VON ARX-DERUNGS v. SWITZERLAND

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that the domestic courts arbitrarily assessed the facts.

This provision states, insofar as relevant:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by a ...

tribunal."

Insofar as the applicants complain that the decision of the Aarau

District Court was incorrect, 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. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

The Commission has examined the applicants' complaint about the

assessment of evidence under Article 6 para. 1 (Art. 6-1) of the

Convention.

According to the Convention organs' case-law, it is for the

national courts to assess the evidence before them. The Commission's

task is to ascertain whether the proceedings considered as a whole,

including the way in which evidence was taken, were fair (see Eur.

Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,

para. 26).

In the present case the Aarau District Court convicted the

applicants after hearing two witnesses. The applicants have not

alleged that they were denied the right to put questions to these

witnesses. There is no indication that in these proceedings the

applicants, who were represented by a lawyer, could not put forward

their point of view or any evidence which they considered pertinent,

or that the proceedings were otherwise unfair.

Insofar as the applicants complain of a breach of the presumption

of innocence under Article 6 para. 2 (Art. 6-2) of the Convention, the

Commission finds no issue under this provision.

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicants complain that the legal provision on the basis of

which they were convicted was too vague. The Commission has examined

this complaint under Article 7 para. 1 (Art. 7-1) of the Convention

which states, insofar as relevant:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national ... law at the time when it was

committed."

The Commission recalls that Article 7 para. 1 (Art. 7-1) of the

Convention embodies the principle that only the law can define a crime

and prescribe a penalty, and the principle that the criminal law must

not be extensively construed to an accused's detriment, for instance

by analogy. It follows from this that an offence must be clearly

defined in law. This condition is satisfied where the individual can

know from the wording of the relevant provision what acts and omissions

will make him liable (see Eur. Court H.R., Kokkinakis judgment of 25

May 1993, Series A no. 260 A, p. 22, para. 52).

In the present case Sections 16 and 20 of the Biberstein General

Police Regulations envisage a punishment of up to 200 SFr inter alia

if animals disturb persons.

The wording of this provision thus makes it sufficiently clear

which acts and omissions are liable, and which punishment is envisaged.

As the Federal Court confirmed in its decision of 15 June 1993, it does

not appear that these provisions were arbitrarily interpreted or

applied when the applicants were fined 200 SFr because their dogs had

caused noise nuisance.

This part of the application is therefore also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Under Article 8 (Art. 8) of the Convention the applicants

complain of a breach of their right to respect for private and family

life, as the animals assist them in accomplishing a mission in the old

persons' home. Article 8 (Art. 8) of the Convention states, insofar

as relevant:

"1. Everyone has the right to respect for his private ... life

...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission recalls its case-law according to which it has

held that the keeping of a domestic pet does not fall within the sphere

of the owner's private life for the purposes of Article 8 (Art. 8) of

the Convention (see No. 6825/74, Dec. 18.5.76, X. v. Iceland, D.R. 5,

p. 86; No. 25517/94, Dec. 3.4.95, unpublished). The Commission does

not find it necessary to determine whether the present case may be

distinguished on the basis of the applicants' submissions. Even

assuming that there was an interference under Article 8 (Art. 8) of the

Convention, it would be justified under Article 8 para. 2

(Art. 8-2) of the Convention.

Thus, the measure complained was based on Sections 16 and 20 of

the Biberstein General Police Regulations and, therefore, "in

accordance with the law" as requested by Article 8 para. 2 (Art. 8-2)

of the Convention. It was also clearly taken "for the protection of

the rights and freedoms of others" within the meaning of this

provision.

Moreover, in view of the applicants' previous reprimand and the

comparatively small amount of the fine imposed, the Commission

considers that the measure, aimed at protecting the applicants'

neighbours from noise nuisance, could reasonably be considered as being

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicants complain under Article 2 of Protocol No. 7 (P7-2)

that they did not have a tribunal to review their case. This provision

states, insofar as relevant:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law ...."

The Commission need not examine whether the applicants' public

law appeal to the Federal Court, in which they complained of a breach

of their constitutional and Convention rights, brought about a review

by a higher tribunal within the meaning of Article 2 para. 1 of

Protocol No. 7 (P7-2-1) (see No. 19028/91, Dec. 9.9.92, D.R. 73 p.

239).

In the Commission's opinion, the offence of which the applicants

were convicted - noise nuisance caused by their dogs - constitutes a

"minor" offence as confirmed by the fine of 200 SFr. According to the

Federal Court's judgment of 15 June 1993, domestic law qualified the

offence as a misdemeanour and thus also regarded it as a minor one.

The Commission therefore considers that the exception to the

right to a review by a higher tribunal, pursuant to Article 2 para. 2

of Protocol No. 7 (P7-2-2), applies.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. Finally, the applicants complain under Article 4 of Protocol

No. 7 (P7-4) that they were twice punished for the same offence in that

the Biberstein municipal council on 19 August 1991 invoked the

reprimand dated 19 June 1989. Reference is also made to the judgment

of the Aarau District Court of 9 December 1992. Article 4 para. 1

(P7-4-1) states:

"1. No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for

an offence for which he has already been finally acquitted or

convicted in accordance with the law and penal procedure of that

State."

The Commission notes that the Aarau District Court convicted the

applicants on 9 December 1992 of offences committed in 1991. These

offences undoubtedly occurred after the reprimand issued on

19 June 1989.

It is true that the Aarau District Court in its judgment of

9 December 1992 referred to the reprimand in 1989. However, it did so

in order to confirm its conclusion in respect of the subsequent offence

at issue. In its judgment of 15 June 1993, the Federal Court, which

merely saw an aggravating factor in this reference when determining the

fine, confirmed that it did not transpire that the applicants had been

convicted for occurrences for which they had already been reprimanded.

The remainder of the application is therefore also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.