17495/90

 AS TO THE ADMISSIBILITY OF Application No. 17495/90 by Peter KÜBLI against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 2 December 1992, the following members being present: MM. G. JÖRUNDSSON, Acting President of the Second Chamber S. TRECHSEL A. WEITZEL J.-C. SOYER H. G. SCHERMERS H. DANELIUS Mrs. G. H. THUNE MM. F. MARTINEZ L. LOUCAIDES J.-C. GEUS Mr. K. ROGGE, Secretary to the Second 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 28 September 1990 by Peter KÜBLI against Switzerland and registered on 27 November 1990 under file No. 17495/90; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The applicant, a Swiss citizen born in 1954, is a lawyer residing at Küsnacht in Switzerland. Particular circumstances of the case The applicant had the "P.K. Lawsoft" company registered in the Zurich Commercial Register (Handelsregister). On 5 April 1989 the B. company introduced before the Zurich Commercial Court (Handelsgericht) an action against the applicant, claiming 20,702.55 SFr. The action related inter alia to the "P.K. Lawsoft" company. On 18 July 1989 the entry of this company in the Commercial Register was deleted. The applicant filed an objection against the action, claiming that the court lacked jurisdiction ratione materiae (sachliche Zuständigkeit). On 23 August 1989 the Zurich Commercial Court dismissed the objection, inter alia as at the time when the action was filed the applicant's company had been registered in the Commercial Register. The applicant filed a plea of nullity with the Zurich Court of Cassation (Kassationsgericht), claiming that according to Section 188 of the Zurich Code of Civil Procedure the Commercial Court should have based its ruling on the circumstances prevailing on the day of its decision, i.e. 23 August 1989 (see below, Relevant domestic law); however, the company was then no longer registered for which reason the Commercial Court lacked jurisdiction. The plea of nullity was dismissed by the Court of Cassation on 16 November 1989. The Court found inter alia:

"In respect of the jurisdiction ratione loci the Code of Civil Procedure expressly states that the court's jurisdiction is determined according to the circumstances at the time when the action is filed (Section 16 of the Code of Civil Procedure). The jurisdiction ratione materiae is examined by the Court ex officio when the action is filed (Section 108 of the Code of Civil Procedure). The principle of perpetuatio fori also applies to the jurisdiction ratione materiae; after an action has been filed does not cease to exist because of a change of circumstances which have determined the jurisdiction... This applies in particular to the deletion of the entry of a party in the Commercial Register..."

"Für die örtliche Zuständigkeit statuiert die Zivilprozessordnung ausdrücklich, dass sich der Gerichtsstand nach den Verhältnissen zur Zeit, da die Klage rechtshängig wird, bestimmt (§ 16 ZPO). Die sachliche Zuständigkeit wird vom Gericht im Zeitpunkt der Rechtshängigkeit von Amtes wegen geprüft (§ 108 ZPO). Der Grundsatz der perpetuatio fori gilt sodann auch für die sachliche Zuständigkeit; nach Eintritt der Rechtshängigkeit fällt diese durch Veränderung der Umstände, welche sie begründet haben, nicht mehr dahin ... Dies gilt insbesondere auch für den Wegfall des Eintrags einer Partei im Handelsregister..." The applicant then filed an appeal (Berufung) and a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht). The Federal Court rejected the appeal on 17 November 1989 as being inadmissible. On 15 March 1990 the Federal Court dismissed the public law appeal, agreeing with the interpretation of the Zurich Code of Civil Procedure by the Court of Cassation. In the Court's opinion, the previous instance had not decided arbitrarily. The Court's decision was served on the applicant on 30 March 1990. Relevant domestic law According to Section 16 of the Zurich Code of Civil Procedure, a court's jurisdiction ratione loci (Gerichtsstand) is determined by the circumstances at the time when an action is filed (da die Klage rechtshängig wird). According to Section 188 of the Code, the court shall base its decision on the facts as they exist at the time when the final decision is given. COMPLAINTS 1. The applicant complains that the Swiss courts breached his right to a "tribunal established by law" within the meaning of Article 6 para. 1 of the Convention by assuming that the Zurich Commercial Court was competent to decide the action brought against him. The competent court should have been the Meilen District Court. The applicant submits that there is no provision in the Zurich procedural law according to which jurisdiction ratione materiae continues on the basis of the circumstances prevailing when the action was filed. The application of Section 16 of the Zurich Code of Civil Procedure to his case in fact amounted in essence to judicial legislation. 2. The applicant complains under Article 13 of the Convention that he did not have an effective remedy in that the Federal Court only examined whether the previous decision had been arbitrary (Willkürprüfung). THE LAW 1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that there was no legal provision in the Zurich procedural law providing in his case for the jurisdiction ratione materiae of the Zurich Commerical Court. Rather, the competent court should have been the Meilen District Court. According to the Commission's case-law, it is the purpose of the requirement in Article 6 para. 1 (Art. 6-1) of the Convention that courts shall be "established by law" that the judicial organisation in a democratic society must not depend on the discretion of the Executive, but that it should be regulated by law emanating from Parliament. Moreover, the term "a tribunal established by law" in Article 6 para. 1 (Art. 6-1) envisages the whole organisational set-up of the courts, including not only the matters coming within the jurisdiction of a certain category of courts, but also the establishment of the local courts, and the determination of their local jurisdiction (see Zand v. Austria, Comm. Report 12.10.78, para. 69, D.R. 15 p. 80). However, Article 6 (Art. 6) does not grant the defendant a right to choose the jurisdiction of a court. In this respect, the Commission's task is limited to examining whether reasonable grounds existed for the authorities to establish the jurisdiction (see No. 16875/90, Dec. 10.10.90, to be published in D.R.). In the present case, the Commission notes that when the action was filed against the applicant, the company was registered in the Zurich Commercial Register. According to Section 108 of the Zurich Code of Criminal Procedure, the jurisdiction ratione materiae of the Zurich Commercial Court was thus established. Subsequently, the entry of the applicant's company in the Commercial Register was deleted. The Commercial Court nevertheless regarded itself as competent to deal with the action. The Commission observes that the Swiss courts, when interpreting the Zurich Code of Criminal Procedure and determining the jurisdiction of the Zurich Commercial Court, relied on the principle of perpetuatio fori, well known in the legal systems of the Convention States. The Commission does not find it unreasonable that the Swiss courts considered that the principle of perpetuatio fori also applied with regard to jurisdiction ratione materiae, in particular in that, after an action had been filed and such jurisdiction had been established, it did not cease to exist where the defendant was no longer listed in the Commercial Register. 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. 2. Under Article 13 (Art. 13) of the Convention the applicant complains that he did not have an effective remedy in that the Federal Court only examined whether the previous decision had been arbitrary. However, even assuming that the applicant has an arguable claim to be the victim of a violation of the rights set forth in the Convention, the Commission finds that the applicant's complaints are directed against the decisions of three courts, namely of the Zurich Commercial Court of 23 August 1989, the Zurich Court of Cassation of 16 November 1989, and the Federal Court of 15 March 1990. It follows that a remedy against a violation of the Convention allegedly committed by these courts would require the possibility to appeal against their judgments. However, the right to appeal is not as such guaranteed by Article 13 (Art. 13) of the Convention, and this provision cannot as a rule be relied upon in circumstances where the alleged violation of the Convention lies in the decision of a court (see Nos. 12629/87 and 13965/88, S. v. Switzerland, Dec. 9.11.89, to be published in D.R.). The remainder of the application must therefore also be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Second Chamber Acting President of the Second Chamber (K. ROGGE) (G. JÖRUNDSSON)