14090/88

 AS TO THE ADMISSIBILITY OF Application No. 14090/88 by K. against Switzerland The European Commission of Human Rights sitting in private on 14 December 1988, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY Mr. H.C. KRÜGER Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 29 December 1983 by K. against Switzerland and registered on 2 August 1988 under file No. 14090/88; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The applicant, a Dutch citizen born in 1929, is an engineer resident in Kirchdorf in Switzerland. His previous applications Nos. 10807/84 and 14268/88, which the Commission declared inadmissible on 4 December 1984 and 14 October 1988, respectively, do not relate to the present case. The facts submitted in this case may be summarised as follows. Mr Sch., the applicant's neighbour, was regularly engaged on his premises in sawing and other woodwork. In 1980 the applicant complained to the municipal council (Gemeinderat) of Obersiggenthal about noise nuisance. The latter then ordered Sch. to use noisy machines only during working hours and not before 8 a.m. on Saturdays. The applicant appealed against this order to the Aargau Building Department (Baudepartement) and eventually to the Aargau Administrative Court (Verwaltungsgericht). In the ensuing proceedings Sch. was represented by the lawyer W. On 25 March 1982 the Administrative Court partly upheld the applicant's appeal to the extent that Sch. was permitted to use the power saw and other machines only from Monday to Friday between 9 and 11 a.m. and between 3 and 5 p.m. The Court thereby stated that it had the competence to examine freely issues of fact, law and discretion. The applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht) in which he complained that the Administrative Court had not considered various legal provisions or had misinterpreted the facts. In the ensuing proceedings, the President of the competent chamber of the Aargau Administrative Court wrote to the Federal Court on 3 September 1982 that the Administrative Court had examined the applicant's case freely. The Federal Court dismissed the public law appeal on 29 June 1983, stating inter alia that the Administrative Court's decision was not arbitrary. On 29 October 1983 the applicant requested the Federal Court to reopen the proceedings. He submitted that after its decision of 29 June 1983 he had learned that W., the lawyer of Sch., was also a substitute judge at the Aargau Administrative Court. The applicant further complained that the Administrative Court had not freely examined all issues. The Federal Court dismissed the request on 16 January 1984 stating that the applicant could have raised the complaints in his previous public law appeal. The applicant then requested the Aargau Administrative Court to reopen the proceedings, inter alia on account of the position of W. In these proceedings, the Court apparently extended in view of holidays a time-limit granted to Sch. to reply to the request. On 31 December 1984 the Administrative Court dismissed the applicant's request. The Court found that a problem could arise if ordinary judges also acted as lawyers in the proceedings before the same court, since links might be established among the judges of the bench and the impression could arise that certain cases were being privileged. In the Court's opinion, the situation was different in the case of part-time, rather than full-time, substitute judges, such as W., who were only called to sit on certain cases if ordinary judges were prevented from doing so, or if the substitute judge had specialised knowledge. The latter were truly "substitute", and no problem of personal links arose here. In fact, it would not be possible to find sufficient legally trained persons as substitute judges, if they were not permitted to act as lawyers. The Court also pointed out that substitute judges acted in other cases as lawyers also before the Aargau Court of Appeal (Obergericht) and the Federal Court. The applicant then unsuccessfully complained to the Aargau Parliament (Grosser Rat) about the Administrative Court and the Court of Appeal. COMPLAINTS The applicant complains that the Aargau Administrative Court did not on 25 March 1982 freely decide on all issues raised by him. He refers inter alia to the letter of the President of the Aargau Administrative Court of 3 September 1982. He further complains that W., the legal representative of Sch., was also a substitute judge at the Administrative Court which was not therefore impartial. He relies in this respect on Article 6 para. 1 of the Convention. The applicant also generally complains of the various decisions. He alleges an unequal extension of the time-limits in favour of the opposing party and that he has been discriminated against as a foreigner. He complains of the imposition of certain court costs and generally of the manner in which the authorities have dealt with his case. He invokes Articles 4, 6, 8, 10, 13, 14 and 17 of the Convention. THE LAW 1. The applicant complains of the decisions of the Aargau Administrative Court and the Federal Court and of the proceedings before the Administrative Court. He relies in particular on Article 6 para. 1 (Art. 6-1) which states in its first sentence: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." With regard to the 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. 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). It is true that in this case the applicant also complains under Article 6 para. 1 (Art. 6-1) that the Aargau Administrative Court, in its decision of 25 March 1982, did not decide freely on all the issues raised by the applicant before that Court. However, the Commission notes that the Administrative Court expressly stated in its decision of 25 March 1982 that it had the competence to examine freely issues of fact, law and discretion in the applicant's case. This was subsequently confirmed by the President of the Court in his letter of 3 September 1982 to the Federal Court. The Commission therefore finds no issue here under Article 6 para. 1 (Art. 6-1) of the Convention. The applicant further complains that W., the legal representative of Sch., was also a substitute judge at the Aargau Administrative Court which was not therefore impartial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission notes that the applicant did not file a new public law appeal against the decision of the Aargau Administrative Court of 31 December 1984. The Commission need nevertheless not resolve whether the applicant has complied with the condition as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, since this part of the application is in any event manifestly ill-founded for the following reason. In examining a complaint of partiality, the Commission must consider the function exercised by the person in question and the internal organisation of the court. In this respect, even appearances may be important. What is at stake is the confidence which the courts must inspire in the public. The test to be applied is whether as a result of the particular fact the impartiality of the Court is capable of appearing open to doubt (see Eur. Court H.R., Piersack judgment of 1 October 1982, Series A No. 53, p. 14 para. 30). In the present case the Aargau Administrative Court drew a distinction in its decision of 31 December 1984 between ordinary and substitute judges and, with regard to the latter, between full-time and part-time substitute judges. The Court found that its impartiality could in fact be called in question if one of the ordinary judges acted as a legal representative of one of the parties. However, part-time substitute judges, such as W., were truly substitute in that they were only called in for certain cases and no personal links would arise with other judges on the bench. In these circumstances the Commission considers that the impartiality of the Aargau Administrative Court cannot be called in doubt. It follows that the applicant's complaint does not disclose any appearance of a violation of the rights set out in Article 6 para. 1 (Art. 6-1) of the Convention. The Commission concludes that in this respect the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant also complains, apparently under Article 14 (Art. 14) taken together with Article 6 (Art. 6) of the Convention, of the allegedly unfair extension of time-limits in favour of the opposing party; he submits that in the proceedings at issue he was discriminated against as a foreigner. He further complains under Articles 4, 8, 10, 13, 14 and 17 (Art. 4, 8, 10, 13, 14, 17) of the manner in which the authorities dealt with his case. The Commission has examined the remainder of the applicant's complaints as they have been submitted by him. However, after considering these complaints as a whole, the Commission finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that the remainder of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)