N. contre SWITZERLAND

THE FACTS

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

summarised as follows.

The applicant, a Swiss citizen born in 1935, is a pig-breeder

residing at Oberbüren in Switzerland.

I.

In 1965/1966 the applicant's pigs became ill and had to be

killed. The applicant was of the opinion that the illness had been

caused by manure which had entered the drinking water supply. In 1966

he introduced an action against the Oberbüren municipal and water

corporation, claiming damages of 150,000 SFr. The action was

dismissed by the Wil District Court (Bezirksgericht) on 27 November

1969. Following various further appeals, the St. Gallen Cantonal

Court (Kantonsgericht) on 30 October and 14 November 1975 upheld the

action to the amount of 85,844 SFr. Further appeals were eventually

dismissed by the Federal Court (Bundesgericht).

Meanwhile, between 9 November 1971 and 4 July 1978, bankruptcy

proceedings were instituted against the applicant.

II.

On 24 June 1981 the applicant introduced a responsibility

action (Verantwortlichkeitsklage) against the Canton of St. Gallen,

claiming damages of 653,273.60 SFr on account of the long duration of

the previous proceedings. The action was dismissed on 10 December

1982 by the Federal Court on account of forfeiture (Verwirkung).

According to Section 42 of the Federal Judiciary Act

(Organisationsgesetz) the Federal Court decides as the only instance

on civil litigation between Cantons and private persons.

III.

On 12 December 1983 the applicant personally introduced with

the Federal Court a responsibility action against the Canton of St.

Gallen, claiming damages of 1,505,156.85 SFr. The applicant based his

action, which numbered three pages, on the denial of justice

(Rechtsverweigerung) by the St. Gallen authorities. The Federal Court

then requested the applicant to consult a lawyer and introduce a new,

improved action.

As a result, Mr. T., a lawyer, represented the applicant. On

7 May 1984 T. introduced with the Federal Court a request for legal

aid (Armenrecht). By letter of 25 May 1984 the Court pointed out the

manifest lack of responsibility of the Canton of St. Gallen for the

alleged damages. Subsequently, the applicant withdrew T.'s power of

attorney.

On 3 September 1984 the applicant personally introduced an

improved action, numbering approximately 100 pages, in which he

reduced his claims to 1,320,783.20 SFr.

A preparatory hearing (Instruktionsverhandlung) took place on

20 February 1985 at which the applicant was present. On 26 February

1985 the Federal Court granted the applicant legal aid and, upon his

request, appointed H. as his lawyer. However, legal aid was granted

on the condition that it would be withdrawn or reduced if it should

transpire during the proceedings that some or all of the applicant's

claims lacked prospects of success. The Federal Court noted in

particular that on the basis of the action of 3 September 1984 the

prospects of success could not be clearly assessed.

On 23 August 1985 H. informed the Federal Court that the

applicant had beeen involved in friendly settlement negotiations with

lawyers who were possibly responsible for the dismissal of the action

by the Federal Court on 10 December 1982. On the basis of the friendly

settlement reached, the applicant had obtained 226,000 SFr, his lawyer

12,000 SFr. As a result, the applicant withdrew various claims

amounting to 653,273.60 SFr from his action pending before the

Federal Court.

Thereupon, friendly settlement negotiations took place between

the applicant and the Canton of St. Gallen which eventually proved to be

unsuccessful.

On 6 August 1986, the lawyer B., a substitute for H.,

introduced with the Federal Court an improved action. Therein he

claimed under Item No. (1) 256,501.40 SFr damages for the consequences

of the polluted drinking water on the applicant's pig-breeding. Under

Items Nos. (2) - (4) he further requested approximately 400,000 SFr.

On 11 August 1986 the Federal Court invited the Canton of St.

Gallen to reply to the action before 30 September 1986. The

time-limit was prolonged. On 30 September 1986 the Federal Court

decided to limit the proceedings to Item No. (1) of the applicant's

action of 6 August 1986.

The Canton of St. Gallen filed its reply, numbering ten pages,

on 15 December 1986. Therein it claimed inter alia that the Canton

lacked standing (fehlende Passivlegitimation) and that in any event

the action was manifestly ill-founded.

