss authorities.

36. The Delegate of the Commission referred to the Court’s decisions on this issue in the above-mentioned Lobo Machado and Vermeulen cases.

37. The Court notes that there is no causal connection between the violation complained of and the pecuniary damage alleged; it cannot speculate as to what the outcome of the case would have been if the proceedings had been compatible with the requirements of Article 6 para. 1 (art. 6-1).

As for non-pecuniary damage, the Court considers that it is sufficiently compensated for by the finding of a breach of Article 6 para. 1 (art. 6-1).

B. Costs and expenses

38. Mr Nideröst-Huber also requested CHF 18,500 in respect of the costs and expenses he had incurred through the proceedings in the Federal Court (CHF 7,725) and later before the Convention institutions (CHF 10,775).

39. The Delegate of the Commission referred to the above-mentioned Vermeulen and Bulut judgments.

40. The Court observes that, according to its case-law, to be awarded costs and expenses the injured party must have incurred them in order to seek prevention or rectification of a violation of the Convention, to have the same established by the Commission and later by the Court and to obtain redress therefor. It must also be shown that the costs were actually and necessarily incurred and that they are reasonable as to quantum (see, among other authorities, the Philis v. Greece (no. 1) judgment of 27 August 1991, Series A no. 209, p. 25, para. 74).

It notes that the costs relating to the proceedings in the Federal Court could not have been incurred in order to prevent or rectify a violation affecting the proceedings in that very court. It accordingly accepts the Government’s submission that it should refuse this part of the claim.

With regard to the costs incurred for Mr Nideröst-Huber’s representation in Strasbourg, the Court awards the sum claimed, namely CHF 10,775.

C. Default interest

41. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum.