H.W.K. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 26453/95
by H. W. K.
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. S. TRECHSEL
M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, 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 17 January 1995
by H. W. K. against Switzerland and registered on 6 February 1995 under
file No. 26453/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The applicant, a Swiss citizen born in 1931, is a practising
lawyer residing in Zumikon in Switzerland. Before the Commission he
is represented by Mr T. Poledna, a lawyer practising in Zürich.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a) Federal Court's judgment of 12 January 1994
The application relates to a statement about the applicant made
in a judgment of the Federal Court of 12 January 1994 concerning other
parties. The background to that judgment was an action which the
plaintiff P.J. brought against Ringier AG, a media company, claiming
a breach of personality rights (Persönlichkeitsrechte). The action
related to suggestions made in a Sunday newspaper that P.J. had been
involved in a sale of certain aeroplanes to Iran. In 1992 the Cantonal
Court (Kantonsgericht) of the Canton of Zug partly upheld the action,
ordering the newspaper to publish a judicial determination of the
facts.
The Court of Appeal of the Canton of Zug (Obergericht) dismissed
P.J.'s appeal (Berufung), his further appeal being dismissed on
12 January 1994 by the Federal Court (Bundesgericht). The Court's
bench consisted of the President S. and the judges F., B., W., and S.
In its judgment, the Court stated in consideration 2(a):
<Translation>
"2. ... a) What has happened to the plaintiff according to the
factual determination of the previous instance must, objectively
speaking, be considered as a serious breach. In the mass Sunday
newspaper Sonntags-Blick he was twice mentioned as a salesman of
19 F5-jets to Iran. This put a completely false light on his
role in the sale of these aeroplanes. The contested press
reports concern dealings with arms, i.e. a subject which has
meanwhile become very sensitive in view of the public discussion.
In addition, the plaintiff was mentioned in connection with (the
applicant) who at the critical time was repeatedly being attacked
by the media in view of his business activities (Zudem wurde der
Kläger im Zusammenhang mit <dem Beschwerdeführer> erwähnt, der
im fraglichen Zeitraum aufgrund seiner Geschäftstätigkeit
wiederholt ins Schussfeld der Medien geraten war)."
The Court concluded that "what had happened to the plaintiff
according to the factual determination of the previous instance had,
objectively speaking, to be considered as a serious breach".
b) Federal Court's decision of 17 May 1994
In separate proceedings the applicant brought an action against
the Tages-Anzeiger newspaper, claiming a breach of his personality
rights in view of certain statements in that newspaper. Thus, various
articles had made references to the applicant in connection with drug
monies and the Shakarchi Trading company which was then being discussed
in the media.
The applicant's action was partly upheld by the Zürich District
Court on 20 August 1991 and, upon appeal, by the Court of Appeal
(Obergericht) of the Canton of Zürich.
The applicant's further appeal was partly dismissed by the
Federal Court on 17 May 1994. The Court did not conduct an oral
hearing. The bench consisted of the President S., and the judges B.,
W., W. and R.
In its judgment, running to 33 pages, the Federal Court partly
upheld the applicant's appeal. It considered that certain statements
of the newspaper had breached the applicant's personality rights, and
it ordered the newspaper to publish a particular text prepared by the
Court. The Court also confirmed the judgment of the District Court
according to which the newspaper had to pay 10,000 Swiss Francs to a
caritative organisation.
c) Federal Court's judgment of 11 November 1994
The applicant noted that three judges who had decided in the
Federal Court's judgment of 17 May 1994, namely the President S., B.
and W., had previously participated in the Federal Court's judgment of
12 January 1994. In view of the formulation employed in that judgment
about the applicant, he filed a request for reopening the proceedings
(Revision), claiming that the judges S., B. and W. had not been
impartial.
The applicant's request was dismissed by the Federal Court on
11 November 1994. In its judgment the Court stated:
<Translation>
"It cannot be relevant what the applicant has interpreted into
the consideration 2(a). The contested consideration contains no
indication that the applicant knew of the sale of aeroplanes at
issue, of which P.J. was accused, or that the applicant had
anything to do with it, or had business relations with P.J. Nor
does it transpire therefrom that everyone who has been mentioned
together with the applicant was breached in his personality.