On 23 October 1987 H. informed the Federal Court that the

applicant had withdrawn his power of attorney. By letter of 2

November 1987 the Federal Court replied that in view of the legal aid

granted to the applicant on 26 February 1985 a withdrawal of the power

of attorney was not possible. The Court further stated that, if the

lawyer were to request the court to terminate his representation, the

Court would hardly grant his request at that stage of the proceedings.

On 26 November 1987 the applicant wrote to the Federal Court,

expressing his surprise about the Court's letter of 2 November 1987.

He also requested the appointment of another lawyer.

On 15 December 1987 a further preparatory hearing took place

at the Federal Court. The judge concerned put forward a friendly

settlement proposal which was not accepted. Thereupon, the Court

requested the parties to submit further written statements.

The applicant filed his further statement on 18 April 1988,

his lawyer B. filed a separate statement on 31 May 1988. Meanwhile,

on 27 May 1988, the applicant had written to the Federal Court,

stating that he insisted on the withdrawal of H.'s power of attorney.

On 11 July 1988 the applicant wrote to the Federal Court

complaining that he had received no reply to his letter of 27 May 1988

and that four and a half years after his action had been introduced no

comprehensive reply had yet been filed by the Canton of St. Gallen.

The Canton of St. Gallen filed its reply on 22 August 1988.

On 2 September 1988 the written proceedings were closed.

On 25 September 1988 a hearing was held at the Federal Court.

The applicant, his lawyer B. and a representative of the Canton of St.

Gallen were present. In his pleadings B. expressly maintained the

applicant's claims under Items Nos. (2) - (4) of the action of 6

August 1986.

On 25 October 1988 the Court dismissed the applicant's

action. The judgment numbering ten pages was served on the applicant

on 18 November 1988. Therein the Court found that in view of the

legal aid granted to the applicant on 26 February 1985 it could only

consider the submissions presented by his lawyer to whom no reproach

could be made about careless representation. The Court further

considered that the action had to be dismissed as the Canton of St.

Gallen lacked standing.

A further decision of the Federal Court of 25 October 1988

concerned legal aid. The Court noted therein that the applicant's

claims as to Item No. (1) of his improved action of 6 August 1986

had now been dismissed. With regard to the remaining items the Court

found that they lacked prospects of success inter alia as the Court had

already finally decided certain issues on 10 December 1982. As a

result, the Court decided to withdraw the legal aid granted to the

applicant and to terminate H.'s representation. The Court also

requested the applicant to pay advance costs of 6,000 SFr. If the

applicant failed to pay this sum the Court threatened to declare

inadmissible the remaining items of the applicant's action.

By letter of 16 December 1988 the applicant complained to the

Federal Court that he did not have the means to pay the sum of 6,000

SFr.

On 6 January 1989 the Federal Court declared inadmissible the

remaining items of the applicant's action as he had failed to pay the

advance costs.

I.

In 1979 again many of the applicant's pigs became ill and

died. The applicant introduced an action for damages amounting to

177,076 SFr against the veterinary doctor Sch. whom he claimed was

responsible for the death of the animals. While the Wil District

Court upheld the action to the amount of 35,000 SFr. the St. Gallen

Cantonal Court, upon appeal, dismissed the claim on 17 December 1987.

The applicant then filed a plea of nullity (Nichtigkeits-

beschwerde) with the Court of Cassation (Kassationsgericht) of the

Canton of St. Gallen which the latter declined to deal with as the

applicant had failed to pay the necessary advance costs.

Against the decision of the St. Gallen Cantonal Court of 17

December 1987 the applicant filed an appeal (Berufung) which the

Federal Court dismissed on 4 July 1989.

According to Section 43 of the Federal Judiciary Act

(Organisationsgesetz) the appeal serves as a remedy to complain of the

violation of Federal law. With regard to the violation of

constitutional rights, among which the Federal Court includes

Convention rights, a public law appeal (staatsrechtliche Beschwerde)

must be employed.

On 21 August 1989 the Federal Court dismissed the applicant's

request to reopen the Federal Court's decision of 4 July 1989.

