J.M. v. SWITZERLAND

THE FACTS

The applicant is a Swiss citizen born in 1924. He is a

businessman and resides in Zurich.

The facts of the case, as submitted by the applicant may be

summarised as follows.

The particular circumstances of the case

Government of 23 October 1991 (first proceedings).

On 11 December 1991 the applicant introduced a public law appeal

(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).

He appealed against a decision of the Canton of Zurich Government

(Regierungsrat) of 23 October 1991 by which two appeals lodged by him

against municipal zoning plans (Nutzungsplan) had been dismissed.

The applicant requested the exclusion for bias, on different

grounds, of thirty Federal Court judges. The applicant further alleged

that the remaining Federal Court judges were also biased because they

would decide against him through loyalty to their colleagues. He

requested that an extraordinary chamber should be established pursuant

to Section 26 para. 3 of the Federal Judiciary Act (Bundesgesetz über

die Organisation der Bundesrechtspflege).

On 8 January 1992 the applicant was invited to pay, pursuant to

Section 150 of the Federal Judiciary Act, advance court fees of

5,000 SFr by 7 February 1992. He was informed that if he failed to pay

the sum, his appeal would be declared inadmissible (auf Ihre

Rechtsvorkehr wird nicht eingetreten). Upon the applicant's request

the time-limit was extended until 13 March 1992.

On 13 March 1992 the applicant complained of the amount of the

advance court fees. He alleged that an appropriate amount in his case

would be 1,500 SFr. He disagreed with the Federal Court's arguments

that this sum conformed with the law in force. He informed the Federal

Court that if the amount was not reduced, he waived, pursuant to

Section 150 para. 4 of the Federal Judiciary Act, his entitlement to

a formal judgment in the matter. He claimed that his appeal should

then be struck off the list of cases by a simple order

(Abschreibungsbeschluss) implying no or minimum court fees.

By judgment of 3 November 1992 the Federal Court, consisting of

three judges challenged on the ground of having participated in earlier

proceedings involving the applicant (which concerned different subject-

matters), declared the public law appeal inadmissible pursuant to

Section 150 para. 4 of the Federal Judiciary Act. It noted that the

applicant had neither waived his claim nor paid, within the extended

time-limit, the advance court fees.

The Federal Court declared inadmissible the general request for

the exclusion of judges. The applicant was charged court fees of 1,000

SFr. The judgment was served on 10 December 1992.

Commission of the Canton of Zurich Court of Appeal of

23 October 1992 (second proceedings)

On 3 December 1992 the applicant introduced, as the chairman of

his limited company (Verwaltungsratspräsident), a public law appeal

with the Federal Court. The appeal concerned the refusal of the

Administrative Commission (Verwaltungskommission) of the Canton of

Zurich Court of Appeal (Obergericht) to exclude for bias a Zurich

District Court (Bezirksgericht) judge in proceedings concerning the

enforcement (Rechtsöffnung) of a sum owed by the limited company.

As in the first proceedings, the applicant requested the

exclusion of thirty Federal Court judges and alleged that the remaining

judges were also biased because of loyalty to their colleagues.

On 17 December 1992 the applicant was invited to pay advance

court fees of 3,000 SFr by 15 January 1993. The order was issued by

a judge who was challenged because of his participation in earlier

proceedings brought by the applicant and on the ground that the

applicant had requested, in 1990, his criminal prosecution. On

14 January 1993 the applicant challenged the order to pay the advance

court fees. He claimed, with reference to a decision of the Zurich

Landlord and Tenant Court (Mietgericht), that the Administrative

Commission was not a judicial body and that its decision challenged

before the Federal Court was null and void. He considered that under

those circumstances his public law appeal was to be approved

(gutheissen) and that it was therefore unnecessary to pay any court

fees in advance.

The applicant further informed the Federal Court that should his

request for the waiver of the advance court fees be rejected, he wished

to exhaust domestic remedies in order to introduce his case before the

European Commission of Human Rights. He expressed the opinion that the

public law appeal should then be struck off the list of cases by an

order. He also reiterated his request for the exclusion of judges.

He alleged that the judge who had issued the advance fees order was not

impartial because of his active participation in the public discussion

on Switzerland's accession to the European Economic Area.

It appears from the documents submitted that the time-limit for

payment of the advance court fees was extended on 26 January 1993.

On 23 March 1993 the Federal Court delivered a judgment by which

it declared the public law appeal inadmissible. The Court consisted

of three judges two of whom were challenged on the ground of their

previous participation in proceedings brought by the applicant which

concerned a different subject-matter. One of the judges was also

challenged on the ground that on 31 May 1990 the applicant had lodged

a request for his criminal prosecution as he had taken wrong decisions

in matters raised by the applicant. The Federal Court imposed court

fees of 1,000 SFr on the limited company of the applicant.

of Cassation of 1 December 1992 (third proceedings)

On 19 June 1992 the Canton of Zurich Court of Appeal confirmed

the Zurich District Court's decision not to grant a provisional

attachment of property (Arrest). The property at issue belonged to a

debtor of the limited company owned by the applicant and was valued at

21,543.70 SFr. On 1 December 1992 the Canton of Zurich Court of

Cassation (Kassationsgericht) dismissed the applicant's plea of nullity

(Nichtigkeitsbeschwerede) in respect of the Court of Appeal's decision.

On 25 January 1993 the applicant introduced, as the chairman of his

limited company, a public law appeal with the Federal Court.

The applicant requested, for various reasons, the exclusion of

all Federal Court judges.

On 27 January 1993 the applicant was invited to pay advance court

fees of 10,000 SFr by 19 February 1993. On 19 February 1993 he

requested the exclusion of the President of the Civil Law Chamber II

(Zivilabteilung) who had issued the advance court fees order. The

applicant alleged that this judge had taken wrong decisions in previous

proceedings to which the applicant was a party (which had concerned a

different subject-matter). Furthermore, this judge was allegedly

biased because he had once refused the applicant's request to authorise

the disclosure of the applicant's full name in a Federal Court judgment

published in a newspaper.

The applicant also complained that the advance court fees were

prohibitively high and requested their reduction, by an independent and

impartial judge, to a maximum of 800 SFr.

On 24 February 1993 the Federal Court reduced the advance court

fees to 2,000 SFr and extended the time-limit for their payment until

19 March 1993. The applicant was informed that his additional request

of 19 February 1993 for the President of the Civil Law Chamber II to

be excluded was of no effect (unbeachtlich).

On 18 March 1993 the applicant reiterated his request for the

President of the Civil Law Chamber II to be excluded and asked for a

further reduction of the advance court fees to 800 SFr. On

24 March 1993 the Federal Court declared the public law appeal

inadmissible. The judges who delivered the judgment were subject to

challenge because of their participation in earlier proceedings brought

by the applicant (with a different subject-matter). In addition, one

of them was challenged on the ground that the applicant had lodged a

request for his criminal prosecution in 1988. The limited company of

the applicant was charged court fees of 2,000 SFr.

The Federal Court noted that the general request for the

exclusion of all judges was inadmissible. Furthermore, the Federal

Court did not consider the reasons adduced in the request for the

exclusion of the President of the Civil Law Chamber II as a sufficient

proof of the latter's bias.

Department of the Economy of 25 February 1993 (fourth

proceedings)

On 25 February 1993 the Canton of Zurich Department of the

Economy (Direktion der Volkswirtschaft) refused to enforce an earlier

decision it had made on an official survey (Grundbuchvermessung) and

rejected the applicant's request to prevent the municipality concerned

from requiring payment of 55,509 SFr for the local zoning proceedings

(Quartierplanverfahren). On 19 March 1993 the applicant introduced an

administrative law appeal (Verwaltungsgerichtsbeschwerde) against this

decision with the Federal Court.

The applicant requested the exclusion of all Federal Court judges

elected prior to 31 October 1991 and challenged, for various reasons,

32 particular judges.

On 25 March 1993 the applicant was invited to pay advance court

fees of 2,000 SFr by 30 April 1993. On 29 April 1993 he asked for the

exclusion, on the same grounds as in the third proceedings, of the

President of the Civil Law Chamber II who had issued the advance fees

order. The applicant further requested the revocation, or, as the case

might be, an extension of the time-limit for payment of the advance

court fees. He claimed that his request for the exclusion of judges

should be examined in public proceedings to which he would be a party.

Since the applicant had neither contested the obligation to pay

the fees for the proceedings in advance nor complained of their amount,

the Federal Court considered his request for an extension of the time-

limit abusive. On 5 May 1993 the Federal Court declared the

administrative law appeal inadmissible. The President of the Civil Law

Chamber II and a judge whose criminal prosecution the applicant had

requested in 1988 participated in the delivery of the judgment. The

applicant was charged court fees of 2,000 SFr.

The Federal Court noted that, like in the previous proceedings

brought by the applicant or his limited company, the challenge of

practically all Federal Court judges for bias was abusive and

inadmissible for reasons of which the applicant had earlier been

informed.

The relevant domestic law

Pursuant to Section 150 para. 1 of the Federal Judiciary Act, a

person who calls upon the Federal Court in civil cases must, upon order

of the President, provide a security for the probable court fees.

According to para. 4 of the same Section, if the security is not

provided within the time-limit, the claim shall be declared

inadmissible.

Pursuant to Section 153 para. 2 of the Federal Judiciary Act, the

Federal Court can dispense with the court fees entirely or partially

if a case is settled by waiver (Abstandserklärung) or if it is

terminated by a friendly settlement (Vergleich).

Pursuant to Section 153a para. 1 of the Federal Judiciary Act the

fees for the proceedings are to be determined according to the value,

the volume and the complexity of the subject-matter, the way the

proceedings have been conducted and the financial situation of the

participants. Para. 2 (b) of the same Section provides for fees of

between 200 and 5,000 SFr in case of public or administrative law

appeals which do not involve pecuniary interests.

The scale of fees supplementing Section 153a of the Federal

Judiciary Act provides for the following fees when the Federal Court

does not decide as the only court:

Value of the subject-matter (SFr) Court fees (SFr)

20,000 - 50,000 1,000 - 5,000

50,000 - 100,000 1,500 - 5,000

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that his right to a fair and public hearing by an impartial tribunal

was violated in the above four proceedings leading to the Federal Court

judgments of 3 November 1992, 23 and 24 March 1993 and 5 May 1993 in

that:

a) the matters were decided by biased judges in spite of the

applicant's requests for their exclusion;

b) the advance court fees were imposed on him by biased judges and

were disproportionately high;

c) the judgments were delivered despite the fact that he had waived

his claims by failure to pay the advance court fees;

d) there was no public hearing in his cases.

The applicant further alleges a violation of Article 13 of the

Convention in that he was deprived, by the above Federal Court

judgments, of an effective remedy against the alleged violations of the

Convention by different Canton of Zurich authorities.

Finally, the applicant alleges a violation of Article 14 of the

Convention in that the Federal Court delivered judgments in his cases

despite the fact that he had not paid the advance court fees. He

considers that the judgments represented a punishment. He alleges that

instead of delivering the judgments the Federal Court could have issued

orders striking off the cases (Abschreibungsverfügungen), as in cases

brought by other applicants, and charged him considerably lower fees.