17885/91

 AS TO THE ADMISSIBILITY OF Application No. 17885/91 by H.S. against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 12 January 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 27 December 1990 by H.S. against Switzerland and registered on 11 March 1991 under file No. 17885/91; 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 facts of the case, as submitted by the applicant, may be summarised as follows: The applicant, a German citizen born in 1935, resides in Berlin. Before the Commission, he is represented by Mr E. Braun, a lawyer practising in Zürich. Particular circumstances of the case Since 1970 the applicant maintained business connections with the T-Financing-Company Ltd (the T-Company). In 1974, the T-Company terminated his credit account and unsuccessfully requested repayment of the credit. In order to obtain security for its claim the T-Company on 14 October 1976 requested the Zürich District Court (Bezirksgericht) on the basis of Section 271 para. 4 of the Swiss Bankruptcy Act (see below, Relevant Domestic Law) provisionally to seize the applicant's credit accounts. On 3 January 1977 the T-Company brought an action against the applicant before this Court requesting payment of the credit granted to the applicant. In the ensuing proceedings the applicant contested the personal nature of the credit, claiming that it had been taken for the account of a company he had worked with. The applicant also claimed damages from the T-Company. In its judgment of 28 December 1979 the District Court ordered the applicant to pay 1.062.134,20 SFr and interests to the T-Company. The Court found inter alia that the applicant had unequivocally acknowledged having obtained the credit for personal purposes. In his subsequent appeal to the Zürich Court of Appeal (Obergericht) the applicant brought a further claim for unjust enrichment against the T-Company. In order to prove the accuracy of his allegations he requested the hearing of witnesses. The Court of Appeal dismissed the applicant's appeal on 28 May 1982. His plea of nullity was dismissed on 5 September 1983 by the Zürich Court of Cassation (Kassationsgericht). However, upon his public law appeal the Federal Court (Bundesgericht) quashed this decision on 1 February 1984; the Court found in particular that the Court of Appeal had not taken certain evidence which it had nevertheless regarded as relevant. As a result, on 2 July 1984 the Zürich Court of Cassation quashed the decision of the Court of Appeal, finding in particular that the further evidence which had to be taken, could be obtained either by examining a witness or by questioning the parties. Proceedings were then resumed before the Zürich Court of Appeal which on 20 November 1984 again dismissed the appeal. The Court regarded it as unnecessary to hear witnesses concerning the applicant's claim for damages, as the damage resulted mainly from the applicant's own conduct, and a causal link between any conduct of the T-Company and the applicant's damage need not to be established. The applicant's further appeal was partly upheld by the Federal Court on 29 November 1985. It found that the facts concerning the claim for unjust enrichment had not been sufficiently assessed by the Zürich Court of Appeal which was therefore requested to take evidence in order to complete the establishment of the facts. On 1 December 1986 the Zürich Court of Appeal held a hearing at which it heard one of the witnesses proposed by the applicant. As the other witness proposed had died in 1983, the applicant requested the hearing of two new witnesses who would testify instead. He also submitted documents as evidence in order to prove the accuracy of the assigned claim. On 13 March 1987 the Zürich Court of Appeal dismissed the appeal without having taken any further evidence. Upon the applicant's plea of nullity, the Zürich Court of Cassation, on 7 December 1987, quashed the decision of the Zürich Court of Appeal on the ground that the latter should have questioned all witnesses proposed by the applicant. Proceedings were resumed before the Zürich Court of Appeal. On 8 November 1988 the Court heard the witnesses proposed by the applicant. On 9 January 1989 the applicant filed further observations with the Court in which he requested the taking of further evidence. On 7 March 1989 the Zürich Court of Appeal dismissed the applicant's appeal. The applicant filed a plea of nullity in which he complained that his request of 9 January 1989 for the taking of evidence had not been considered. On 2 December 1989 the Zürich Court of Cassation dismissed the plea of nullity on the ground that the Zürich Court of Appeal had already failed to consider this evidence in its decision of 13 March 1987. The judgment continued: "In his then plea of nullity this was not contested by the applicant. The applicant is thus precluded from raising this complaint for the first time in his present plea of nullity." ("In der damals erhobenen Nichtigkeitsbeschwerde war dies vom Beschwerdeführer nicht gerügt worden, womit es dem Bescherdeführer verwehrt ist, diese Rüge erstmals mit der vorliegenden Nichtigkeits- beschwerde zu erheben."). The applicant lodged a public law appeal and an appeal which were both dismissed by the Federal Court on 21 March 1990, the decisions being served on the applicant on 28 June 1990. In particular, the Federal Court did not consider it arbitrary that the Court of Cassation had not admitted the applicant's complaint on the ground that he had not raised it previously. Relevant domestic law According to Section 271 para. 4 of the Swiss Bankruptcy Act (Schuldbetreibungs- und Konkursgesetz), the creditor may apply for the provisional seizure of the assets of the debtor inter alia if the latter does not reside in Switzerland. According to Section 59 para. 1 of the Swiss Federal Constitution (Bundesverfassung), if a solvent debtor resides in Switzerland, assets located outside the Canton where he resides may not be seized. COMPLAINTS 1. Under Article 6 para. 1 of the Convention the applicant complains that he lost his case because his request for the taking of evidence was only granted after two appeals to the Federal Court; these proceedings having taken eight years, the main witness had died before he could testify. The applicant claims that a period of eight years between the request for the taking of evidence, and the hearing of witnesses breaches the right to be heard "within a reasonable time" under this provision. 2. Under Article 6 of the Convention the applicant also complains that evidence which he submitted on 9 January 1989 was not considered because he had not filed it in a previous plea of nullity. 3. Under Articles 6 and 14 of the Convention the applicant complains of discrimination in that Section 271 para. 4 of the Bankruptcy Act permits seizure of foreigners' assets, whereas Swiss citizens are treated differently under Section 59 para. 1 of the Constitution. THE LAW 1. The applicant raises various complaints under Article 6 (Art. 6) of the Convention, either alone or taken together with Article 14 (Art. 14) of the Convention. 2. With regard to two of these complaints, the Commission recalls that, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. a) The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the evidence proceedings as a result of which the principal witness died and other witnesses had only insufficient recollection. However, the applicant has not shown that during these proceedings he filed a complaint with the authority concerned, and in last resort with the Federal Court, to complain about their undue length (cf No. 12929/87, Dec. 5.2.90, D.R. 64 p. 132; S. v. Switzerland, Comm. Report 14.1.93). b) The applicant complains under Articles 6 and 14 (Art. 6, 14) of the Convention of discrimination in that Swiss law permits the seizure of assets of foreigners but not of Swiss citizens. However, also in this respect he has not shown that he raised this complaint in the domestic proceedings and that in last resort he obtained a decision of the Federal Court thereupon. c) The applicant has not therefore exhausted the remedies available to him under Swiss law. In this respect the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention. 3. Insofar as the applicant complains under Article 6 (Art. 6) of the Convention that evidence which he submitted was not considered as he should have filed it in a previous plea of nullity, the Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess evidence before them (see mutatis mutandis Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, para. 26). In the present case it does not appear unfair that the domestic courts did not consider further evidence produced by the applicant as this complaint could have been raised in an earlier plea of nullity. The remainder of the application is therefore 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 INADMISSIBLE. Secretary to the Acting President of the Second Chamber Second Chamber (K. ROGGE) (H. DANELIUS)