In a further decision of 13 September 1989 the Federal Court

declared inadmissible as being out of time the applicant's public law

appeal directed against the proceedings before the Court of Cassation.

II.

Meanwhile, Sch. introduced execution proceedings against the

applicant. On 1 September 1989 the Wil District Court granted

execution (definitive Rechtsöffnung) to the amount of 41,751 SFr.

Upon the applicant's appeal the St. Gallen Cantonal Court requested an

advance payment of costs of 300 SFr. As the applicant failed to pay

this amount, the proceedings were terminated. The applicant then

requested reinstitution into the time-limit. This request was

dismissed by the St. Gallen Cantonal Court on 29 November 1989. The

applicant's further public law appeal was dismissed by the Federal

Court on 9 January 1990.

I.

On 15 December 1982 the applicant was stopped in his car by

the police. He was suspected of driving under the influence of

alcohol and had to undergo a breath analysis the result of which was

positive. Thereupon a blood test was ordered which was sent to the

St. Gallen Forensic Medicine Institute (gerichtsmedizinisches

Institut). In its expert opinion the Institute concluded that the

applicant had had a blood alcohol concentration between 1.4 and

1.5 °/oo.

On 4 March 1983 criminal proceedings were instituted against

the applicant. On 8 October 1985 he was questioned by the

investigating judge.

On 27 October 1987 the Wil District Office (Bezirksamt)

informed the applicant of its intention to issue a penal order

(Strafbefehl) against him. The applicant was given a time-limit of

eight days to consult the case-file and submit any further evidence.

On 5 November 1985 the applicant's lawyer requested

consultation of the case-file. On 6 November 1985 the investigating

judge replied that the time-limit had expired on 4 November 1985; he

also transmitted a penal order, dated 6 November 1985, in which the

Wil District Office convicted the applicant of driving under the

influence of alcohol and obstruction of official acts, and sentenced

him to a fine of 200 SFr and two weeks' suspended imprisonment.

The applicant filed an appeal claiming in particular that he

had received the letter of 27 October 1985 only on 29 October, for

which reason the time-limit expired only on 6 November 1985. The

appeal was dismissed by the Indictment Chamber (Anklagekammer) of

Canton St. Gallen on 3 February 1986. The applicant's further public

law appeal was declared inadmissible by the Federal Court on 14

January 1987, inter alia as the applicant had not complied with the

requirements under Section 90 of the Federal Judiciary Act. Under

this provision, the public law appeal must state in time inter alia

the constitutional or Convention rights which the applicant considers

to have been violated.

II.

Meanwhile, on 21 November 1985, the applicant filed an

objection against the penal order. The case was then referred to the

Wil Judicial Commission (Gerichtskommission) which on 1 September 1987

confirmed the previous conviction. The applicant's appeal was

dismissed on 8 March 1988 by the St. Gallen Cantonal Court

(Kantonsgericht). On 16 December 1988 the Court of Cassation of the

Canton of St. Gallen dismissed his plea of nullity. His subsequent

plea of nullity to the Federal Court was dismissed on 28 February

1989. The Court found, inter alia, that insofar as the applicant

complained of not having had a fair trial, as for instance that a

further expert opinion should have been ordered, this had to be raised

in a public law appeal.

Against the decision of the Court of Cassation of 16 December

1988 the applicant also filed a public law appeal in which he

complained inter alia that he did not have a fair trial and that the

previous instance had incorrectly assessed the evidence. He also

pointed out that the investigating judge had required nearly three

years for his investigations and that under such

circumstances a proper investigation was not possible.

The Federal Court dismissed the applicant's public law appeal

on 3 May 1989. It found inter alia that reliance could be placed on

the expert opinion submitted in the proceedings by the St. Gallen

Forensic Medicine Institute as to the applicant's blood alcohol

concentration. For this reason the Court regarded it as unnecessary

to obtain further evidence, for instance by hearing witnesses who

could testify as to the alcohol consumed by the applicant. With

regard to the period of three years required for the investigation,

the Court found that this comparatively lengthy delay had not caused

the applicant any prejudice.