Finally, the consideration does not state anything about a
connection with the accusation of the Tages-Anzeiger newspaper
concerning the Shakarchi Trading AG or about the applicant's
culpability concerning the accusations of the media directed
against him. The contested consideration has a link with the
applicant only to the extent that the Federal Court, when
concluding that there had been a serious breach of personality,
relied in addition on the facts that the two newspaper articles
had mentioned P.J. in connection with the applicant who himself
had at the critical time repeatedly been attacked by the media
in view of his business activities. Thus, the Federal Court only
drew a legal conclusion from facts which, on the one hand, had
definitely been decided by the previous instance ... and, on the
other, were widely known. It cannot be said that this
constitutes a statement of bias against the person of the
applicant. The complaint about partiality is therefore
unfounded."
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
of the three Federal Court judges who had participated in the judgments
of the Federal Court of both 17 May and 12 January 1994. In
particular, the formulation employed in consideration 2(a) of the
judgment of 12 January disclosed their lack of impartiality.
The applicant points out that the judgment of 12 January 1994 not
only stated that the applicant "had been attacked by the media", but
also that this had occurred "in view of his business activities".
However, there had never been a sale of aeroplanes of which the
applicant had known, let alone in which he had been involved. As a
result, the judges considered that the applicant had on account of his
own culpability and instigation (aus eigenem Verschulden und Antrieb)
been attacked by the media.
The applicant complains particularly that the Federal Court's
judgment assumed a breach of personality rights of P.J. who had been
mentioned together with the applicant in the same newspaper. Thus, the
judges had demonstrated that they were negatively disposed
(eingestellt) towards the applicant and had declared him a "persona non
grata".
The applicant submits that, despite his complaints, the Federal
Court's judgment of 12 January 1994 was published in the official
series of the Federal Court. While the term "personality"
(Persönlichkeit) was used instead of the applicant's name, it was
nevertheless possible to identify who this personality was in view of
the widespread coverage which the particular sale of the aeroplanes had
received in the Swiss press.
Considerations
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the three Federal Court judges who had participated in
the judgments of the Federal Court of both 12 January and 17 May 1994.
In particular, the formulation employed in consideration 2(a) of the
first judgment disclosed their lack of impartiality.
Article 6 para. 1 (Art. 6-1) of the Convention states, insofar
as 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 ..."
According to the case law of the Convention organs, the existence
of impartiality required by Article 6 para. 1 (Art. 6-1) 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
according to an objective test, that is ascertaining whether the judge
offered guarantees sufficient to exclude any legitimate doubt in this
respect (see Eur. Court HR, Fey v. Austria judgment of 24 February
1993, Series A no. 255, para. 28: De Cubber v. Belgium 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 not claimed that the judges 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 (see the De Cubber judgment, loc. cit.,
p. 214, 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 Federal Court judges who in the judgment of 17 May
1994 partly dismissed the applicant's appeal, had in the previous
judgment of 12 January 1994 made a reference to the applicant.
The Commission observes at the outset that the applicant was not
a party in the proceedings before the Federal Court leading to its
judgment of 12 January 1994. Indeed, as the Federal Court later
pointed out in its judgment of 11 November 1994, the contested
formulations in consideration 2(a) did not even concern a matter which
was the object of the subsequent proceedings before the Federal Court,
leading to its judgment of 17 May 1994.
The Commission furthermore notes that in its judgment of
12 January 1994 the Federal Court did not base its conclusion that the
personality rights of P.J. had been breached exclusively on the
formulations relating to the applicant. Rather, the contested sentence
is mentioned as an addition to other considerations.
Moreover, the Federal Court emphasised in its judgments of both
12 January 1994 and of 11 November 1994 that the contested formulations
represented facts which had been established by the previous instance
and in respect of which it, the Federal Court, was bound.
The Commission is satisfied that the formulations concerning the
applicant indeed referred to assertions which had been related in the
media and which were therefore widely known.
Finally, the Commission notes that on 17 May 1994 the Federal
Court carefully assessed the applicant's appeal in a judgment running
to 33 pages. Indeed, the Court partly upheld the applicant's appeal,
considering that certain statements of the newspaper had breached his
personality rights, and ordering the newspaper to publish a particular
text prepared by the Court.
The Commission is, therefore, of the opinion that in the
circumstances of the case the formulations employed in the Federal
Court's judgment of 12 January 1994 were not capable of giving rise to
doubt as to the impartiality of the Federal Court judges concerned, and
that the applicant's fear cannot be considered to be objectively
justified.
As a result, the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Order
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber