Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights
AS TO THE ADMISSIBILITY OF
Application No. 17748/91
by Guy ANKERL
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 July 1994, the following members being present:
MM. H. DANELIUS, Acting President
S. TRECHSEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 10 December 1990
by Guy Ankerl against Switzerland and registered on 4 February 1991
under file No. 17748/91;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on 8 June
1993 and the observations in reply submitted by the applicant on
10 July 1993;
Having deliberated;
Decides as follows:
THE FACTS
Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, a Swiss citizen born in 1933, is a sociology
professor residing in Geneva.
I.
Since 1978 the applicant sub-leased an apartment in Geneva from
the Régie Immobilière SA which in turn leased it from the proprietor,
the SI Chrysanthemum SA. Apparently, the applicant had no contract in
writing. The Régie Immobilière SA eventually went bankrupt. In 1986
the Régie Naef SA, acting in the name of Chrysanthemum, informed the
applicant that the building would be renovated and raised. On
8 May 1987 the Régie Naef SA informed the Régie Immobilière of the end
of its lease contract; it also requested the latter to terminate the
applicant's sub-lease.
On 14 July 1987 the Régie Naef transmitted to the applicant pay
slips (bulletins de versement) for his rent, while stating that it did
not thereby recognise the existence of a contract between him and the
proprietor. On 21 July 1987 the Régie Immobilière informed the
applicant of the end of the lease as of 28 February 1988.
Eventually, the GPR SA took over administration of the building.
The applicant attempted to obtain from the GPR SA a principal lease
contract. Mr. L., the administrator at GPR SA, forwarded the request
to the proprietor who refused it. The GPR SA then transmitted pay
slips to the applicant who, by letter dated 29 February 1988, confirmed
that he would in future pay the rent into the account mentioned. This
letter remained without a reply.
On 22 April 1988 the applicant and his wife had a meeting with
Mr. L. The discussion apparently concerned the issue whether or not
the applicant could remain in his apartment.
II.
On 13 October 1988 the SI Chrysanthemum SA requested the Geneva
First Instance Court (Tribunal de première instance) to order the
vacation of the applicant's apartment. The applicant contested this
as the proprietor had demonstrated the intention to conclude a lease
contract with him as the principal lessee.
On 19 May 1989 the Geneva First Instance Court held a hearing at
which it attempted to establish the content of the discussion on
22 April 1988. It first heard Mr. L. who spoke under oath (see below,
Relevant domestic law). Mr. L. stated that in his recollection he had
clearly informed the applicant that there no longer existed a lease
contract. Insofar as the applicant had expressed the wish to continue
to reside in the apartment, he, Mr. L., had clearly said that he
himself could not take any decision in this respect.
The applicant's wife then made a statement, though not under oath
(cf. below, Relevant domestic law). She stated inter alia that Mr. L.
had informed them that the building would be raised, and that during
renovation work they could occupy another apartment. The applicant's
wife concluded that they had left Mr. L. reassured and optimistic
(rassurés et optimistes). The applicant's wife stated that she could
not remember whether Mr. L. had said that he would speak with the
proprietor; she had had the impression that he enjoyed a certain
autonomy.
Finally, the applicant spoke, claiming that when he concluded the
lease contract with the Régie Immobilière SA, he had not realised that
he was in fact sub-leasing the apartment.
The Geneva First Instance Court gave its decision on
12 October 1989. Therein, it held that the parties were not bound by
a lease contract, and it ordered the applicant to vacate the apartment.
The Court first summarised the facts of the case and the
statements of the persons attending the hearing on 19 May 1989. It
then stated that it had to examine whether the proprietor had given its
agreement to a contract, inter alia by letting "the collaborator of the
administration explain to the (applicant) that he would refer the
matter to the proprietor" ("en laissant exposer à ce dernier, par un
collaborateur de la régie, qu'il allait en référer à la société
propriétaire").
The Court then considered inter alia, without reference to any
particular statement of a person attending the hearing, that "in the
circumstances of the particular case, a lease contract was not
concluded, neither orally (no proof having been adduced of an oral
agreement), nor even by a concluding act" ("dans les circonstances du
cas d'espèce - il n'y a pas eu conclusion d'un bail ni verbal la
preuve d'un accord verbal n'est pas rapportée, ni même par acte
concluant").
III.
The applicant then filed an appeal which the Court of Appeal
(Cour de justice) of the Canton of Geneva dismissed on 7 June 1990.
IV.
In his subsequent public law appeal (recours de droit public) to
the Federal Court (Tribunal fédéral) the applicant complained inter
alia under Articles 6 and 14 of the Convention that the courts had
arbitrarily relied solely on the statement of Mr. L., and disregarded
his wife's statement. The public law appeal states:
Translation
"the fact that the representative of one of the parties was
admitted to be heard as a sworn witness creates a flagrant
inequality in respect of the other party who after all was not
under the circumstances in a position to present witnesses who
could be sworn. The equality of arms guaranteed both by the
Federal Constitution and by the European Convention of Human
Rights was not respected" (public law appeal, p. 17).
French:
"le fait d'avoir admis que le représentant d'une partie soit
entendu comme témoin assermenté crée une inégalité flagrante avec
l'autre partie qui elle n'a pas été, par la force des choses, en
mesure de citer des témoins susceptibles d'être assermentés.
L'égalité des armes garantie tant par la Constitution Fédérale
que par la Convention Européenne des droits de l'Homme n'a pas
été respectée".
In the conclusion to his public law appeal the applicant stated:
Translation
"There is not the slightest doubt that the proceedings
terminated by the judgment against which I am appealing are
marred by numerous faults and that it constitutes in particular
a violation of Article 4 of the Constitution and of Articles 6
and 14 of the Convention" (public law appeal, p. 22).
French
"Il ne fait aucun doute que la procédure ayant abouti à l'arrêt
dont recours est entachée de nombreux vices et qu'elle consacre
notamment la violation de l'article 4 de la Constitution et les
articles 6 et 14 CEDH."
On 3 October 1990 the Federal Court dismissed the public law
appeal. The Court referred inter alia to the applicant's complaint
that Mr. L. was heard as a witness under oath, whereas in the
applicant's view he should have been assimilated to the party which he
represented. The Court noted that the applicant was confusing the
representatives of the company, on the one hand, and mandated persons
such as the administrator of a building, on the other. The Federal
Court found that the lower Courts had not arbitrarily interpreted the
Geneva Code of Civil Procedure when they did not apply its Section 225
to Mr. L. when heard as a witness. The Court continued:
Translation
"according to the commentators of the Geneva Code of Civil
Procedure, hearing a person for enquiries has only an informative
purpose and no probative value... In the present case it was
not therefore arbitrary not to consider the explanations
furnished by [the applicant's wife]. In fact, the applicant has
not at all demonstrated that the Cantonal Court interpreted in
an untenable manner the statements of the witness under oath,
[Mr. L.]."
French
"selon les commentateurs de la loi de procédure civile genevoise,
l'audition à titre de renseignement n'a qu'une portée
informative, sans valeur probante... Il n'y avait donc rien
d'arbitraire, en l'espèce, à ne pas tenir compte des explications
fournies par [l'épouse du requérant]. Le recourant ne démontre,
du reste, nullement en quoi la cour cantonale aurait interprété
d'une manière insoutenable les déclarations du témoin assermenté,
[M. L.]."
Relevant domestic law
Section 222 of the Geneva Code of Civil Procedure (Loi de
procédure civile) states that every person appearing as a witness must
make his statement under oath (sous la foi du serment).
According to Section 225 para. 1, certain persons, in particular
the spouse of one of the parties, cannot be heard as witnesses.
Section 226 provides that the persons mentioned in Section 225 may be
heard, though not under oath, and only for information (seulement à
titre de renseignement).
COMPLAINTS
The applicant complains under Articles 6 and 14 of the Convention
of the unequal treatment as regards the hearing of witnesses. The
Geneva First Instance Court only had three witnesses to prove the exact
content of the discussion on 22 April 1988: Mr. L., the applicant, and
his wife. In Geneva, the administrator of a building normally
concludes a lease contract. The Geneva Court heard Mr. L. as a witness
under oath, although as representative of the proprietor he had just
as much a direct and personal interest in the outcome of the case as
the applicant himself. According to Swiss law, a contract concluded
orally is valid.
The applicant submits that testimony given under oath is of
crucial importance. A procedure admitting testimony under oath of only
the administrator, but not of the lessee, places the latter in a
disadvantageous position. The applicant concludes that there was
unequal treatment in that neither he nor his wife could give testimony
under oath.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 December 1990 and registered
on 4 February 1991.
On 31 March 1993 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and the merits of the
application.
The Government's observations were received by letter dated
8 June 1993 and the applicant's observations in reply were dated
10 July 1993.
THE LAW
1. The applicant complains under Articles 6 and 14 (Art. 6, 14) of
the Convention of unequal treatment as regards the hearing of a
witness.
2. Under Article 26 (Art. 26) of the Convention the Commission may
deal with the case only after domestic remedies have been exhausted.
The Government contend that the applicant did not exhaust
domestic remedies. They argue that the applicant did not sufficiently
substantiate in his public law appeal his complaint under Articles 6
and 14 (Art. 6, 14) of the Convention and thus committed a procedural
error, which under the case-law of the Convention should result in non-
exhaustion of domestic remedies. Secondly, the Government submits that
the applicant did not raise the same complaints before the Federal
Court and the Commission. It is pointed out that before the Federal
Court the applicant questioned an interpretation of the cantonal Code
of Civil Procedure applied by the courts of lower instances in deciding
on hearing the applicant's wife as a witness under oath, as being
arbitrary, unfair and creating a flagrant inequality between the
parties. Before the Commission the applicant relied on Articles 6 and
14 (Art. 6, 14) of the Convention in criticising the same decisions of
the lower courts. The Government consider it evident that the
complaints raised before the Commission had never been raised before
the Federal Court.
The applicant submits that in fact he motivated his complaint in
his public law appeal to the Federal Court under Articles 6 and 14
(Art. 6, 14) of the Convention and considers that before the Federal
Court he has raised the same complaints as before the Commission.
The Commission notes that in his public law appeal the applicant
expressly complained that "the fact that the representative of one of
the parties was admitted to be heard as a sworn witness created a
flagrant inequality in respect of the other party". Moreover, the
applicant explicitly invoked Articles 6 and 14 (Art. 6, 14) of the
Convention. In the Commission's view he did therefore raise the same
complaint as he is now making before the Commission.
The application cannot therefore be rejected under Article 26
(Art. 26) of the Convention for non-exhaustion of domestic remedies
within the meaning of that provision.
3. The applicant complains under Articles 6 and 14 (Art. 6, 14) of
the Convention that a procedure whereby a court in civil proceedings
concerning the existence of a lease contract admits testimony under
oath of the administrator of the company (i.e. the proprietor), but not
of the lessee or his wife, places them in a disadvantageous position.
4. The Commission, having regard to the parties' submissions under
Articles 6 para. 1 and 14 (Art. 6-1, 14) of the Convention, considers
that this application raises complex issues of law and fact which can
only be resolved by an examination of the merits. This complaint
cannot, therefore, be declared manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Acting President of the
Second Chamber Second Chamber
(K. ROGGE) (H. DANELIUS)