Apparently in the proceedings concerning the applicant's first

responsibility action against the Canton of St. Gallen he requested

the lawyer L. to represent him. When L.'s office missed a time-limit

for filing the applicant's appeal, the applicant requested damages.

Negotiations then started inter alia with an insurance company with

whom L.'s office was insured. Subsequently, the applicant attempted to

introduce criminal proceedings against L. as well as against another

lawyer and the responsible agents of the insurance company. The

proceedings were eventually terminated. The applicant then

introduced, in last resort, a public law appeal with the Federal Court

which was dismissed on 20 January 1987.

Following the outcome of the second action which the applicant

had brought against the Canton of St. Gallen, he introduced with the

Federal Finance Department (Eidgenössisches Finanzdepartement) a claim

for damages which, he alleged, resulted from the Federal Court's

decision of 25 October 1988 (see above A). The Department dismissed

the claim on 23 March 1989.

The applicant then introduced with the Federal Court a claim

for damages, amounting to 671,554.90 SFr. against the Swiss Confederation

(Schweizerische Eidgenossenschaft). On 14 December 1989 the Federal

Court dismissed the applicant's challenge of Federal Court judges and

his request for legal aid, as the decisions of the Federal Court of

which the applicant complained had become definitive and could not be

made the object of a claim for damages. The Court therefore invited

him to pay advance court costs amounting to 6,500 SFr.

The applicant then requested the reopening of the previous

proceedings. On 6 March 1990 the Federal Court rejected this request

and again invited the applicant to pay advance court costs amounting

to 6,500 SFr.

In a further decision of 4 May 1990 the Federal Court noted

that the applicant had failed to pay the advance court costs and

declared his action inadmissible.

COMPLAINTS

In Application No. 15252/89 the applicant complains under

Article 6 of the Convention of the length of the proceedings before

the Federal Court.

In Application No. 15629/89 the applicant complains under

Article 6 of the Convention of the decision of 25 October 1988 of the

Federal Court which refused him legal aid.

In Application No. 15630/89 the applicant complains of the

dismissal by the Federal Court of his action on 25 October 1988. He

complains that he did not have a lawyer of his own choice and that the

proceedings lasted too long. The applicant relies on Article 6 of the

Convention.

In Application No. 15857/89 the applicant complains under

Article 6 of the Convention of the unfairness of the various

proceedings and the ensuing incorrect decisions. With regard to the

proceedings resulting in the Federal Court's decision of 4 July 1989

he complains that neither the Wil District Court nor the St. Gallen

Cantonal Court heard witnesses to whom the applicant had referred. He

had also not been granted legal aid. In respect of the decision of

the Federal Court of 13 September 1989 the applicant complains of the

proceedings before the Court of Cassation of the Canton of St. Gallen.

The applicant also directs his complaints against the decisions of the

Federal Court on 21 August 1989 and 9 January 1990 as well as against

various Federal Court judges.

In Application No. 15252/89 the applicant complains under

Article 6 of the Convention of the refusal of the authorities, in

particular of the Federal Court in its decision of 14 January 1987, to

let him consult the case-file and submit further evidence in the

proceedings leading to the penal order of 6 November 1985. He further

complains that these criminal proceedings were not conducted "within a

reasonable time" within the meaning of Article 6 para. 1 of the

Convention.

In Application No. 15628/89 the applicant complains under

Articles 5 and 6 of the Convention of the unfairness of the criminal

proceedings instituted against him, resulting in the incorrect

decisions of the Federal Court of 28 February and 3 May 1989. He

claims that these proceedings were unlawful and that a further expert

opinion should have been ordered. He further complains of the manner

in which the policemen handled him when he was stopped in his car.

The applicant also refers to his complaints made in Application No.

15252/89.

In Application No. 15252/89 the applicant complains under

Article 6 of the Convention that the Swiss authorities did not pursue

the criminal proceedings which he attempted to institute against

various persons.

In Application No. 17384/90 the applicant complains under

Article 6 of the Convention of the Federal Court's decision of 4 May

1990. He also complains of the lack of impartiality of the Federal

Court judges and of the sum of 6,500 SFr which he should have paid in

advance.