H.H. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 26953/95
by H. H.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. S. TRECHSEL
J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Ms. M.-T. SCHOEPFER, 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 15 November 1994
by H. H. against Switzerland and registered on 3 April 1995 under file
No. 26953/95;
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 1953, is a bank employee
residing at Koppigen in Switzerland. Before the Commission she is
represented by Mr K. Hofstetter, a lawyer practising in Lucerne.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 26 June 1984 the applicant, an experienced horsewoman, went
to the stable of F.R. where she should have trimmed a horse for a
wedding ceremony. She tied the horse with a nylon rope to a metal bar.
The horse tore itself away, and the applicant was severely injured by
the metal bar.
The applicant filed an action for damages against F.R., claiming
that F.R. was responsible on four grounds:
- according to Section 58 of the Swiss Code of Obligations
(Obligationenrecht) as owner of the stable in that he had not provided
for sufficient means to tie up horses; this provision states that the
owner of a building or of another installation shall have to compensate
any damage resulting inter alia from faulty works or from insufficient
maintenance;
- according to Section 41 of the Code of Obligations, as he had
culpably failed to provide for warning signs and for the necessary
means to tie up horses; this provision states that whoever unlawfully
causes damage to somebody else, either intentionally or negligently,
is obliged to offer compensation;
- as installation owner of the metal bar which the applicant had
employed when tying up her horse;
- under Section 41 of the Code of Obligations, as he had culpably
failed to make the metal bar safe.
After conducting an oral hearing, the Bern Court of Appeal
(Appellationshof) gave its judgment on 19 May 1993.
In its judgment the Court first found that for the time being the
investigations had correctly been limited to the issue whether F.R. was
liable for an installation failure or for any other reason. The Court
further considered that if F.R. was not liable, the case could be
dismissed; if, on the other hand, F.R. was liable, the proceedings
would have to be continued and further evidence taken, in particular
as to the amount of damages.
The Court then examined the facts and concluded that F.R. was
liable for an installation failure. Thus, F.R. should have considered
that third persons unknown to him would tie a horse to an unsuitable
place and that an accident could result (er hatte vielmehr damit
rechnen müssen, dass ihm nicht bekannte Dritte ... ein Pferd an einem
ungeeigneten Ort anbinden würden und es derart u.U. zu einem Unfall
hätte führen können). However, tolerating an acknowledged danger led
as a rule to culpability with the result that, if a danger arose, there
was responsibility according to Section 41 of the Code of Obligations.
F.R. therefore was responsible as owner of the installation
(Werkeigentümerhaftung) within the meaning of Section 58 of the Code
of Obligations.
F.R. then filed an appeal (Berufung) with the Federal Court
(Bundesgericht).
On 22 February 1994 the Federal Court upheld the claim raised by
F.R. in his appeal and correspondingly dismissed the applicant's
action. The decision was served on 22 June 1994.
In its decision the Court found inter alia that the applicant's
own fault was so intensive that there was no longer an adequate causal
link between the installation fault and the injury. Thus:
<Translation>
"the injured person did not in the present case use the faulty
installations. Rather, she overcame the existing fault by means
of a measure of expediency; thereby, according to the previous
court, she should have realised that the solution chosen did not
offer the required security. Thus, she accepted the possibility
that the horse would tear itself loose. She cannot therefore
exculpate herself with the observation that the accident would
not have happened if the installation had been faultless, i.e.
if there had been an adequate means to tie a horse. Rather, it
must be assumed that she realised the insufficiency of the
installation actually used and acted on her own responsibility,
and that from the point of view of culpability she must be
reproached for this conduct. If a conduct at one's own risk
leads additionally to one's own fault in a particular situation
of danger, there is no longer a responsibility of the owner of
the installation."
COMPLAINT
The applicant complains under Article 6 para. 1 of the Convention
that the courts only dismissed her claim that there had been an
installation failure; they had not dealt with the other three claims
which she had raised before the domestic courts. In particular, the
culpability of F.R. should also have been examined. She submits that
the Federal Court's decision came as a complete surprise to her.
Considerations
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the domestic courts only dealt with one of her four
claims. She submits that the culpability of F.R. should also have been
examined. Moreover, she was surprised by the Federal Court's decision.
With regard to the judicial 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. 21283/93, Dec. 5.4.94, D.R. 77-A, pp. 81, 88).
It is true that the applicant also relies on Article 6 para. 1
(Art. 6-1) of the Convention.
In this respect, the Commission recalls that Article 6 para. 1
(Art. 6-1) of the Convention obliges States to give reasons for their
judgments. However, this provision cannot be understood as requiring
a detailed answer to every argument. The extent to which this duty to
give reasons applies may vary according to the nature of the decision.
The question whether or not a court has failed to fulfil the
obligation, deriving from Article 6 (Art. 6) of the Convention, to
state reasons can only be determined in the light of the circumstances
of the case (see Eur. Court HR, Hiro Balani v. Spain judgment of 9
December 1994, Series A no. 303-B, p. 29 et seq., para. 27).
In the present case the Commission notes that the Bern Court of
Appeal in its judgment on 19 May 1993 concluded that F.R. was liable
for an installation failure. In that court's view, F.R. should have
considered that third persons unknown to him would tie a horse to an
unsuitable place and that an accident could result.
Nevertheless, in its decision of 22 February 1994, the Federal
Court quashed this judgment. Thus, the Court considered that the
applicant's own fault had been so serious that there was no longer an
adequate causal link between the installation fault and the injury.
The applicant had accepted the possibility that the horse would tear
itself loose. She could not therefore exculpate herself by arguing
that the accident would not have happened on other grounds, in
particular if there had been an adequate means to tie a horse.
Thus, the Federal Court concluded that the applicant was herself
responsible for any damage suffered. By establishing the applicant's
responsibility it follows that the Federal Court dismissed any other
claims of the applicant according to which other persons might become
responsible.
It cannot therefore be said that the Swiss courts failed to
fulfil the obligation, deriving from Article 6 (Art. 6) of the
Convention, to give a reasoned decision.
The application is therefore manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Order
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber